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1995-44150-Ordinance No. 95-081 Recorded 12/21/1995I REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUn IL V, An Ordinance Amending PL -20, Deschutes County Year 2000 Comprehensive Plan, Revising the ESEE Analysis for Surface Mining * V y Site No. 404, and Declaring an Emergency. * 0148-1632 ORDINANCE NO. 95-081 WHEREAS, tax lot 200 in Sections 1 and 12 of Township 19 South, Range 14 East, Willamette Meridian (the subject property) encompasses 440 acres zoned Surface Mining (SM) and designated on the Comprehensive Plan map for Surface Mining (SM) and is located within a Wildlife Area (WA) Combining Zone; and WHEREAS, the subject property is listed as Site No. 404 on the County's inventory of mineral and aggregate resource sites; and WHEREAS, Howard M. Day has proposed a Plan Amendment to PL -20, the Deschutes County Year 2000 Comprehensive Plan, to adopt a revised Conflict Analysis and ESEE Findings and Decision for the subject property for the purposes of incorporating winter operating conditions recommended by the Oregon Department of Fish and Wildlife regarding surface mine operations in a portion of the North Paulina Winter Range, and recognition of drilling and blasting in the northern portion of the subject property; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, has recommended approval of the proposed Plan Amendment to PL -20; and WHEREAS, after notice was given and hearing conducted on December 20, 1995, in accordance with applicable law, the Board of County Commissioners has considered the Hearings Officer's recommendation and testimony at the hearing; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. Adoption of ESEE. That the Resource Element of PL -20, the Deschutes County Year 2000 Comprehensive Plan, as amended, is further amended to amend the Conflict Analysis and ESEE Findings and Decision for the subject property, as set forth in the ESEE document attached hereto as Exhibit A and incorporated herein by this reference, with additions set forth in bold-faced type and deletions bracketed. 1 -ORDINANCE 95-081 1-,:y ;-, N.KRORi Y D ,r9. DEC271995 DECQEC 21 0148-163 Section 2. Findings in support of its decision. The Board adopts the findings in the ESEE document and the findings set forth in Section IV.B. of the Decision of Hearing Officer, attached as Exhibit B and incorporated herein by reference. Section 3. Administration. The County may impose and collect such fees as are appropriate to cover the County's costs for administering the costs of monitoring compliance with wildlife protection conditions. Section 4. Repeal of Ordinances as Affecting Existing Liabilities. The repeal, express or implied of any ordinance, ordinance provisions, code section or any line of any map by this ordinance shall not release or extinguish any duty, condition, penalty, forfeiture, or liability incurred under such ordinance provision, code section or map feature unless a provision of this ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force 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 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 day of December, 1995. ATTEST: Recording Secretary 2 -ORDINANCE 95-081 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON BARRY H. SLAUGHTER, Chair RO RT L. NIPPER, Co s Toner 0148 -I&A CONFLICT ANALYSIS AND ESEE FINDINGS AND DECISION Site No. 404 Site No. 404, occupying tax lot 200 located in Township 19 South, Range 14 E.W.M, portions of Sections 1, 2, and 12 consists of two areas which have been separately considered for inclusion in the County's Goal 5 aggregate inventory. The first area, consisting of 200 acres, is hereinafter referred to as the "existing surface mining area." It came before the Board of Commissioners (Board) for a hearing on August 7, 1989. On October 17, 1989, the Board made a Preliminary decision on this area. By the adoption of findings and an ESEE decision, the Board confirmed and ratified its preliminary decision for the first area of Site No. 404. The ESEE and findings for the existing surface mining area for Site No. 404 was adopted by the Board on July 16, 1990. (Ord. No. 90-029). The second area of Site No. 404 consisting of 240 acres is situated immediately south of the existing surface mining area and is hereinafter referred to as "the hard rock area" or "the expansion area. " The Deschutes County Hearing's Officer conducted a hearing on May 2, 1995 to determine whether the second area should be made a part of site No. 404, listed on the County, s inventory of aggregate sites and classified under the County's comprehensive plan and zoning regulations as SM (Surface Mining). The Hearing's Officer made a Preliminary decision (Findings, Recommendation and Decision; County File No. Pa -95-3 and ZC-95-3) regarding the expansion area. The site came before the Board for hearing on May 2, 1995. By adoption of these findings and this ESEE decision, the Board confirms and ratifies that recommendation and decision on the expansion area of Site No. 404 and incorporates the findings and decision on the expansion area in the original ESEE for Site No. 404. The purpose of the hearing before the Board was to determine whether the expansion area should be listed on the County's inventory of aggregate sites and should be classified under the County's Comprehensive Plan and zoning regulations as "SM" (Surface Mining). For the reasons given below, the Board determines that the expansion area should be classified Sm. PRELIMINARY FINDINGS Site No. 404 comprises approximately 440 acres and is located approximately one mile north of Highway 20 and one and one-half miles north of Horse Ridge. The site is owned by Howard M. Day. The existing surface mining area and the expansion area are currently zoned SM and WA. Most of the surrounding land is owned by the Bureau of Land Management. 1 - ESEE FINDINGS AND DECISION - SITE NO. 404 EXHIBIT A � �r„ - 9( Page 0148-1635 The existing surface mining area of Site No. 404 was identified as containing aggregate resources in the County's Goal 5 aggregate inventory adopted by the Board on December 6, 1988. Based on the existing surface mining area's inclusion on the inventory, a hearing was held to determine whether to zone it under Goal 5 to protect the aggregate resource. It was so zoned on July 16, 1990. Deschutes County has previously determined that an area within one-half mile of a mining site constitutes the impact area surrounding a mining site. This determination has been accepted by the Department of Land Conservation and Development (DLCD) as evidenced by DLCD's acknowledgement of the County's Comprehensive Plan with respect to Goal 5. Existing or possible uses within this impact area must be considered when determining whether or not any conflicts with mining exist. Uses within the impact area for the subject parcel include those uses permitted in an EFU zone, including farming and grazing. The subject property and surrounding lands lie within a deer winter range that is designated on the County's Comprehensive Plan maps and specifically identified by the Oregon Department of Fish and Wildlife (ODFW) as the Northern Paulina winter deer range. The County is presently studying the feasibility of siting a new solid waste landfill in this area, as the County's Knott Road landfill is nearing capacity. No specific property has been identified as a landfill site. Geotechnical evidence suggests that the expansion area in Site 404 contains approximately 800,000 - 2,000,000 cubic yards of hard rock, and 1.5 million cubic yards of gravel, topsoil and fill. The Deschutes County Land Use Hearing's Officer has recommended that the expansion area be included on the Deschutes County Goal 5 Mineral and Aggregate inventory. Based upon the site's quantity and quality of an identified source of mineral and aggregate resources, a hearing was held by the Board o to determine whether to zone the expansion area on the site under statewide planning goal 5 to protect the mineral and aggregate resource. APPLICABLE CRITERIA Criteria applicable to this decision are Statewide Planning Goal 5, its implementing rule, OAR 660-16-000, and Deschutes County Ordinance 88-040, revising the Deschutes County Year 2000 Comprehensive Plan regarding surface mining goals and policies. HEARING AND EXHIBITS Prior to the hearings on this site, staff reports and a Conflict Analysis and ESEE Findings and Decision (the "ESEE") were prepared setting forth the site's aggregate resources and conflicting resource and land use values. The reports and the ESEE, which were entered into the record at the hearings before the Board 2 - ESEE FINDINGS AND DECISION - SITE NO. 404 ®148-1636 on August 7, 1989, July 12, 1995 and December 20, 1995, set forth the site's aggregate resources and identified conflicting resources and land uses and their impacts and evaluated the economic, social, energy, and environmental consequences of protecting the mineral resource or in the alternative, protecting the conflicting values or uses. ESEE FINDINGS AND CONCLUSIONS 1. Inventory. The County's Goal 5 mineral and aggregate inventory adopted by Ordinance 95-025 established that the site contains 193,000 cubic yards of aggregate resource in the existing surface mining area. The applicant's geotechnical engineer also prepared a report based on an examination of the existing and expansion areas which establishes that the site (both the existing surface mining area and the hard rock area) has 800,000 to 2 million cubic yards of aggregate rock which appear capable of meeting the Oregon Department of Transportation specifications for road base and asphalt rock and approximately 3 million cubic yards of sand, gravel, and topsoil resources. As a result of ongoing operations, the applicant has determined the availability of an additional 142,000 cubic yards of aggregate resource located in a basaltic rock outcropping on the existing surface mining area. Based on a report by the applicant's geotechnical engineer, this additional 142,000 cubic yards is a significant resource which can be used to produce a fair quality commercial -based aggregate and a fair quality drain rock. 2. Site Characteristics. The site is part of a working ranch and is essentially level with rock outcroppings. The site is along the northwestern base of Bear Creek Buttes and no other special features have been noted. It consists of natural grazing land with juniper trees, sagebrush and grasses. There are no improvements or utilities on the subject site other than the onsite ranch house. The surrounding area consists of natural range land with no improvements within one-half mile. The site is currently being mined. 3. Conflicts Analysis A. Resource Conflicts. (a) Wildlife. The Department of Fish and Wildlife (ODFW) has identified this site for deer winter range. The resource element of the County's comprehensive plan shows the site to fall within the North Paulina deer winter range. The County finds that winter wildlife habitat for deer is a significant Goal 5 resource, in conflict in certain instances with 3 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-163'7 zoning for surface mining. Full protection of the deer winter habitat resource could preclude zoning for surface mining operations as surface mining results in the destruction of deer winter habitat, alters the topography to create deep holes where deer may become trapped by predators, and causes noise, dust emissions and an increased human presence which make the area less suitable for use as deer habitat. In other surface mining sites in the County located within deer winter range areas, the Board has determined, with advice from ODFW, that surface mining conflicts with deer winter range were of such magnitude as to require closure of such surface mining sites during winter months. With regard to this site, the Board finds, based upon a study conducted by ODFW, that the conflicts between wintering deer and surface mining activities in the northwesterly area of the North Paulina WA zone (where this site is located) are such that a blanket restriction need not apply to sites falling within that area. The ODFW findings are set forth in a document entitled "ODFW Proposed Changes to Surface Mine Operating Guidelines in Zoned Big Game Winter Ranges." ODFW analyzed the conflicts with surface mining presented by wintering deer in a subarea of the North Paulina deer winter range east of Highway 97 and the Bend Urban Area, south of the Redmond Urban Area and north of Highway 20, as set forth in the map attached hereto as Exhibit A. The subject site falls in the southwesterly corner of that area. ODFW concluded, as set forth in testimony before the Planning Commission on September 28, 1995 and in its written report submitted to the Planning Commission and this Board, that conflicts between deer and surface mining activity in this area are less severe in the winter months than conflicts in other deer winter range areas in the County. This is due to a combination of: (1) lower development pressures and lower expected development densities in this area than in other designated winter deer ranges; and (2) less frequency of use by deer of this portion of the North Paulina deer winter range in good weather, as measured against the management objective for each area. In particular, ODFW concluded that unlike other deer winter ranges in the County, deer are usually present in this portion of the North Paulina range only when winter weather conditions become severe. These factors enabled ODFW to recommend to the County that conflicts between surface mining and deer winter range in this northwesterly area of the North Paulina deer winter range could be managed under a plan that prohibited mining activities only when weather factors indicate that deer will need to use the areas or that such numbers of deer are observed using the area that suspension of mining activities is warranted. The Board adopts as its findings the findings of ODFW set forth 4 - ESEE FINDINGS AND DECISION - SrM NO. 404 {148-1638 above. Further discussion of the specific program for balancing the conflicting uses will be set forth in Section of this ESEE document entitled "Program to Meet the Goal." Resource Conflicts Protection of Aggregate Resource 5. Economic Consequences. The County finds that the economic consequence of protecting the aggregate conflicts with other natural resources is difficult to measure, given that deer habitat does not have any economic values attached to it. Deer winter habitat does not have any economic value attached to it. Deer generate indirect economic benefits to the County when hunters travel to hunt the deer and when tourists travel to the County to hunt deer. Additionally, a few tourists or local residents might travel to the subject property to view wildlife. Economic consequences would tend to be of a secondary nature, such as a reduction in tourists who would come to the site to view. 6. Social Consequences. The County finds that the social consequences of protecting the mineral resource over the other natural resources would be negative. Surface mining would have negative impacts on wildlife. Given that few people live in the area, the social consequences would be felt primarily by those travelling Highway 20 who might be deprived of wildlife viewing opportunities. 7. Environmental Consequences. The County finds that allowing surface mining activities would have adverse environmental consequences on deer habitat. Surface mining activities would reduce the available cover and forage at the site, which would cause increased competition among deer for the remaining forage and cover. Some wildlife would be forced to leave the area to find other food sources and cover, thus adding more competition in other areas for these resources. Increased truck traffic associated with mining activities could increase the mortality rate for the area's wildlife. In some cases over the long term, surface mining can be beneficial to environmental values in that it gives an opportunity for a site already desecrated by the actions of man or otherwise lacking in natural values to be improved as part of the reclamation process. There is no evidence to suggest that this is one of those instances. 8. Energy Consequences. The County finds that the energy consequences of protecting the mineral resource over the other natural resources would be to increase the energy consumption at the site due to fuel expenditures needed to run the heavy equipment and processing equipment as well as the fuel expended in transportation 5 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-1639 of the product to its end use. Such energy use would be bound to occur in any event. Aggregate is a resource that is needed in the County and failure to protect the mineral resource at this site would only mean that such energy use would occur elsewhere. This site is conveniently located near the rapidly growing eastside of Bend, where most fill material will be needed. Travel from this location to the eastside of Bend may occur without passing through the center of Bend, as presently done by trucks f rom mines located to the west of Bend. This fact will enable trucks to conserve energy as they will not be required to stop and start for the numerous traffic lights in the Bend community. The County finds generally that the energy consequences of not allowing mining of sites convenient to highway construction and maintenance sites such as this one would be greater than if such mining were not allowed, due to the greater distances involved in transporting aggregate to the point of use. Protection of Conflicting Goal 5 Resources 9. Economic Consequences. Protection of the natural resources would preclude mining at the site. Deer winter habitat is in limited supply and the proposed surface mine would cause displacement of wildlife and increased competition in remaining unaffected areas. The County finds that, as reflected in the goals and policies statement of the County comprehensive plan, the County consumes 2 million cubic yards of aggregate materials each year. Under the laws of supply and demand, failure to protect sufficient amounts of aggregate for the 20 -year planning cycle will result in an increased cost in aggregate resources. Increases in mineral and aggregate costs would in turn result in increased construction costs. To the extent that aggregate would need to be hauled in from outside the area, the cost of aggregate would be increased by haulage costs, which the Board finds to be at a rate of 22 cents per cubic yard per mile. The County finds there to be a total of 73,538,000 cubic yards of sand, gravel and rock in the County, accounting for the inventoried amount of sand, gravel and rock and the amount of those materials located at sites within the urban growth boundary. The County finds that virtually all sites have either resource or land use conflicts with surface mining. Consequently, if more than 46% of the aggregate sites were to be eliminated due to resource conflicts, the County would not have preserved sufficient aggregate to meet its needs. The County finds that this particular site standing alone is not essential to meeting the County's aggregate needs; however it also recognizes that if enough other sites are eliminated due to conflicts, it could be. Furthermore, the County recognizes the importance of preserving aggregate resources for highway maintenance and construction and finds that 6 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148=1040 failure to protect such sites located along Highway 20 would result in increased costs for maintenance and construction on Highway 20 east of Bend. The County finds that aggregate resources are a commodity with a market value. Failure to allow mining of such resources would prevent the value of such resources being realized by the local economy. Although the number of jobs represented by the local aggregate industry is small in number, manufacturing and construction jobs tend to pay at higher rates than those found in the service sector and are an important part of the local economy. Finally, the County finds that the economic impacts of failing to preserve sufficient aggregate reserves is not readily mitigated. Mineral resources are locationally dependent and are finite resources. 10. Social Consequences. Preserving the conflicting natural resources at the site could have negative effects on the general welfare of the County if insufficient amounts of aggregate are preserved. Regardless of the amount of supply readily available, there will always be a demand for aggregate resources. The County' s roads would still need improvement and maintenance. A deterioration of the County' s roads and streets would negatively impact the liveability and quality of life in Deschutes County. The County also recognizes the social consequences of increased building costs that can result from a shortage of readily available aggregate resources. 11. Environmental Consequences. Protection of the conflicting natural resource would preclude mining at the site. The noise, traffic, human presence and disruption of habitat associated with surface mining is inimicable to the protection of deer habitat. Therefore, protection of the natural resources by precluding mining would have positive environmental consequences. As with the mineral and aggregate resource, wildlife resources are limited by locational factors. Wildlife habitat is continually shrinking in the face of increased development. 12. Energy Consequences. As mentioned above, the energy consequences of protecting the natural resource values of this site and others like it along the Highway 20 corridor would likely involve increased haul distances. The County finds that protection of natural resource values at the site would have negative energy consequences. 13. Relative Values of the Conflicting Resources and Aggregate Use. The County finds that the natural resources and the aggregate resource are important relative to one another. Both aggregate resources and the conflicting natural resource of deer winter habitat are finite resources and locationally dependent. Aggregate resources are in limited supply in the County and there is a need 7 - ESEE FINDINGS AND DECISION - SrM NO. 404 0.48-1641 for the aggregate resources along the Highway 20 corridor for highway maintenance and to construction sites. Deer habitat is continually being lost to new development. Therefore, the County finds that both the aggregate resource and the conflicting natural resources should be protected. Accordingly the County finds that under OAR 660-16-010(3) protection of the aggregate resource shall be limited by protection of the natural resources. Conflicting Uses Protection of Aggregate Resource 14. Economic Consequences. The economic consequences of protecting the aggregate resource relates to the impacts of surface mining on adjacent uses, the value of aggregate resources as a commercial commodity and the impacts of protecting employment in the mining industry and the development opportunities foregone by development of the site. Cattle ranching by itself could not sustain commercial values. While the impacts of surface mining may in individual cases have a short term impact on property values of surrounding properties, trend analysis from the tax assessor's records of specific parcels either adjacent to or within one-half mile of both existing and potential surface mines indicates that there were no drastic fluctuations in these property values. This same analysis shows that there has been no appreciable decline in sales of these or similar types of properties. The impact to surrounding property owners would be if regulations to protect the mineral resource were enacted that would make surrounding properties unbuildable. One potential cost to the community at large is the cost of road repairs necessitated by increased heavy truck traffic on public roads. This is not viewed as a major problem in this case, due to the fact that the site is to be used as a source for public road projects and would not involve everyday transit of trucks to and from the site as would be the case with commercial sites. Allowing surface mining activities at this site could have some short-term negative impacts on the ability to utilize this property for other uses. However, nothing indicates that such uses are likely to occur in this case, given the remoteness of the site and nothing indicates that such uses would have a higher economic value than use of this site for surface mining. There is no shortage of land in the County available for development for the uses allowed in the EFU zone, while the supply of aggregate resources in the County is limited. Furthermore, surface mining is a transitional use, and after reclamation the land surface would then become available for other uses. 8 - ESEE FINDINGS AND DECISION - SITE NO. 404 014S--1642 15. Social Consequences. Preserving this site for the production of mineral and aggregate resources would have a major impact on the quality of life associated with the other land uses in the area. The negative impacts of noise, fugitive dust emissions, and increased truck traffic would contribute to the impact on the livability, scenic quality and compatibility of other uses in the vicinity of the project. Such impacts may be mitigated, however, through environmental controls on the mining operation. The County finds that the social consequences of mining activity are low in this case due to the fact that there are few existing land use conflicts and likely to be few such conflicts in the future due to the zoning and public ownership of surrounding lands. 16. Energy Consequences. The County finds that preserving this site for the production of aggregate resources would have overall positive energy consequences. As stated above, the energy consumed on site by mining equipment is likely to occur at some mining site in any event, as there is a basic need for such resources. Haul distances to Highway 20 repair jobs in the area would be minimized. To the extent that surface mining would preclude or discourage development of the surrounding rural lands, the energy consequences would likewise be positive. 17. Environmental Consequences. The County finds that protecting the site for mining would have negative environmental consequences for the same reasons given under paragraph 15 above. The County further finds that such impacts can be mitigated. Protection of Conflicting Land Uses 18. Economic Consequences. With the exception of geothermal development and farm and forest uses, all uses in the surrounding zoning designations are classed as noise sensitive uses for purposes of DEQ noise regulations. Farms uses may be noise sensitive uses in certain situations, such as with livestock operations. Protection of such surrounding conflicting uses can have the effect of precluding or limiting surface mining activity due to noise regulations. Likewise, dust, traffic and aesthetic impacts place constraints on surface mining operations amongst conflicting land uses. While the elimination of part or all of any one site (except R.L. Coats's site No. 308 in 17-12-18 of 10 million cubic yards) would not significantly impact the total supply of aggregate in Deschutes County, if every site with conflicting uses were eliminated for that reason, Deschutes County would be unable to meet its aggregate needs. Almost every aggregate site has some degree of conflict with surrounding land uses. In light of that fact, each aggregate site takes on importance, as cumulatively, individual 9 - ESEE FINDINGS AND DECISION - SrM NO. 404 sites with conflicts could be eliminated an prevent "Count from P Y meeting its aggregate needs. 19. Social Consequences. The County finds that the social consequences of allowing incompatible development to preclude the use of all or part of this site would be the same as those under the Goal 5 discussion above. 20. Environmental Consequences. The environmental consequences of protecting surrounding land uses is mixed. Protecting the conflicting land uses could well preclude mining at the site. This would have positive environmental consequences in that the noise I dust, traffic, and aesthetic impacts associated with surface mining would be prevented. However, protecting the conflicting land uses, especially in a site such as this that is largely undeveloped, can also have negative environmental impacts. Thus, if surrounding areas become developed, they, too, can have a detrimental impact on wildlife habitat, reducing the overall supply of food and cover and increasing competition for adjoining undeveloped habitat. 21. Energy Consequences. Allowing development that would preclude or curtail mining at this and other sites along the Highway 20 corridor would create greater energy consumption because the mineral and aggregate resources for upkeep and improvement of Highway 20 would have to come from sites located further away. Furthermore, increased development at this remote site would increase energy use from those living in or patronizing the allowed uses. Such development would likely lead to a long term energy commitment because of the life span of such development. 22. Relative Values of Values of Aggregate Use and Conflicting and Conflicting Uses. Based upon the analysis of the ESEE consequences of protecting the identified conflicting uses and protecting the aggregate resource and the relative weight of the conflicting uses and aggregate resource, the County finds that with respect to existing development both the aggregate resource and the conflicting resources and uses are important relative to one another. The aggregate has importance due to its limited availability in the County and its location near its point of use, Highway 20, and on the east site of Bend. Existing conflicting uses, if any, are important in that they represent an economic commitment to development of individual pieces of private property with economic value and expectations. Accordingly, the Board finds that pursuant to OAR 660-16-010 it will limit the use of the aggregate resource at the site in favor of the conflicting resources. Potential development in the impact area is not significant enough to be considered to be a use that would limit the use of the aggregate resource at this site. Program to Meet the Goal 10 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-1644 23. The County finds that in order to protect both the aggregate resource and the conflicting resources and uses, the site will be zoned for surface mining, subject to the following ESEE conditions: (a) Setbacks shall be required for potential conflicting residential and other development; (b) Noise and visual impacts shall be mitigated by buffering and screening; (c) Hours of operation shall be consistent with DEQ standards and applicable county ordinances; (d) The site shall not be operated from December 1 through April 30, except in conformance with the provisions set out below. (1) All surface mining operations, as defined in DCC Chapter 18.52 , must shut down during the period December 1 through April 30 unless the operator demonstrates that the following criteria are each continually satisfied: A) The snow depth, as measured in compliance with the procedures set forth in Subparagraphs (d)(2) and (d)(4) does not exceed the following: First of Month: December 6.8 inches January 11.0 inches February 14.4 inches March 9.3 inches April 4.2 inches Mid -Month: November 5.1 inches December 9.1 inches January 12.7 inches February 11.9 inches March 7.0 inches April 2.2 inches B) Deer counts, as carried out in accordance with subparagraph (d)(3) and (d)(4) do not exceed 20 deer. If no such showing is made, the operator must shut down surface mining operations without the necessity of receiving notice of shut down from the County. Such shutdown shall occur within 48 hours of observance of 11 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-1645 conditions requiring shutdown. (2) Operator shall measure snow depths in the immediate vicinity of the Hungary Flat Snow Course (off Century Drive) maintained by SCS on the first and 15th day of every month for the time period November 15 through April 15. Measurements shall be submitted to the County and ODFW by 4:00 on the day the measurements are taken. (3 ) Operator shall take deer counts on the first and fifteenth day of each month from November 15 through April 30 at four one -mile transects established in consultation with ODFW within a two-mile radius of the site. The threshhold would be reached by sighting 20 deer at any combination of the four transects. Counts shall be taken at the transects from a vehicle within one and a half hours of sunrise. Counts shall be taken and verified as accurate by a wildlife biologist acceptable to the Oregon Department of Fish and Wildlife. Animal presence data shall be provided to ODFW and the County by 12:00 PM on the day the data is gathered. (4) Data required by subsection (d)(1) shall be collected for the entire period November 15 through April 15 if operator wishes to be able to operate during any portion of the period between December 1 and April 30. (5) Notwithstanding the measurement times set forth in (d)(2) and ( d) (3) , ODFW may in response to sudden weather changes or major deer movements take measurements at times other than those specified herein. If ODFW determines that the snow depth or animal presence criteria set forth in subsection (d)(1) have been exceeded, ODFW may notify the County that the criteria have been exceeded. The County shall then notify the operator that all surface mining operations at the site must be shut down within 48 hours. (6) The conditions set forth in this subsection (d) shall be made a condition of site plan approval for the site plan of Site 404. The deer presence numerical criterion condition as set forth in subparagraph ( d) (1) above may be adjusted to account for changing conditions without requiring an amendment to the ESEE. Such adjustments shall be considered to be a modification of the site plan under DCC 22.36.040 and upon application by the operator shall be processed as a land use action. (7) Operator shall provide to ODFW by June 1 of each year a report of all the data collected during the previous winter season. These conditions shall be subject to review after 5 years to evaluate their effectiveness in protecting deer populations. 12 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-1646 The County finds that processing on site will be allowed from May 1 through November 30 each year in the existing surface mining area and in the expansion or hard rock area. Blasting and drilling will be allowed in both the expansion area and the original permitted surface mining area in order to extract the significant aggregate resources on site. Between the months of December 1 and April 30, continuation with processing, blasting and drilling shall be subject to the winter operating guidelines set forth above. Conflicting Resources "24. The County finds that surface mining use of the site will be limited by conflicting Goal 5 resource considerations by the provisions for screening and buffering to mitigate noise and visual impact. The County finds that the screening and buffering ESEE requirements are met by the screening and buffering requirements in the Deschutes County zoning ordinance. The Board finds that the ODFW has proposed a program allowing for winter operations at the site when certain snow conditions and certain deer presence indicators have not been exceeded. Those criteria are summarized in the conditions set forth above as part of the Program to Meet the Goal. The Board finds that the numerical criteria are based upon a historical relationship between snow fall and use of the subject portion of the North Paulina deer winter range and ODFW's management objective for wintering deer in the area. The Board finds that it is appropriate to allow for surface mining sites, such as Site 404, located in the northwestern portion of the North Paulina Deer Winter Range to operate in the wintertime when the specified indicators have not been exceeded. As was discussed in the conflicts section of this ESEE, the Board finds that the circumstances surrounding this portion of the North Paulina range are such that the deer population can be protected in the winter without requiring a blanket shutdown of mining operations. Shutdown will be required, however, when the ODFW criteria have been exceeded. The County finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. Aggregate Resource 25. The County will protect the mineral or aggregate resource by zoning the site SM to allow for surface mining activities. The County finds that the Deschutes County Zoning Ordinance allows mining activities such as extraction, processing, crushing, batching, and other mining- dependent uses as permitted or conditional uses and activities in the zone. Conflicting uses, such as residential uses that would irretrievably commit surface area to other uses and otherwise conflict with surface mining are not 13 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-1647 allowed uses in the zone. Agricultural and forest uses are allowed in recognition that such uses can occur without irretrievably committing the property to uses other than surface mining. In this manner the surface area of the mineral or aggregate resource is protected against establishment of uses that would prevent mining of the aggregate resources in the future. Such protection advances the goal of protection of sufficient aggregate resources to meet the County's aggregate needs. 26. The County finds that imposition of a Surface Mining Impact Area (SMIA) combining zone as a one-half mile buffer surrounding the SM zone, as set forth in The Deschutes County zoning Ordinance, will further protect the aggregate resource and the County so zones the one-half mile area surrounding the SM zone. The County finds that the SMIA zone limits conflicting uses as follows: (a) New conflicting "noise -sensitive and dust -sensitive" uses, such as single-family dwellings, may be sited closer than one- half mile to a SM zone only if the applicant has signed a waiver of remonstrance precluding protest of any allowed surface mining activities; and (b) In all cases new conflicting "noise sensitive,, and "dust sensitive" uses are prevented from locating any closer than 250 feet to an SM zone or one-quarter mile from a processing site, whichever is further. The County finds that these provisions satisfy the ESEE condition that residential and other development be subject to setbacks. The County finds that such a provision is sufficient to protect the aggregate resource from conflicting future development. 27. The County finds that, in combination with the action taken on other aggregate sites, zoning the site for surface mining and protecting the site from future surrounding conflicting land uses, the County's goal of preserving sufficient aggregate resources to meet the needs of the County has been met. Land Uses 28. Existing conflicting land uses are protected by the requirement that newly sited surface mines or expansion of existing surface mines meet screening requirements, setback requirements, noise standards, adhere to limits on maximum area of surface disturbance and other limitations set forth in the Program to meet the Goal and the Deschutes County Zoning Ordinance. 14 - ESEE FINDINGS AND DECISION - SITE NO. 404 0148-1649 DESCHUTES COUNTY PLANNING DIVISION STAFF REPORT FILE NUMBER: DATE: TIME: PLACE: APPLICANT/ OWNER: i W 1i• _tet:_ I 1 :-:911) ;,�� STAFF CONTACT: PA -95-9 November 21, 1995 7:00 P.M. Room A, Juvenile Justice Building 1128 N.W. Harriman Bend, Oregon 97701 Howard M. Day James E. Bussard Nancy Craven The applicant is requesting a Comprehensive Plan Amendment to amend the ESEE for Site No. 404 to reflect additional mineral and aggregate resources on site and to adopt a winter operating program. David B. Leslie, Associate Planner I. LEGAL CRITERIA• 1. PL -20, the Deschutes County Year 2000 Comprehensive Plan. 2. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance: -Section 18.136.030, Rezoning Standards. 3. OAR 660-12-060, Plan and Land use Regulation Amendments 4. Oregon's Statewide Planning Goals. 5. Title 22 of the County Code, Procedures Ordinance. PA -95-9 Page 1 EXHIBIT_A=�" Page 0148-1650 II. PROCEDURE• This land use action is a quasi-judicial plan amendment that involves lands designated for surface mining use. DCC 22.28.030.(A) provides authority for the Hearings Officer to make a decision on certain quasi-judicial plan amendments. However, prior to becoming effective, a quasi-judicial plan amendment must be adopted by the Board of County Commissioners. In the absence of an appeal or a review initiated by the Board, DCC 22.28.030(B) requires the Board to adopt the Hearings Officer's decision without any further testimony. III. FINDINGS OF FACT: 1. LOCATION: The subject property is located near Horse Ridge and is approximately one mile from the mouth of Dry Canyon and approximately 18 miles east of Bend. The property is surrounded by BLM property and is accessed by a mile long gravelled road from Highway 20. The subject property is identified on Deschutes County Assessor's Map #19-14 as Tax Lot #200. 2. ZONING AND COMPREHENSIVE PLAN DESIGNATION: The property encompasses 440 ares zoned Surface Mining (SM) and designated on the comprehensive plan map for Surface Mining (SM). The entire property is located within a Wildlife Area (WA) Combining Zone. 3. SITE DESCRIPTION: The property encompasses 440 acres located north of Highway 20. The entire property is surrounded by land managed by BIM. Surface mining operations occur on the northern and southern portions of the property under both DOGAMI (Oregon Department of Geology and Mineral Industries) and County permits. A majority of the northern portion of the site is generally level and has been cleared of native vegetation. Large earthen berms have been constructed with overburden material along the western and northern boundaries of this area. Surface mining activity on the southern portion of the site includes the blasting and excavation of hard basaltic rock from a localized area. This area is rises in elevation above the remainder of the property and includes a higher density of juniper. Crushing of the material excavated from this area and sizing of the mined resources occurs in a processing area on the northern portion of this mining site. A batch plant for asphaltic concrete has been approved for this mining site. PA -95-9 Page 2 An existing dwelling, a caretaker's ranch house, is located near the central eastern boundary on the south- ern portion of the property. 4. SURROUNDING PROPERTY: The subject property is surrounded by BLM property. The area known as the Badlands is to the northwest, Dry Canyon and the Horse Ridge Natural Area are located southwest. None of these geographic areas of interest are contiguous to the subject property. S. REQUEST: The applicant is requesting that the County revise its inventory to reflect the presence of hard basaltic rock on the northern portion of the site. A geotechnical report prepared by the applicant's geotech- nical engineer estimates that between 95,000 to 190,000 cubic yards of material underlies the area previously mined for fill and aggregate. The applicant also proposes a revision to the ESEE for this mining site to adopt the winter operating program recommended by the Oregon Department of Fish and Wildlife (ODFW). The applicant submitted the following material in support of this application: 1. Application and fee. 2. Burden of Proof Statement 3. Exhibit 1, ordinances and land use decision pertaining to a plan amendment and zone change adopted earlier in 1995 for the southern 240 -acre portion of the site. 4. Exhibit 2, "Proposed Changes to Surface Mine Operating Guidelines in Zoned Big Game Ranges," prepared earlier this year by ODFW in consultation with planning staff and the Deschutes County Planning Commission. 5. Exhibit 3, geotechnical report entitled "Hard Rock Source Evaluation," prepared by Mark V. Herbert & Associates for the applicant. 6. AGENCY COHMENTS: The Planning Division solicited comments from affected state and federal agencies. No comments were submitted to the Planning Division regarding this application. 7. PUBLIC COMEKNTS: No letters or comments were submitted from the public regarding these applications. PA -95-9 Page 3 IV. REWIRED FINDINGS AND CONCLUSIONS: 0148-1652 A. Comprehensive Plan Inventory Listing (� U 1. The goal of the Surface Mining chapter of the comprehensive plan is: "To protect and utilize appropriately, within the frame- work established by Statewide Land Use Planning Goal 5 and its implementing administrative rules, the mineral and aggregate resources of Deschutes County, while minimizing the adverse impacts of mineral and aggregate extraction and processing upon the resource impact area.w Staff Finding: Statewide Planning Goal 5 and its implementing rule, OAR Chapter 660, Division 16, require local governments to identify aggregate resources through an inventory of resource sites throughout the county and to determine the significance of a mineral resource site by evaluating the location, quantity and quality of a particular site. This application is being reviewed within the framework established by Statewide Land use Planning Goal 5 and its implementing admini- strative rules. The following plan policies, from the Surface Inning section of the Resource Management section of the Comprehensive Plan are applicable to review of this application: 10. A mineral and aggregate resource site not on the current inventory shall be placed on the inventory and zoned SM when the following conditions are met: (a) A report is provided verifying the location, type, quantity and quality of the resource; and (b) The Goal 5 conflict identification and resolu- tion (ESEE) process results in a determination that the resource is of sufficient importance relative to conflicting resources and uses, if any, to require protection. Staff Finding: The geotechnical report prepared by Mark V. Herbert & Associates for the applicant (Exhibit 3, Burden of Proof) indicates that the original 200 acre site (the northern portion of Site no. 404) contains from 95,000 to 190,000 cubic yards of hard basalt. The report concludes that the actual amount of material to be mined will be between these two estimates and indi- cates that the average estimate is 142,000 cubic yards. This material is generally found as a buried ridge PA -95-9 Page 4 _. 0148--1653 beneath other mineral and aggregate resources on the site which have been partially mined. The report contains a map identifying the location of the hard rock. The report indicates that on the basis of sample testing this material will not meet ODOT specifications for highway pavement. However, the report states that "the rock can probably be used to produce a fair quali- ty, commercial grade base aggregate." The material will also be suitable for "fair to good quality drain rock" after it is crushed, according to the applicant's geotechnical report. The applicant submitted a proposed ESEE Findings and Decision to reflect the presence of the additional material described in the geotechnical report. This site is already used for mineral extraction and process- ing. The new material is located beneath other deposits partially mined already. The ESEE identifies that mining conflicts with deer use in this area during the winter months. No new conflicts with other Goal 5 resources will occur as a result of the newly discovered hard rock being mined. No changes in the program to meet the goal are required for the purpose of allowing this newly discovered hard rock material to be mined. As discussed below, mining activity is proposed during winter months in accordance with an operating program developed by ODFW. The mining of the hard basaltic rock in the area originally approved for surface mining will not alter the overall use of the property or the impacts from mining activity since mining, blasting and crushing are already permitted uses at this site. The revised ESEE Findings and Decision is attached as Exhibit A to this staff report and incorporated herein by this reference, for possible adoption by the Board of County Commissioners, as required by OAR 660-16-000. 11. The County shall identify and protect sites for the storage, extraction and processing of mineral and aggregate resources within the framework of Goal 5 and its implementing administrative rules. Staff Finding: This mining site has already been identified as being an appropriate location to conduct extraction, processing and storage of mineral and aggregate resources within the framework of Goal 5 and its implementing administrative rules. The applicant's proposal will increase the amount of hard rock material listed on the inventory as being available for mining. The day to day operations will be addressed in a site plan review currently being processed by planning staff. PA -95-9 Page 5 B. Comprehensive Plan ESEE Revision for Winter Operations and Goal 5 Compliance The applicant has submitted Exhibit 2, operating guide- lines prepared by ODFW, in support of his request to be Permitted to operate during what is considered to be the "winter closure" period. The following plan policy is relevant to the applicant's proposal to operate during winter when criteria developed by ODFW are satisfied: 1124. Identified conflicts between mineral and aggregate resource sites and resources and uses in the impact area where the conflicting resources and uses have been determined to be of equal importance relative to the mineral and aggregate resource, shall be minimized by plans developed under the Goal 5 conflict resolution process and which utilize methods including, but not limited to: (a) Requiring the surface mining operator to comply with all applicable requirements of county, state and federal agencies; (b) Planning the development of lands in impact areas so as to minimize disruptions in the beneficial use of both the mineral and aggregate resource and the uses in the impact area. (c) Imposing appropriate conditions on land use permits and approvals." Staff Finding: The plan developed by ODFW was reviewed by the County Planning Commission in both a work session (July, 1995) and public hearing setting (September, 1995). The Commission recommended unanimous adoption of the plan after revisions suggested by the Commission were included in the program by ODFW. Currently this mining site is not allowed to be operated for mining activities during winter months. Material is permitted to be stockpiled at Highway 20 for hauling to Bend during the closure period. The proposed guidelines would permit any surface mining activity approved for other times of the year at this site to occur during the winter closure time of year, when certain criteria are met. The overall weather conditions in the winter range as determined by snowfall and the presence of deer in the vicinity of this particular mining site are the two criteria which will determine whether winter operations can occur. As described in Exhibit 2, snow depth will be measured at Hungary Flat near Bend and compared to the long term average snow depth. If the depth is less than 85% of the long term depth for that particular time of year PA -95-9 Page 6 then operations can be considered if the second criter- ia, deer presence, is satisfied. Four transects have been established near the mining site. Following ODFW protocol, if the number of deer counted along the transects is less than 20 operations would be allowed. Exhibit 2 explains these procedures in detail. The mining operator will need to request in writing that the County acknowledge winter operations can occur before operations can commence. The operator is requir- ed to demonstrate compliance with the ODFW program at the beginning and mid point of each month beginning in November and continuing through April. In the event winter conditions change rapidly and adverse impacts are foreseen if operations continue the County, at ODFW's request, can require that the operator shut down mining activities within 48 hours from the time of notifica- tion. The operating guidelines developed by ODFW are applica- ble only to a portion of the Northern Paulina Winter deer range. The area is depicted on maps included in Exhibit 2. The guidelines will ensure protection of the conflicting use surrounding the mining site, winter deer habitat, if the properly followed. ODFW has determined that the overall management objective for the number of deer in the affected portion of the North Paulina winter range, will not be adversely affected by the proposed operating program. Other portions of the North Paulina range and other winter range areas, such as the Tumalo and Metolius winter ranges, are not included in this operating program. These other areas are smaller, have a greater degree of pressure from on going development and the pattern of future development nearby, and will continue to be fully protected by winter closure re- quirements in the site-specific ESEE analyses for mining sites located within those areas. The plan proposed by ODFW is therefore consistent with Goal 5 in fully protecting conflicting uses at different mining sites even while allowing for possible winter operations at this site. The operator will be required to comply with all requirements of the County and ODFW with respect winter time operations, as described in detail in Exhibit 2. The surrounding land is within the Surface Mining Impact Area for one half mile outside the mining site boundary. This land is managed by the Bureau of Land Management. Therefore, disruptions to the beneficial use of the mineral and aggregate resources and the uses in the impact area are expected to not change as a result of the adoption of the proposed winter operating plan. The operator will be required to comply with the Program to meet Goal 5 requirements described in the revised ESEE and site plan requirements will be included in a review PA -95-9 Page 7 3. currently being conducted the foregoing findings, stated above will be met. Other Goals CES by planning staff. Based on the comprehensive plan policy Staff Finding: Deschutes County addressed compliance with Land Use Goals, other than Goal 5, at the time that it adopted its surface mining inventory in 1990 (Ordi- nance No. 90-029). Those findings are general, but are appropriate for applying to the present plan amendment request. OAR 660-12-060, Plan and Land Use Regulation Amendment 660-12-060 (1) Amendments to functional plans, acknowledged comprehensive plans, and land use regulations which significantly affect a transportation facility shall assure that allowed land uses are consistent with the identified function, capacity, and level of service of the facility. This shall be accomplished by either: a. Limiting allowed land uses to be consistent with the planned function, capacity and level of service of the transportation facility; b. Amending the TSP to provide transportation facilities adequate to support the proposed land uses consistent with the requirements of this division; or C. Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (2) A plan or land use regulation amendment significantly affects a transportation facility if it: a. Changes the functional classification of an existing or planned transportation facility; b. Changes standards implementing a functional classification system; C. Allows types or levels of land uses which would result in levels of travel or access which are inconsistent with the functional classification of a transportation facility; or PA -95-9 Page 8 0148=165'7 d. Would reduce the level of service of the facility below the minimum acceptable level identified in the TSP. (3) Determinations under section (1) and (2) of this rule shall be coordinated with affected transportation facility and service providers and other affected local governments. Staff Finding: The applicant's mine is the only property adjoining Highway 20 that will make significant use of the road. All other adjoining parcels are vacant at this time. The volume of traffic generated by the mining use has previously been estimated at 12 round trip truck trips per hour during maximum production, during mining operations. This application will not result in any change in the rate at which material is mined. If operations occur during the winter months it would extend the overall duration of activity but would not otherwise change the level of traffic onto Highway 20. This moderate level of traffic should not change the functional classification of the road or change standards implementing a functional classification system. The level of land use on the subject property is such that it will not result in levels of travel or access which are inconsistent with the functional classification of the facility nor will it reduce the level of service of the facility below the minimum acceptable level identified in the TSP. ODOT, the entity responsible for the roadway, was provided notice of the proposed activity, and did not comment on the application. 4. Title 22 of the County Code, Procedures Ordinance Chapter 22 of the County Code sets forth the procedures for processing applications. This application has been processed in accordance with the requirements set forth in the County Code with respect to notice, preparation of a staff report and record keeping. 5. Implementing Ordinances All comprehensive plan amendments must be adopted by the Board of County Commissioners by ordinance. Such ordinances will be prepared by the Planning Division and Legal Counsel if the Hearings Officer recommends approval of the proposed plan amendment to the Board of County Commissioners and approves the proposed plan amendment. PA -95-9 Page 9 0148-1658 CONCLUSION AND RECOMMENDATION: Based upon the findings above, it is recommended that the Hearing's Officer approve the applicant's request to amend the Comprehensive Plan by revising the ESEE for mining site no. 404. The ESEE revision will recognize the addition of 142,000 cubic yards of hard rock basalt on site and the opportunity to operate the site in accordance with guidelines developed by the Oregon Department of Fish and Wildlife. DBL:slr PA -95-9 Page 10