2000-1058-Ordinance No. 2000-036 Recorded 12/19/2000VOL: CJ2000 PAGE: 1058 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-1058 * Vol -Page Printed: 12/21/2000 15:02:03 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding.) I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Dec. 19, 2000; 2:10 p.m. Ordinance (CJ) NUMBER OF PAGES: 44 MARY SUE PENHOLLOW KEY UN ,ED DESCHUTES COUNTY CLERK MICROFILIx1ED 1]E 12��� DEC 2 7 2000 e*5 Jam"''- /ff? REVIWED L AL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23 of the rn Deschutes County Code Revising the ESEE Analysis for Surface Mining Site No. 600 and Declaring an Emergency +' ORDINANCE NO. 2000-036 c.: ---- WHEREAS, tax lot 700 in Township 19 South, Range 14 East, Willamette Meridian (the subject property) encompasses 182 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. 600 on the County's inventory of mineral and aggregate resource sites; and WHEREAS Jack Robinson & Sons has proposed a Plan Amendment to Title 23 of the Deschutes County Code, file number PA -00-9 to adopt a revised Conflict Analysis and ESEE Findings and Decision for the subject property for the purposes of incorporating revisions to winter operating conditions regarding surface mining operations in a portion of the North Paulin'a Deer Winter Range; and WHEREAS, the Deschutes County Hearings Officer, after review conducted in accordance with applicable law, has recommended approval of the proposed Plan Amendment to Title 23 as set forth in the attached Exhibit B, and WHEREAS, after notice was given and hearing conducted on December 13, 2000, in accordance with applicable law, the Board of County Commissioners has considered the Hearings Officer's recommendation and testimony at the hearing and has entered a decision in PA -00-9 approving the proposed plan amendment; and WHEREAS, the Oregon Department of Fish and Wildlife had reviewed the subject proposal and is in agreement with the proposal and with this decision; WHEREAS, in order to amend the Comprehensive Plan and to give effect to the board's approval, it is necessary to adopt the Plan Amendment by an ordinance; now, therefore THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. The Resource Element of Title 23 of the Deschutes County Code is amended to amend the Conflict Analysis and ESEE Findings and Decision for the subject property, as set forth in the attached Exhibit "A," incorporated herein by this reference, with additions underlined and deletions in StFiketheugh-. Page 1 of 2- ORDINANCE NO. 2000-036 (12/13/00) Section 2. 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 D, 2000. ATTEST: Recording Secretary BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, ORE N 6ADAL.WEARING N, air C4 �- DENNIS R. LU E, Commission r e TOM DEWOLF, Commission Page 1 of 2- ORDINANCE NO. 2000-036 (12/13/00) Conflict Analysis and ESEE Findings and Decision Site No. 600 Site Number 600, occupying tax lot 700 in Township 19 South, Range 14 E.W.M., Sections 4 and 9, came before the Deschutes County Hearings Officer for hearing on September 17, 1996. On September 24, 1996, the Deschutes County Hearings Officer made a preliminary decision (Findings, Recommendation and Decision; County File Nos. PA -96-3 and ZC-96-4) on this site. The site came before the Board of County Commissioners (Board) for hearing on December 4, 1996. By adoption of these findings and this decision, the Board confirms and ratifies that recommendation and decision. The purpose of the 1996 hearing before the Board was to determine whether the subject site 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 Surface Mining or "SM." For the reasons given below, the Board determines that this site should be so classified. In 2000, the owner applied to amend the Program to Meet the Goal set forth in this ESEE and the site plan for this site to expand permissible mining activities during the winter months on the site. Specifically, the gpplicant sought approval to allow general mining operations (extraction, hauling, stockpiling, washing and screening). In addition, the applicant applied for approval to conduct crushing and blasting operations in accordance with recommendations of the Ori Department of Fish and Wildlife. The Hearings Officer approved the revision to the ESEE Program to Meet the Goal and the revised site plan. The Hearings Officer's decision was not appealed, and on December 13, 2000, the Board held a de novo hearingon n the plan amendment. The Board approved the plan amendment, and this ESEE, with revisions to reflect the changes made following the 2000 applications, was amended and adopted by Ordinance 2000-036. PRELIMINARY FINDINGS Site number 600 comprises approximately 182 acres and is located on the Old Bend -Burns Highway roughly one-half mile of the east end of the road, just south/southwest of the site of the Horse Ridge grade on Highway 20. The site is owned by Jack Robinson & Sons, Inc. and is currently zoned EFU-HR, Exclusive Farm Use - Horse Ridge Subzone and WA, Wildlife Area. Adjacent land is zoned EFU, SM, LM and WA. The LM feature is Highway 20 which lies across a valley from Horse Ridge. Most of the surrounding land is owned by the Bureau of Land Management with the remainder in state and private ownership. 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 acknowledgment 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 historic and planned future surface mining by ODOT on tax lot #600 (also known as county site No. 405), located immediately adjacent to a portion of the northeast boundary of the subject property. Uses on Tax lot #500, which is owned by Hap Taylor & Sons and was recently re - Page 1—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 zoned from EFU to SM (County site No. 496), include future surface mining activities. Tax lot #500 is located adjacent to the northeast property boundary of Applicant's property. Adjoining the northeast property corner is a 120 -acre area which has been divided into 16 tax lots ranging in size from 2.5 acres to 10 acres. These tax lots are undeveloped and are all zoned EFU. All other surrounding lands are publicly owned (Deschutes County or BLM) and are zoned EFU. The subject property and surrounding lands lie within a deer winter range that is designated on the County's comprehensive plan maps. A surface mine known as the "Moon Pit" is located approximately two miles to the east of the subject property, on the north side of Highway 20. The Moon pit is adjacent to an abandoned BLM owned mining site. The County is considering siting a new solid waste landfill in this area. No specific property has been identified as a landfill site. Geotechnical evidence suggests that the subject property contains approximately 1.2 million cubic yards of topsoil, 3.6 million cubic yards of sand and gravel select fill material, and 4.1 million cubic yards of crushable basalt and other rock aggregate resource. 10122M MCOF41-139VS) 9VI D19F41 Criteria applicable to this decision are Statewide Planning Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes County Year 2000 Comprehensive Plan regarding surface mining goals and policies. ESEE FINDINGS AND CONCLUSIONS Site No. 600 1. Inventory. The County's Goal 5 mineral and aggregate inventory establishes that the site has 7,700,000 cubic yards of sand, gravel, and crushable basalt which appear capable of meeting the Oregon Department of Transportation (ODOT) standards for select fill and which are needed for use as fill material for building construction sites throughout the Bend area. 2. Site Characteristics. The site topography ranges from moderately sloping on the flanks of Horse Ridge on the southern portion of the property, to relatively level between the ridge and the old Bend -Burns Highway. Elevations range from approximately 4,000 feet at the southwest property boundary to less than 3,700 feet on the portion of the property north of the old Bend -Burns Highway. The site is naturally vegetated with juniper and sagebrush. The old Bend -Burns Highway traverses the northern edge of the property, in one place forming the property boundary, and in others isolating two small areas on its north side. There are no utilities or improvements on the site. The road to the property (the Old Bend -Burns Highway) is paved. Land uses in the surrounding area currently consist of undeveloped range land with no dwellings or other uses within one-half mile. There are two surface mines adjacent to the subject property, one has been mined in the past and one is undeveloped. Page 2—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 3. Conflicts Analysis. a. Conflicts Resource Conflicts. 1. Wildlife. The Department of Fish & Wildlife has identified this site for deer winter range. The resource element of the County's comprehensive plan shows the site to fall within a designated deer winter range. The Board finds that winter wildlife habitat for deer is a significant Goal 5 resource, in conflict in certain instances with zoning for surface mining. Full protection for the deer winter habitat resource would 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 and 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 in 1995, 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 Mining Operating Guidelines in Zoned Big Game Winter Ranges" (referred to hereinafter as the "1995 Studv" ). In the 1995 Study, 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; (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 Page 3--ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 portion of the North Paulina range only when winter weather conditions become severe. These factors enabled ODFW to recommend to the County in the 1995 Study that conflicts between surface mining and deer winter ranges 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. Based upon the 1995 Study and ODFW's conclusions drawn from four years of monitoring the area around and including the site, the applicant requests that the winter operating_ prohibition be lifted with respect to all mining operations, except drilling, blasting or crushing. As set forth in a letter dated March 14, 2000, ODFW determined that from December through April, general mining operations at the site, including extraction, hauling, stockpiling and washingand .screening of rock would have minimal adverse effects on the wintering deer population and could be allowed during the winter months, and drilling, blasting, and crushing could occur within certain limitations as set out in the March 14 2000 letter, without adversely impacting wintering The Board adopts as its findings the findings of ODFW sett referenced above. Further discussion of the specific program for balancing the conflicting uses will be set forth in the section of this ESEE document entitled "Program to Meet the Goal." 2. Scenic Vistas. The comprehensive plan designates Highway 20 as a landscape management feature from which to maintain and enhance scenic vistas and natural landscapes. The Board finds that the scenic vista presented along the stretch of Highway 20 near the subject property is a significant Goal 5 resource in conflict with zoning for surface mining. Full protection for the natural landscape would preclude zoning for surface mining as surface mining results in the destruction of natural topography and the presence of heavy machinery and blasting. The entire property, however, is not visible from Highway 20. Therefore, in order to meet the intent of the comprehensive plan, only a portion of the property at higher elevations would need to be excluded from surface mining operations. Based on ODFW recommendations noting areas of prime wildlife habitat on the subject property and County staff observations on site, the Board finds that exclusion of the southwest corner of the property above the 3,800 foot elevation from mining activities would further mitigate wildlife conflicts and eliminate open space/scenic conflicts. Further discussion of the specific program for balancing the conflicting uses will be set forth in the section of this ESEE document entitled "Program to Meet the Goal." Page 4—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 Land Use Conflicts. Land uses on the EFU-HR (Exclusive Farm Use - Horse Ridge Subzone) and SM (Surface Mining) zones surrounding the site are set forth in Title 18 of the County Code. The Board finds that given the impacts associated with surface mining, all allowed uses in the EFU zone are conflicting in that full protection of those uses would preclude zoning for surface mining because those uses cannot occupy the same space as surface mining activities on the site. In addition, farm uses on adjacent property involving livestock operations can be a conflicting use. In particular, grazing allotment(s) on adjacent BLM land may conflict with the surface mine as the only existing restriction on livestock movement is a fence crossing the subject property. This conflict can be eliminated by moving the fence to align with the property boundary. The fence should meet the criteria for fences in the Wildlife Area zone in order to minimize wildlife conflicts. The Board finds that no conflicting allowed or conditional uses currently exist at the site or within the impact area apart from the grazing allotment mentioned above. Further, the Board finds that such uses, with the exception of livestock grazing, are unlikely to occur due to the remote location of the site and the fact that most of the surrounding land is in public ownership. The Board also finds that the large minimum lot size of 320 acres and the large size of existing adjacent lots will prevent dense residential development near the site. Some residential development could occur near the property on the smaller EFU lots in the southwest corner of Section 3. However, given the County's recent denial of nonfarm dwelling conditional use permits in remote areas in the east County, residential development is not likely. Resource Conflicts Protection of Mineral and Aggregate Resource 4. Economic Consequences. The Board finds that the economic consequence of protecting the mineral and aggregate resource, in conflict with other natural resources, is difficult to measure. Deer winter habitat does not have any economic value attached to it. Deer generate indirect economic benefits to the County when hunters travel to the County to hunt deer. Additionally, a few tourists or local residents might travel to the subject property to view wildlife. Similarly, scenic vistas do not have any direct economic values attached to them. As with wildlife, indirect benefits are generated by outdoor recreationists or tourists traveling to or through the county. 5. Social Consequences. The Board finds the social consequences of protecting 1he mineral and aggregate resource over the other natural resources would be negative. Surface mining would have negative impacts on wildlife. Given that very few people live in the area, the social consequences would be felt primarily by those traveling Highway 20 who might be deprived of wildlife viewing opportunities or subjected to the sight of scarring from surface mining activities. Page 5—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 6. Environmental Consequences. Allowing surface mining activities will have adverse environmental consequences on deer habitat. Surface mining activities would reduce the available cover and forage at the site, which in turn causes 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 and harassment of the area's wildlife. Over the long term, the environmental consequences will be mitigated as the site is reclaimed after mining. 7. Energy Consequences. The Board finds that the energy consequences of protecting the mineral and aggregate resource, over the other natural resources, will be to increase the energy consumption due to fuel expenditures needed to run the heavy equipment and processing equipment on the site and to transport select fill to the site of its end use. Such energy use would occur either in or out of the County because mineral and aggregate resources are needed for use in the County. Failure to protect the mineral and aggregate resources at this site would mean that such energy use would occur elsewhere. This site is conveniently located near the rapidly growing east side of Bend, where most fill material will be needed. Travel from this location to the east side of Bend may occur without passing through the center of Bend, as is presently done by trucks from 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 area. Protection of Conflicting Goal 5 Resources 8. Economic Consequences. Protection of the natural resources would preclude mining at the site. Deer winter habitat is a finite resource and the proposed surface mine would cause displacement of wildlife and increased competition in remaining unaffected areas. The Board has previously found, as reflected in the goals and policies statement of the County Comprehensive plan, the County consumes 2 million cubic yards of mineral and aggregate materials each year. Under the laws of supply and demand, failure to protect sufficient amounts of mineral and aggregate or 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 minerals and aggregate would need to be hauled from outside the area, the cost of mineral and aggregate would increase with haulage costs, which the County has previously found to be 22 cents per cubic yard per mile. The Board has found there to be a total of 70,170,000 cubic yards of sand, gravel and rock in the County's current inventory of sand, gravel and rock. This amount represents approximately a 35 year supply based on the use rate determined by the County of 2 million cubic yards per year. The resource on this site would add approximately 4.1 million cubic yards to this inventory and would increase the lifetime of the inventory to 37 years. Both of these estimates significantly exceed the required 20 year planning period. Page 6—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 The Board has found that virtually all SM sites have either resource or land use conflicts with surface mining. Consequently, if more than 43% of the aggregate sites were to be eliminated due to resource or other conflicts, the County would not have preserved sufficient aggregate to meet its needs over the 20 year planning period. This particular site, standing alone, is not essential to meeting the County's mineral and aggregate needs; however if enough sites are eliminated due to conflicts, it could be. Further, the Board has recognized the importance of preserving mineral and aggregate resources for highway maintenance and construction and finds that 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 fill material found at the site would be available for use on highway projects. Mineral and aggregate resources are a commodity with a market value. Failure to allow mining of such resources would prevent the value of such resources from being realized by the local economy. Although the number of jobs represented by the local aggregate industry is small in number, mining jobs tend to pay at higher rates than those found in the service sector. In addition, the select fill from this site will be used in construction work in the Bend area. The construction trades pay higher wage rates than those paid in the service sector and are an important part of the local economy. The economic impact of failing to preserve sufficient mineral and aggregate reserves is not readily mitigated. Mineral and aggregate resources are location dependent and finite. 9. Social Consequences. Preserving the natural resources at the site could have negative effects on the general welfare of the County if insufficient amounts of mineral and aggregate are preserved. Regardless of the amount of supply readily available, there will always be a demand for mineral and aggregate resources. The County's roads will continue to need improvement and maintenance. Select fill would still be needed by the local building industry. Deteriorating County roads and streets would negatively impact the livability and quality of life in Deschutes County. A lack of needed fill would force changes in methods of construction and might prevent construction of some projects. There are also social consequences of increased building costs that can result from a shortage of readily available mineral and aggregate resources. 10. Environmental Consequences. Protection of the conflicting natural resources would preclude mining at the site. The noise, traffic, human presence and disruption of topography associated with surface mining are inimical to the protection of scenic views and deer and antelope habitat. Therefore, protection of the natural resources by precluding mining would have positive environmental consequences. As with the mineral and aggregate resource, wildlife resources and scenic areas are limited by locational factors. Wildlife habitat and scenic vistas are continually declining in the face of increasing development. 11. 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 involve increased haulage distances. The protection of natural resource values at the site would have negative energy consequences. Page 7—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 12. Relative Values of the Conflicting Resources. The conflicting natural resources and the mineral and aggregate resource are important relative to one another. Both resources are finite and locationally dependent. Mineral and aggregate resources are in limited supply in the County and there is a need for the mineral and aggregate resources along the Highway 20 corridor for highway maintenance and construction and fill for construction sites. Deer habitat is continually being lost to new development. Therefore, both the mineral and aggregate resource and the conflicting natural resources should be protected. Accordingly, under OAR 660-16-010(3), protection of the mineral and aggregate resource shall be limited by protection of the natural resources. Conflicting Uses Protection of Aggregate and Mineral Resource 13. Economic Consequences. The economic consequences of protecting the mineral and aggregate resource relates to the impacts of surface mining on adjacent uses, the value of mineral and aggregate as a commercial commodity and the impacts of protecting employment in the mining industry and the development opportunities foregone by development of the site. 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 indicate that there was 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. In general, the most significant impact to surrounding property owners would be if regulations to protect the mineral and aggregate resource were enacted that would make surrounding properties unbuildable. Allowing surface mining activities at this site will have negative impacts on the availability of this property for other uses. However, nothing indicates that such other uses are likely to occur given the remoteness of the site. Nothing indicates that such other uses would have a higher economic value than using this site for surface mining. There is no shortage of land in the County available for developing the uses allowed in the EFU zone, while the supply of mineral and aggregate resources in the County is limited by geology. Furthermore, surface mining is a transitional use, and after reclamation, the land surface would then become available for other uses. 14. 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 impacts of noise, fugitive dust emissions, and increased truck traffic would negatively impact the livability and scenic quality of the surrounding area. Such uses may be mitigated, however, through environmental controls on the mining operation. Such controls are imposed, by County ordinance, through site plan review of mining operations. Page 8—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 The Board finds that the negative social consequences of mining activity are minimal in this case due to the fact that there are few existing land use conflicts. Additionally, it is likely that few such conflicting uses will arise in the future, due to the zoning and public ownership of surrounding lands. 15. Energy Consequences. The Board finds that preserving this site for the production of minerals 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 or construction projects in the area would be lessened. To the extent that surface mining would preclude or discourage development of the surrounding rural lands, the energy consequences would likewise be positive. 16. Environmental Consequences. The Board finds that protecting the site for mining would have negative environmental consequences from noise, dust emissions, habitat and landform destruction. The Board further finds that such impacts can be mitigated. Protection of Conflicting Land Uses 17. Economic Consequences. With the exception of geothermal development andfarm and forest uses, all uses in the surrounding zoning designations are classified as noise sensitive uses for purposes of DEQ noise regulations. Farm 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 further 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' site No. 308 in 17-12-18 of 10 million cubic yards) would not significantly impact the total supply of mineral and aggregate in Deschutes County, if every site with conflicting uses were eliminated for that reason, Deschutes County would be unable to meet its mineral and aggregate needs for therequired 20 year planning period. Almost every mineral and 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 sites with conflicts could be eliminated and prevent the County from meeting its mineral and aggregate needs. 18. Social Consequences. The Board 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. 19. 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 in that the noise, 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 Page 9—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 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. 20. 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. 21. Relative Values of Aggrreaate Use and Conflicting Uses. Based upon the analysis of the ESEE consequences of protecting the identified conflicting uses and protecting; the mineral and aggregate resource and the relative weight of the conflicting uses and the mineral resource, the Board finds that with respect to existing development both the mineral 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. 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 County finds that, pursuant to OAR 660-16-010, it will limit the use of the mineral 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 22. The Board finds that, in order to protect both the aggregate resource and the conflicting resources and uses approximately 182 acres of 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 (part of the screening requirements shall include excluding the southwest corner of the property above the 3,800 foot elevation); C. Hours of operation shall be consistent with DEQ standards and applicable county ordinances; d. The site shall ne4 be operated from December 1 through April 30, emeept only in conformance with the provisions set out below. 1. , must s do -As between From December 1 through April 30 tmiess the epefe4e Page 10—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 extraction, hauling, stockpiling, washingrock, ock, and screening of rock shall be allowed subject to Section 18.52.110 I Hours of Operation, of the Deschutes County Code. 2. From December 1 through January 31, blasting (for purposes of these conditions, the term "blasting" shall be viewed as including drilling activities) and crushing shall be allowed during M period of fourteen (14) consecutive days if the standard set forth in this subsection can be met. Applicant shall cause the ODFW-prescribed transects to be surveyed for the presence of deer at least once during the seven (7) days prior to the period for which crushing and/or blasting is desired. If any survey conducted during that time period shows the presence of thirty-five 35) deer or more, blasting and/or crushing shall not be allowed. If the applicant desires to crush and/or blast for up to an additional 14 -day time period, a new finding must be made in accordance with this subsection. 3. From February 1 through April 30, blasting and crushing shall be allowed during M period of fourteen (14) consecutive days if the crusher is located adjacent to the Old Highway 20 access and one of the following survey methods is used and the applicable criteria met. If applicant desires to conduct blasting and/or crushing operations beyond this 14 -dam period, new findings shall be made in accordance with this subsection 3. a. Applicant shall cause the ODFW-prescribed transects to be surveyed at least twice for the presence of deer during the seven (7) dgys Qior to the period for which crushing and/or blasting is desired. If the average_of any_ two deer surveys conducted during that time period shows the presence of 35 deer or more, blasting and/or crushing shall not be allowed. b. Applicant shall cause the ODFW-prescribed transects to be surveyed at least once and shall conduct one snow survey according to the requirements listed below during the seven (7) days prior to the period for which crushing and/or blasting is desired. If the deer count for any one survey conducted during that time period shows the presence of 35 or more or the snow is of a depth of more than the snow threshold listed below, blasting and/or crushing shall not be allowed. 4. Snow Survey Protocol: Snow measurements shall be measured against the closest first of month or mid -month threshold at the time of measurements. The first of month and mid -month standards are as follows: Page 11—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 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 Snow depths shall be measured in 20 dee . If not sueh showing is made, the eper-etter- must shut do -A% suf-faee mining from (2) Operator- shall measure snow depths in the immediate vicinity of the Hungry Flat Snow Course (off Century Drive) maintained by the SGS en the first and fifteenth day of every month for- the time period November- -14 NRCS on the da,s as prescribed above. Measurements shall be submitted to the County and ODFW by 4:00 p.m. on the day the measurements are taken. 5. Deer Survev Protocol: Deer counts as prescribed above shall be taken at seven one -mile transects as have been or may be established in consultation with ODFW within a two four -mile radius of the surface mining site. The threshold would be reached by sighting 20 35 deer at any combination of the few seven 7) transects. Counts shall be taken at the transects from a vehicle within one and a one-half hours of sunrise. Counts shall be taken and verified as accurate by a wildlife biologist acceptable to the Oregon DepaFtment of Fish and Wildlife ODFW. Animal presence data shall be provided to ODFW and the County by 12:00 AM .mm. on the date day the data is gathered. Page 12—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 6. For crushing or blasting operations to begin between December and April, applicant must coordinate with ODFW by providing all information showing the applicable criteria have been met. Whenever crushing or blasting operations are takingplace, snow depth data and/or animal presence data shall be collected for - the entire period Nevembef 15 t1wough April 15 if operator- N"es )e- able -te on a bi-monthly basis. ODFW shall review and assess the information for reliability and determine whether all applicable criteria have been met to allow blasting and/or crushing. All information submitted to ODFW, together with ODFW's determination as to whether all applicable criteria have been met shall be submitted to the County prior to beginning any blasting and/or crushing operations between December and April. 7. Notwithstanding the measurement times set forth in (d)(2) and(d)(3), above, ODFW may, in response to sudden weather changes or major deer movements, take or require measurements at times other than those specified herein. If ODFW determines -that the snow depth or animal presence criteria set forth in subsee (-1) above 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 of the notification by the County. 8. 6. The conditions set forth in this subsection (d) d shall be made a condition of site plan. approval for the any site plan of Site 600 or revised site plan !pproved for Site 600. The deer presence numerical criterion condition as set forth in pamgr-aph (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 operate r applicant shall be processed as a land use aatiea annlication. e. Reclamation shall meet ODFW recommendations, DOGAMI requirements and applicable county ordinances. The Board finds that extraction . 9 -oft site X11, hauling, stockpiling, tockpiling, washing rock, and screening of rock shall be allowed subject to Section 18.52.110(I), Hours of Operation, of the Deschutes County Code from January 1 through December 31 on the site. From May 1 through November 30 eaeh yeEw, blasting, drilling and crushing will be allowed subject to Section 18.52.110(I), Hours of Operation, Page 13—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 of the Deschutes CountyCode in order to allow extraction of the significant aggregate resources on the site. Between the months of December 1 and April 30, eei#imafien h preeessieg; blasting, and drilling and crushing shall be subject to the winter operating guidelines set forth above. Conflicting Resources 23. The Board 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. eos . %esed tmder- the pr-egmm to meet the goal %ill offer- pr-etee4iea of deer- and an4elepe hetes. The Board 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 blasting and crushing operations at the site when certain snow conditions and/or 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 snowfall 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 600, located in the northwestern portion of the North Paulina Deer Winter Rangeperate blasting and crushing 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. Extraction, hauling, stockpiling, tockpiling, washing rock, and screening of rock has minimal effects on mule deer and can be allowed in the winter months. Blasting and crushing can have impacts on wintering deer, and shutdown of blasting and crushing will be required when the ODFW criteria have been exceeded. The Board further finds that the wildlife mitigation conditions imposed under the program to meet the goal will offer protection of deer and antelope herds. The Board finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. ge-wildli#e mitigation measures will not be unduly r-estfiefive, sinee it eeeur-s at time ef the year - e not underway. Mineral Resources 24. The Board will protect the mineral and aggregate resource by zoning the site SM to allow for surface mining activities. The Board finds that Deschutes County Zoning allows mining activities such as extraction, processing, crushing, batching, and other mining - Page 14—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 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 allowed uses in the zone. In this manner the surface area of the mineral and aggregate resource is protected against establishment of uses that would prevent mining of the mineral and aggregate in the future. Such protection advances the goal of protection of sufficient mineral and aggregate resources to meet the County's mineral and aggregate needs. 25. The Board find 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 mineral and aggregate resource and the County so zones the one-half mile area surrounding the SM zone. The Board 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 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 Board 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 mineral and aggregate resource from conflicting future: development. 26. The Board finds that, in combination with the action taken on other mineral and 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 have been met. Land Use 27. Existing conflicting land use's 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. Page 15—ESEE Findings and Decision—Site No. 600 EXHIBIT A Ordinance No. 2000-036 EXHIBIT B The Southwest Quarter of the Southeast Quarter (SW 1/4 SE 1/4) of Section Four (4), Township Nineteen (19) South, Range Fourteen (14) East of the Willamette Meridian, Deschutes County, Oregon, Lying South of the Highway; and The Southeast Quarter of the Southwest Quarter (SE 1/4 SE 1/4) of Section Four (4), Township Nineteen (19) South, Range Fourteen (14) East of the Willamette Meridian, Deschutes County, Oregon, EXCEPTING THEREFROM that portion owned by the State Highway Commission; and The North Half of the North Half (N 1/2 N 1/2) of Section Nine (9), Township Nineteen (19) South, Range Fourteen (14) East of the Willamette Meridian, Deschutes County, Oregon. EXCEPTING THEREFROM that portion of the Northwest Quarter of the Northwest Quarter (NW 1/4 NW 1/4) of Section Nine (9), Township Nineteen (19) South, Range Fourteen (14) East of the Willamette Meridian, Deschutes County, Oregon, lying above an elevation of Three -Thousand Eight -Hundred (3,800) feet above mean sea level, as illustrated on Exhibit 9 C. Page 16 EXHIBIT B Is DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA -00-9 and SP -00-33 APPLICANT/ Jack Robinson & Sons OWNER: 63055 O.B. Riley Road Bend, Oregon 97701 APPLICANT'S Nancy Craven ATTORNEY: Laura Craska Cooper Ball Janik LLP 15 SW Colorado, Suite 260 Bend, Oregon 97702 REQUEST: A plan amendment to amend the Environmental, Social, Economic and Energy (ESEE) analysis for Surface Mining Site No. 600 for changes to the operation of the mining site in the winter months, from December 1" to April 301" of each winter season. The applicant is also requesting approval to amend the site plan for surface mining operations on this site to reflect the proposed changes to the ESEE analysis. STAFF REVIEWER: Catharine Tilton, Associate Planner HEARING DATE: Tuesday, September 19, 2000 RECORD CLOSED: Tuesday, September 19, 2000 1. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, Deschutes County Zoning Ordinance A. B. Chapter 18.52, Surface Mining zone. *Section 18.52.040 Uses permitted outright subject to site plan review *Section 18.52.050 Conditional uses permitted *Section 18.42.070 Site plan review *Section 18.52.090 Minimum use setbacks *Section 18.52.110 General operation standards Chapter 18.88, Wildlife Area combining zone *Section 18.88.030 Uses permitted outright *Section 18.88.040 Uses permitted Conditionally `=- ._ ti.u�l►"1 � :e. ,J Deschutes County Year 2000 Comprehensive Plan, ESEE analysis for site no. 496 Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit 3— Page 1 Page ._I___ of 2 Ordinance .fie 0 • 03 fo Oregon Administrative Rules (OAR) Chapter 660, Division 23, Procedures and Requirements for Complying with Goal 5: 'OAR 660-023-0180, Mineral and aggregate resources If. BASIC FINDINGS OF FACT: A. LOCATION: The subject property has an assigned address of 25425 Horse Ridge Frontage Road, Bend, approximately one-half mile from the east end of the Old Bend - Burns Highway, and is identified as Tax Lot 700 on Deschutes County Assessor's map 19-14-00. The property is also identified as Surface Mining Site 600 on the County's Comprehensive Plan inventory of significant mineral and aggregate resource sites. B. ZONING: The majority of the subject property is zoned Surface Mining (SM) and a portion of the southwest comer is zoned Exclusive Farm Use – Horse Ridge Subzone (EFUHR). The property is also within a Wildlife Area (WA) combining zone. Surrounding the property is a Surface Mining Impact Area (SMIA) Combining Zone extending one-half mile from the surface mining site. C. LOT OF RECORD: The County has recognized the subject property as a legal lot of record through the issuance of County permits and a deed dated November 20, 1930 and recorded in volume 49, page 319 of the Deschutes County Book of Records. D. SITE DESCRIPTION: Surface Mine Site 600 represents is comprised of 182 acres out of an approximate total of 205 acres located within tax lot 19-14-00-700. Horse Ridge Frontage Road/Old Bend -Burns Highway bisects the surface mining site with majority of the surface mine located south of the road and about ten acres located north of the Highway. The ESEE for Surface Mining Site 600 states that the County's Goal 5 mineral and aggregate inventory establishes that the site has approximately 7,700,000 cubic yards of sand, gravel, and crushable basalt which appear capable of meeting the Oregon Department of Transportation (ODOT) standards for select fill and are needed for use as fill material for building construction sites throughout the Bend area. Topography of the approximate 182 -acre mining site varies. Near the northern portion of the site, the property is relatively level and covered with Juniper, sagebrush, and other native brush. Topography of the southern portion of the site rises to form the.flank of Horse Ridge. Current use of the mining site is limited to Phase 1 of the approved site plan for SP -97-53 and CU -97-81 and includes extraction, stockpiling, and hauling the material. E. SURROUNDING LAND USES: Surrounding land uses to the west and south include land owned by the federal government and managed by the Bureau of Land Management (BLM). To the north are Surface Mining Site 405 (an inactive ODOT site) and Surface Mining Site 496. Located to the east is County -owned land and BLM land. Zoning in the area, with the exception of the surface mines zoned SM, is Exclusive Farm Use—Horse Ridge East (EFUHR) Subzone. Uses in the area include surface mine activities interspersed with open space and rangeland. Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit 12 Page 2 Page 2�__ of Ordinance 7- - 03 t� F. BACKGROUND: The subject surface mine has received several approvals that allow the applicant to conduct surface mining activities at the site. Approvals include: PA -96-3 and ZC-96-4, approved by the Board of Commissioners (Board) via the adoption of three ordinances (Ordinances 96-076, 96-077, and 96-078) in 1996, resulted in changing the zone designation of the property from EFUHR to SM.' Ordinance 96- 077 adopted, in part, the ESEE for site 600. Under the section heading, "ESEE Findings and Conclusions, Site 600" subsection 3, "Conflicts Analysis" states that the "Department of Fish and Wildlife has identified this site for deer winter range. The resource element of the County's comprehensive plan shows the site to fall within a designated deer winter range." This subsection 3 further identified that the winter wildlife habitat for deer is a significant Goal 5 resource in conflict with zoning for surface mining. Under subsection 12 of the ESEE, "Relative Values of the (''onflicting Resources," the county found that the conflicting natural resource and the mineral and aggregate resource are important relative to one another and, therefore, "both the mineral and aggregate resource and conflicting natural resources should be protected." As a result, the "Program to Meet the Goal" contained in the ESEE for Site 600, ESEE condition (d) states: (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 between 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 ' Ordinance 96-076 is an "Ordinance Amending PL -20, Deschutes County Year 2000 Comprehensive Plan, Revising the Mineral and Aggregate Resource Inventory for Deschutes County and Declaring an Emergency." Ordinance 96-077 is an "Ordinance Amending PL -20. Deschutes County Year 2000 Comprehensive Plan Map, Changing the Surface Mining Plan Designation on Certain Property in Descnutes County to Surface Mining, and Declaring an Emergency." Ordinance 96-078 is an "Ordinance Amending Title 18, the Deschutes County Zoning Map, Changing the Zone Designation from EFU to SM on Certain Property in Deschutes County, and Declaring an Emergency." Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 3 Page of Ordinance 7.`619 - D 3 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 subparagraphs (d)(3) and (d)(4) do not exceed 20 deer. If no such showing is made, the operator must shut down surface mining operations with the necessity of receiving notice of shut down from the County. Such shutdown shall occur within 48 hours of observance of conditions requiring shutdown. (2) Operator shall measure snow depths in the immediate vicinity of the Hungry Flat Snow Course (off Century Drive) maintained by the SCS on the first and fifteenth 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 threshold 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 date 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 600. The deer presence numerical criterion conditions as set forth in paragraph (d)(1) above may be adjusted to account for Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 4 Page .4-- Of Ordinance UP-A--- changing conditions without requiring an amendment to the ESEE. Such adjustments shall be considered to be a modification of the site plain 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. The Board finds that extraction (including drilling and blasting) and processing on site will be allowed May 1 through November 30 each year in order to allow extraction of the significant aggregate resources on the 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. TU -97-23: In July 1997, the Planning Division issued a Temporary Use Permit that allowed the applicant to extract up to 12,000 cubic yards of material prior to final approval of SP -97-53 and CU -97-81. CU -97-81 and SP -97-53: Subsequently in August 1997, the Planning Division issued an administrative decision approving a Conditional Use Permit, CU -97-81, and site plan, SP -97-53, that allows surface mining activities, including extraction and processing (including crushing) to occur at the site. Condition 2 of the approval required the applicant to "follow and meet all requirements of the site-specific ESEE analysis." SP -98-46: In October 1998, the Planning Division issued an administrative decision approving a Site Plan, SP -98-46, that established an explosives storage facility at the surface mining site. Condition 2 required the applicant to record a Conditions of Approval Agreement. Condition 2 of the Conditions of Approval Agreement requires the applicant to meet the requirements of the site-specific ESEE analysis for operation of the facility. Specifically: 2. The applicant shall follow and meet all requirements of the site- specific ESEE analysis for operation of the storage facility. Specially, if the mining operation is required to shut down due to the winter conditions and deer counts, activity at the storage facility shall also cease. G. PROPOSAL: The applicant is requesting approval to amend the comprehensive plan ESEE findings and the surface mining site plan for Site 600 by modifying ODFVV's winter operating guidelines contained in the ESEE to permit "all mining activities allowed by DCC Chapter 18.52 during the winter months except crushing and blasting," (among the permitted activities would be the loading, unloading, and transportation of stockpiled material). Crushing and blasting would be allowed when (1) two deer counts :chow that Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit 3— Page Page 5 Page r _ of 2,.1�_ Ordinanca ?� - © o the deer population is not present in the vicinity just prior to the scheduled crushing and blasting operations or (2) one deer count shows that the deer population is not present in the vicinity just prior to the scheduled crushing and blasting operation and one snow survey shows snow levels below a prescribed limit. The deer counts and snow surveys would be conducted in accordance with the recommendations of ODFW. H. PUBLIC AGENCY COMMENTS: The Planning Division sent notice of the proposal to several public agencies and received the following response from the Oregon Department of Fish and Wildlife: Oregon Deipartment of Fish and Wildlife: We have reviewed the applicants "Statement In Support of Application." We concur with the applicants proposed changes and conclusions. The following agencies did not submit comments: Deschutes County Assessors Office, County Road Department, County Sheriffs Office, Watermaster, Property Address Coordinator, Cascade Natural Gas Company, Pacific Power and Light, U.S. West Communications, Department of Environmental Quality, Department of Geology and Mineral Industries, Oregon Department of Land Conservation and Development, Oregon Department of Transportation and the Bureau of Land Management. PUBLIC NOTICE AND COMMENTS: The Planning Division mailed notice of this application to all property owners within 250 feet of the subject property and a Land Use Action Sign was posted on the property on July 27, 2000. The Planning Division received no public comments. Notice of the public hearing was also published in the "Bend Bulletin" newspaper on July 30, 2000. No members of the public testified at the public hearing, and no comments were received from members of the public: as of the date the record closed. J. REVIEW PERIOD: Deschutes County Code (DCC) 22.20.040(D), lists several types of applications that are exempt from the 150 -day time limit, including quasi-judicial comprehensive plan amendments, such as the subject application. Further, in a previous decision issued by the Hearings Officer for a similar application to amend the ESEE and winter operating guidelines for Surface Mining Site 404 located approximately one mile east of the subject property, (file numbers PA -99-8, SP -99-52, and MA -99-7), the Hearings Officer found that the 150 -day period does not apply to the site plan application because the site plan application cannot be approved without approval of the requested plan amendment.2 Although the 150 -day time period does not apply to the subject applications, Goal 5 of the Administrative Rules, OAR 660-023-0180(4), requires 2 Specifically, the Hearings Officer found with regards to the applicability of the 150 -day time period in PA - 99 -8, SP -99-52, and MA -99-7: Under ORS 215.428(6), the 150 -day period for issuance of a final local land use decision does not apply to applications to amend an acknowledged comprehensive plan. Because the site plan application cannot be approved without approval of the requested plan amendment. the Hearings Officer finds the 150 -day period under ORS 215.428 also does not apply to the site plan application. Exhibi�A�;f Hearings Officer Decision PA -00-9 and SP -00-33 Page Page 6 Qrdinance.1- 610 the County to complete the local land use process for a post -acknowledgment plan amendment concerning a significant mineral and aggregate resource site within 180 days of the date the plan amendment application was deemed complete. Therefore, the 180 -day period applies and began on July 23, 2000, and expires on January 20, 2001. III. CONCLUSIONS OF LAW: TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. A. Chanter 18.52, Surface Mining Zone The following uses are permitted outright subject to site plan review as provided In this section: A. Extraction of minerals. B. Stockpiling and storage of minerals. C. Screening, washing and sizing of minerals. D. Sale of minerals and mineral products extracted and produced on the parcel or contiguous parcels In the same ownership. E. Buildings, structures apparatus, equipment and appurtenances necessary for the above uses to be carried on. b. Section 18.52.050. Conditional uses permitted. B. The following uses are permitted subject to site plan review and the setbacks, standards and conditions set forth in section 18.52.090, 18.52.110 and 18.52.140, respectively, and are not subject to the conditions In chapter 18.128: 1. Expansion or replacement of a preexisting legal dwelling. 2. Crushing of mineral and aggregate materials on sites designated for crushing in the ESEE analysis In the surface mining element of the Comprehensive Plan. 3. Sale of minerals and mineral products extracted or produced on parcels other than the subject parcel or contiguous parcels in the same ownership. 4. Batching and blending of mineral and aggregate into asphaltic concrete or Portland Cement Concrete. FINDING: The subject site is zoned SM and has operated as a surface mine since 1998 when the County issued a Surface Mining Use Permit for the site. Current activities at the mining site are limited to Phase 1 and include extraction, stockpiling, and hauling the material out. The proposed amendments to the ESEE findings and site plan for Site 600 do not propose any change in the types of uses allowed on the site. Instead, the applicant is proposing a change in the timing that these activities can occur. Specifically, the applicant proposes to modify the ESEE findings and site plan to allow general mining operations throughout the winter months and drilling, blasting and Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 7 Page of 2.-(e— Ordinance ( -- Ordinance ? �0 crushing during the winter months consistent with the recommendations of 0DFW, which involve deer counts and snow levels, discussed in detail in the findings below. C. Section 18.52.070. Site clan review. Site plan review and final approval of a site plan shall be required before commencement of any use which requires site plan review under section 18.52.040 and 18.52.050(B), and before any expansion of a preexisting or nonconforming site under section 18.52.160. FINDING: The applicant received site plan approval for mining operations at Surface Mining Site 600 under SP -97-53, which addresses the winter mining operations at the site. The applicant is proposing to amend the site plan to reflect, and be consistent with, the proposed amendments to the ESEE findings related to winter operations at the surface mine. X 1=11 FW11r=7 7.7M A. Except as otherwise provided in this section, all surface mining activities and uses, Including structures, shall be located and conducted at least 250 feet from a noise -sensitive or dust -sensitive use or structure .. . B. Storage and processing of mineral and aggregate material, and storage of operational equipment which creates noise and dust, shall not be allowed closer than one-quarter mile from any noise or dust sensitive use or structure existing on the effective date of Ordinance No. 90-014... FINDING: According to the ESEE for site 600 and the Findings and Decision for SP - 97 -53 and CU -97-81, no dwellings exist within one-half mile of the surface mine. In addition, any applications for noise and dust sensitive uses within one-half mile of the surface mine applied after the effective date of the three ordinances that changed the zoning of the subject property to Surface Mining in 1996, would be subject to review under the Surface Mining Impact Area zone. Thus affording protection to surface mining operations at the site. The applicant, therefore, meets this criterion. d. Section 18.52.110. General operation standards. FINDING: This section establishes the operating standards for surface mining activity on site 600, including access, screening, air quality, erosion control, streams and drainage, equipment removal, flood plain, noise, hours of operations, drilling and blasting, extraction site size, fish and wildlife protection, surface water management, storage of equipment, security plan, and the site's ESEE analysis. The operational standards for site 600 were reviewed and approved under permits SP -97-53 and CU -97- 81. The effect of the applicant's proposal to amend the winter operating guidelines is Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit _------ Page 8 Page of Ordinance �' limited to the fish and wildlife protection standard listed in subsection L of the General operation standards, which states, in part, the following: L. Fish and Wildlife Protection. 1. Fish and wildlife values and habitat required by the site-specific ESEE analysis to be conserved and protected are conserved and protected by use of methods including, but not limited to: Seasonal operations and access road closures; retention of or creation of vegetative cover and riparian habitat, and erection of fencing or other barriers to protect wildlife from steep extraction site slopes. Surface Mining Site 600 is located in the North Paulina deer winter range. The ESEE findings for Site 600 include restrictions on mining activities during the winter months. Specifically, Condition (d) under the "Program to Meet the Goal," of the ESEE states: (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 OCC Chapter 18.52, must shut down between 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 A Deer counts, as carried out in accordance with subparagraphs (d)(3) and (d)(4) do not exceed 20 deer. Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 9 Page _ of 2-65 Ordinance—Q If no such showing is made. the operator must shut down surface mining operations with the necessity of receiving notice of shut down from the County. Such shutdown shall occur within 48 hours of observance of conditions requiring shutdown. (2) Operator shall measure snow depths in the immediate vicinity of the Hungry Flat Snow Course (off Century Drive) maintained by the SCS on the first and fifteenth 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 threshold 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 veered 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 date 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 600. The deer presence numerical criterion conditions as set forth in paragraph (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 plain under OCC 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. Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 10 Page _ of 2 Ordinance The applicant proposes to amend the ESEE findings and site plan for Site 600 by modifying the winter operation limitations to be consistent with the recommendations of O[)FW. The applicant's proposed amendments to the winter operating limitations are set forth below: a. The site shall be operated from December 1 through April 30 only in conformance with the provisions set out below. 1. From December 1 through April 30, extraction, hauling, stockpiling, washing rock, and screening of rock shall be allowed. 2. From December 1 through January 31, blasting (for purposes of these conditions, the term "blasting" shall be viewed as including drilling activities) and crushing shall be allowed during any period of fourteen (14) consecutive days if the standard set forth in this subsection can be met. Applicant shall cause the ODFW-prescribed transects to be surveyed for the presence of deer at least once during the seven (7) days prior to the period for which crushing and/or blasting is desired. If any survey conducted during that time period shows the presence of thirty-five (35) deer or more, blasting and/or crushing shall not be allowed. If the applicant desires to crush and/or blast for up to an additional 14 -day time period, a new finding must be made in accordance with this subsection. 3. From February 1 through April 30, blasting and crushing shall be allowed during any period of fourteen (14) consecutive days if the crusher is located adjacent to the Old Highway 20 access and one of the following survey methods is used and the applicable criteria met. If applicant desires to conduct blasting and/or crushing operations beyond this 14 -day period, new findings shall be made in accordance with this subsection 3. a. Applicant shall cause the ODFW-prescribed transects to be surveyed at least twice for the presence of deer during the seven (7) days prior to the period for which crushing and/or blasting is desired. If the average of any two deer surveys conducted during that time period shows the presence of 35 deer or more, blasting and/or crushing shall not be allowed. b. Applicant shall cause the ODFW-prescribed transects to be surveyed at least once and shall conduct one snow survey according to the requirements listed below during the seven (7) days prior to the period for which crushing and/or blasting is desired. If the deer count for any one survey conducted during that time period shows the presence of 35 or more or the snow is of a depth of more than the snow threshold listed below, blasting and/or crushing shall not be allowed. 4. Snow Survey Protocol. Snow measurements shall be measured against the closest first of month or mid -month threshold at the time of measurements. The first of month and mid -month standards are as follows: Hearings Officer Decision PA -00-9 and SP -00-33 Page 11 [Exhibit 3 Page I—. of -'Z=CP- Ordinance 7&W -03(v 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 Snow depths shall be measured in the immediate vicinity of the Hungry Flat Snow Course (off Century Drive) maintained by NRCS on the days as prescribed above. Measurements shall be submitted to the County and ODFW by 4:00 p.m. on the day the measurements are taken. 5. Deer Survey Protocol. Deer counts as prescribed above shall be taken at seven one -mile transects as have been or may be established in consultation with ODFW within a four -mile radius of the surface mining site. The threshold would be reached by sighting 35 deer at any combination of the seven (7) transects. Counts shall be taken at the transects from a vehicle within one and one-half hours of sunrise. Counts shall be taken and verified as accurate by a wildlife biologist acceptable to ODFW. Animal presence data shall be provided to ODFW and the County by 12:00 p.m. on the day the data is gathered. 6. For crushing or blasting operations to begin between February and April, applicant must apply to the County by providing all information showing the applicable criteria have been met. Copies of all such information shall also be given to ODFW. Whenever crushing or blasting operations are taking place, snow depth data and/or animal presence data shall be collected on a bi-monthly basis. ODFW shall review and assess the information for reliability and recommend to the County whether blasting and crushing should be permitted. 7. Notwithstanding the measurement times set forth above, ODFW may, in response to sudden weather changes or major deer movements, take or require measurements at times other than those specified herein. If ODFW determines that the snow depth or animal presence criteria set forth above 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 of the notification by the County. 8. The conditions set forth in this subsection (d) shall be made a condition of approval for any site plan or revised site plan approved for Site 600. The deer presence numerical criterion condition set forth above may be adjusted to account for Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit *B Page 12 Page . :— of Z.(e– Ordinance 7M,03Lo 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 applicant shall be processed as a land use application. The Board Ands that extraction, hauling, stockpiling, washing rock, and screening of rock shall be allowed without restriction from January 1 through December 31 on the site. From May 1 through November 30, blasting, drilling and crushing will be allowed without restriction in order to allow extraction of the significant aggregate resources on the site. Between the months of December 1 and April 30, blasting, drilling and crushing shall be subject to the winter operating guidelines set forth above. Comments received from ODFW state their concurrence with the above proposed amendment to the winter mining operations and the Hearings Officer finds that ODFW Is the appropriate agency whose expertise should be relied upon to ensure adequate protection of the Goal 5 wildlife resource in the North Paulina deer winter range. However, regarding provision (1) and the last unnumbered paragraph of the proposed amendment, Section 18.52.1 10(l) provides limitations to the hours of operations at surface mining sites. Specifically, Section 18.52.11 0(l) states the following: 1. Hours of Operation. 1. Mineral and aggregate extraction, processing and equipment operation Is limited to the following operating hours: a. Surface mining sites located within one-half mile of any noise -sensitive or dust -sensitive use or structure existing on the effective date of Ordinance No. 90-014: 7:00 a.m. to 6:00 p.m. - Monday through Friday and 8:00 a.m. to 5.00 p.m. - Saturday. b. All other sites: 7:00 a.m. to 10:00 p.m. - Monday through Saturday. 2. No surface mining activity shall be conducted on Sundays or the following legal holidays: New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day. To meet the Hours of Operations criteria contained in Section 18.52.110(1), staff recommended referencing and citing the hours of operation in the County code to make sure it was clear that all operations are subject to these requirements. The Hearings Officer agrees with staffs recommendation. Additionally, the Hearings Officer questioned the applicant's attorney at the public hearing regarding the application process referenced in paragraph 6 of the applicant's proposed amendment. Specifically, the Hearings Officer questioned whether the reference to crushing and blasting operations "between February and April" should not have been between December and April since the preceding paragraph 2 of the applicant's proposed amendment proposed to have blasting and crushing allowed under Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 13 Page I. of_. Ordinance q-% certain circumstances from December through January but provided no mechanism for the permitting or review process. The applicant's attorney agreed that paragraph 6 should be amended to make it clear that the information gathered to support the allowance of blasting and crushing operations from December through January was intended to have the same procedure for review set forth in paragraph 6 as the information gathered to support the allowance of blasting and crushing from February through April Furthermore, the Hearings Officer questioned the applicant's attorney about the language in paragraph 6 of the applicant's proposed amendment referencing an "application" to the County for crushing and blasting operations in which the applicant would submit all information showing the applicable criteria have been met. The Hearings Officer was concerned about this language for two reasons. First, the County does not have an application process for this type of review. Second, ODFW is the sole judge of whether the information gathered by the applicant shows that all applicable criteria are met. Therefore, this application is more appropriately handled initially through ODFW with notification to the County. The applicant's attorney testified that Steve George of the ODFW was the person who helped the applicant draft the language for the proposed amendment including both the substantive requirements for the surveys and the procedural review requirements. She further testified that she agreed that ODFW was the reviewing authority for purposes of determining whether the information gathered by the applicant shows that all applicable criteria have been met to allow blasting and crushing from December through April and thought that ODFW would agree with this process as well. Accordingly, the Hearings Officer finds that the following changes are necessary to the applicant's proposed amendment (changes are In bold and underlined): 1. From December 1 through April 30, extraction, hauling, stockpiling, washing rock, and screening of rock shall be allowed slg%cr to Section M52.110 J). Hours of Operatiom of the Deschutes County Code. 6. For crushing or blasting operations to begin between Febroar-yDecember and April, applicant must coordinate with ODFW by providing all information showing the applicable criteria have been met. Geoe ef a# 6ueh infe ati R she aise he given te 90F Whenever crushing or blasting operations are taking place, snow depth data and/or animal presence data shall be collected on a bi-monthly basis. ODFW shall review and assess the information for reliability and wheOwdetermine whether all applicable criteria have been met to allow blasting and/or crushing_ 11 in1`ormation submitted to ODFW. together with ODFW's determination as to whether the applicable criteria have been met shall be submitted to the County prior to beginning any blasting and/or crushing between December and April. Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit Page 14 Page of ?k— Ordinance 2W��3� The Board finds that extraction, hauling, stockpiling, washing rock, and screening of rock shall be allowed subl2ct to Section 18.52.110 (I). Hours of Ogeration, of the Deschutes County Code from January 1 through December 31 on the site. From May 1 through November 30, blasting, drilling and crushing will be allowed sy iect to Section 18.52.110(/). Hogs of Operation, of the Deschutes County Code w0eut FeetFieNen in order to allow extraction of the significant aggregate resources on the site. Between the months of December 1 and April 30, blasting, drilling and crushing shall be subject to the winter operating guidelines set forth above. With the above changes to the applicant's proposal and in light of the support from ODFW that the above -outlined process results in adequate protection of the resource, the Hearings Officer finds this criterion is met. B. Chapter 18.88, Wildlife Area Combining Zone. FINDING: These sections provide that the uses permitted outright and conditionally in the underlying SM zone are also permitted in the WA zone. The existing surface mining operations at Site 600 were approved under SP -97-53 and CU -97-81 and, therefore, are allowed in the WA zone. The applicant does not propose any changes to the types of uses allowed on the subject property, the applicant proposes to change the timing that the winter operations can occur. Therefore, the applicant's proposal meets these criteria. d. Section 18.88.070. Fence standards FINDING: The applicant is not proposing a new dwelling or fence as part of this application. Therefore, these criteria are not applicable. DESCHUTES COUNTY YEAR 2000 COMPREHENSIVE PLAN 1. Surface Minin-a Chapter. pages 144-155. The Surface Mining chapter of the County's Comprehensive Plan contains "Surface Mining Goals and Policies" in order to address the "projected demand for aggregate material in view of the available material ...." The applicant proposes to amend the Comprehensive Plan by Hearings Officer Decision PA -00-9 and SP -00-33 exhibi Page 15 I,— page Of..� Ordinance amending the site-specific ESEE analysis and findings for Site 600 with respect to winter operating limitations. Goal: To protect and utilize appropriately, within the framework 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. FINDING: The applicant's proposal is consistent with this goal because the property is zoned SM, which sets out to protect the mineral and aggregate resources at Site 600. In addition, in zoning the subject property SM, the Board found in the ESEE for Site 600 that the conflicting natural resource and the mineral and aggregate resource are important relative to one another and therefore, "both the mineral and aggregate resource and conflicting natural resources should be protected." As a result, the ESEE for 600, under the "Program to Meet the Goal' banned all winter operations from December 1 through April 30 except In conformance with specific reporting criteria involving deer counts and snow measurements taken at regular intervals. The applicant is seeking additional flexibility, with the concurrence of ODFW, of winter mining operations, which will minimize adverse impacts on the wintering (leer in the North Paulina deer winter range. With ODFW's support for the applicant's proposal to modify the ESEE and site plan to allow for general mining operations, crushing, and blasting during the winter months when the appropriate studies show the applicable criteria are met, the Hearings Officer finds that this goal is met. Policy. 6. Land use decisions of the County shall be based upon balanced consideration of the location, availability and value of mineral and aggregate resources, and conflicting resources and uses as designated in the comprehensive plan. FINDING: In designating the subject property SM zone, the Board, via a site-specific ESEE analysis, balanced consideration of the location, availability and value of mineral and aggregate resources, and conflicting resources, including the wildlife resources --specifically, the wintering deer in the North Paulina deer range. The applicant's proposal to modify winter operations at Site 600, with the support of ODFW, will continue to protect both the mineral and aggregate resource and the wintering deer population in the North Paulina deer winter range, thereby meeting this goal. Policy: 20. The County may establish additional standards and procedures to minimize visual impact, noise, air and water pollution, natural and operating hazards and other environmental Impacts of the extraction and processing of the impact area, where required as a result of a site-specific Goal 5 ESEE analysis. The County shall adopt and apply more stringent operating standards, If required by a site-specific Goal 5 ESEE analysis, where lands in the impact area are zoned residential, landscape management, wildlife or other similar overlay zones, or where such impact area has particularly Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit .JZ Page 16 Page Z of �— Ordinance,-J'a1w -03(P sensitive resources or uses identified in the comprehensive plan, such as wildlife nesting or spawning sites or intensive recreational uses. FINDING: The subject surface mine is located in the WA Combining Zone as the property is within the North Paulina deer winter range. The site-specific ESEE conditions for Site 600, prohibit mining operations at the site from December 1 through April 30 except in conformance with certain winter operating guidelines recommended by ODFW that require the applicant to conduct snow count and deer count surveys at regular intervals and report their, findings to ODFW on an annual basis. At the end of five years, the winter operating guidelines, per ESEE condition (d)(7), would be subject to review in evaluating the effectiveness in protecting deer populations. The record does not contain copies of either snow depth measurements or deer counts for Site 600. However, earlier this year in a similar request to modify the winter operating limitations, the Board adopted Ordinance No. 2000-001 that amended the ESEE Findings and Decision for Surface Mining Site No. 404 located approximately one mile to the east of the subject surface mine and also within the North Paulina deer winter range. The Board's decision relied upon comments and recommendations of ODFW who has monitored collected data and reports from winter operations from Site 404 for four winter operations. Subsection 3(A), "Resource Conflicts," for ESEE 404 states the following: Following four winters of operations under the 1995 revisions to the Program to Meet the Goal, the applicant requested further flexibility in the winter operating restrictions at the site. Based upon its observations and its experience in monitoring this site under the winter restrictions adopted in 1995, ODFW determined. (1) that general mining operations at the site, including extraction, hauling, stockpiling and washing and screening of rock would have minimal adverse effects on the wintering deer population and could therefore be conducted without restriction in the winter months, and (2) that drilling, blasting and crushing activities could occur within certain limitations, as set out in a letter dated October 22, 1999 without adversely impacting wintering deer. As a result, the "Program to Meet the Goal" for Site 404 included an amended ESEE: condition that provided for additional flexibility for general mining operations, blasting and crushing during the winter months subject to ODFW's recommended guidelines. In the subject application, the applicant is also requesting additional flexibility in the surface mining operations during the winter months conducted in accordance with recommended guidelines by ODFW. The Hearings Officer finds that it is appropriate to rely on the expertise of ODFW in determining whether the applicant's proposed modifications to the winter operating limitations for Site 600 will adequately protect wintering deer in the North Paulina deer winter range. Based upon ODFW's concurrence with the applicant's proposal, the Hearings Officer finds the applicant's proposal is consistent with this policy. Fish and Wildlife Chapter. naoes 156-160 FINDINGS: The county's comprehensive plan contains a Fish and Wildlife chapter within the resource elements that includes goals and policies also intended to implement Goal 5. Hearings Officer Decision PA -00-9 and SP -00-33 exhibit Page 17 Page �p_ of 2(. Ordinance '?Al: a=03( GOALS: 1. To conserve and protect existing fish and wildlife areas. 2. To maintain all species at optimum levels to prevent serious depletion of indigenous species. 3. To develop and manage the lands and waters of this County in a manner that will enhance, where possible, the production and public enjoyment of wildlife. 4. To develop and maintain public access to lands and waters and the wildlife resources thereon. 5. To maintain wildlife diversity and habitats that support the wildlife diversity in the County. FINDINGS: The county has established the WA Zone to implement these goals. The subject property is located within the WA Zone because it lies within the North Paulina deer winter range. POLICIES: 1. In light of the need to protect deer winter range and to be consistent with plan policies restricting rural sprawl, the Metolius, North Paulina, Tumalo and Grizzly deer winter ranges shall be protected by special zones. The winter ranges shall be designated on the Big Game Habitat -Wildlife Area Combining Zone Map contained In this plan's resource element.... FINDINGS: The North Paulina deer winter range is protected by the WA Zone and the ESEE findings for Site 600 include special winter operating limitations to protect wintering deer within the North Paulina deer winter range. 10. The County shall notify the Oregon Department of Fish and Wildlife of all land use applications for lands located In the WA Combining Zone or the Sensitive Bird and Mammal Overlay Zone. FINDINGS: The Planning Division notified ODFW of the applicant's proposals and the record includes comments from ODFW that indicate their concurrence with the applicant's proposal. 3. Site-Soecific ESEE Analysis for Site 600 FINDINGS: The "Conflict Analysis and ESEE Findings and Decision" for Site 600 was adopted through Ordinance 96-077 on December 4, 1996. This decision states in part, in the Conflicts Analysis section for wildlife. ;he following: Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit .� Page 18 Page IS - Of Ordinance '-� D 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 Pauline 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 Mining Operating Guidelines in Zoned Big Game Winter Ranges." ODFW analyzed the conflicts with surface mining presented by wintering deer /n a subarea of the North Pauline 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 comer 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 activify in this area are less severe in the winter months than conflicts in other deer winter range areas /n the County. This Is due to a combination of (1) lower development pressures and lower expected development densities /n this area than In other designated winter deer ranges; (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 ranges 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. (Emphasis added.) The "Program to Meet the Goal," in the ESEE for Site 600, under item 22, subsection (d), lists the current winter guideline operating restrictions between December 1 through April 30 of each winter season. Mining operations are prohibited at Site 600 during this time except when the applicant/operator collects required snow measurements and deer counts at regular intervals throughout the winter season and submits the results to ODFW and the County. ESEE Condition (d)(7) requires the applicant/operator to provide ODFW with a report of the data collected during the year on an annual basis. Further, that the winter operating guidelines listed in the ESEE for Site 600 are subject to review after five years to evaluate their effectiveness in protecting deer populations. Hearings Officer Decision PA -00-9 and SP -00-33 ;;xhibiPage . �— of 2�_ Page ) 9 � Ordinance"�- 6O The record does not include any copies of annual reports submitted to ODFW. However, as previously mentioned, earlier this year in a similar request to modify the winter operating limitations, the Board adopted Ordinance No. 00-001 that amended the ESEE Findings and Decision for Surface Mining Site No. 404 (located approximately one mile to the east of the subject surface mine and also within the North Paulina deer winter range). The Board's decision relied on comments and recommendations of ODFW who has monitored collected data and reports from winter operations from Site 404 for four winter operations. ODFW determined that general mining operations would have minimal adverse effects on the wintering deer population and could therefore be conducted without restriction in the winter months; and that drilling, blasting and crushing activities could occur within certain limitations added to the ESEE conditions for Site 404. In the subject application, the applicant is proposing to modify the winter operating guidelines to include general mining operations. blasting and crushing subject to ODFW's recommended guidelines. ODFW's comments state their concurrence with the applicant's proposal and the Hearings Officer finds that ODFW is the appropriate agency with the expertise to rely on in determining whether the proposed modifications will adequately protect the wintering deer. However, based on staffs recommendation, with which the Hearings Officer concurs, the Hearings Officer finds that in addition to the proposed amendments listed above, another portion of the ESEE for Site 600 needs to be amended to be consistent throughout. The proposed new language is identified in bold underline. Conflicting ResouEges 23. The Board 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 BeeFd 411`1118F We the! !he wildlife FARIgatien senditieRs impesed . The Board finds that the screening and buffering ESEE requirements are met by the screening and 'buffering requirements in the Deschutes County zoning ordinance. • t • : 1 • 1 1 • • • . 1 1 = ♦ 1 = 1 l l 1 • ♦ • 1 •11=1 TAIL Coal. The Board finds that the numerical criteria are based upon a historical relationship between snowfall and use of the subject portion of the North Paulina as Site 600 located in the northwestern portion of the North Paulina Deer Winter Range to operate blasting and crushing in the wintertime when the snecifled 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 mule deer and can be allowed in the winter months Blasting and crushing can have impacts on wintering deer, and shutdown of blasting and crushing will be reauired when the ODFW criteria have been exceeded Hearings Officer Decision,PA-00-9 and SP -00-33 Exhibit Page 20 Page 2.&– of 2L—, Ordinance ? The Board further finds that the wildlife mitigation conditions imposed under the Maram to meet the -goal will offer protection of deer and antelope herds. The Board finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. The BeaF61 ARds ihat the WiRtff Fan,ae-v iidii€e net -wAdePA%) - Based upon ODFW's support for the applicant's proposal, the Hearings Officer finds that the proposed modifications to winter mining operations for Site 600 will provide adequate protection for the North Paulina deer winter range resource while also protecting and preserving the mineral and aggregate resource on Site 600, consistent with Goal 5. C. Oregon Administrative Rules (OAR) Chapter 660, Division 23, Procedures and Requirements for Complying With Goal 5 FINDINGS: In 1996, the Land Conservation and Development Commission (LCDC) adopted new Goal 5 administrative rules. The new rules are found in OAR 660, Division 23 and replace the rules found in OAR 660, Division 16. OAR 660-023-0250 describes the applicability of the new rules in pertinent part as follows: (1) This division replaces OAR 660, division 16, except with regard to cultural resources, and certain PAPAS and periodic review work tasks described in sections (2) and (4) of this rule. Local governments shall follow the procedures and requirements of this division or OAR 660, Division 16, whichever is applicable, in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to PAPAS initiated on or after September 1, 1996. OAR 660, Division 16 applies to PAPAs initiated prior to September 1, 1996. For purposes of this section "initiated" means that the local government has deemed the PAPA application to be complete. (3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if: (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5; ... The subject plan amendment is a Post Acknowledgement Plan Amendment (PAPA) which would amend the comprehensive plan to modify the ESEE findings for the subject property �. Hearings Officer Decision PA -00-9 and SP -00-33 exhibit .�.Page � of 2L— Ordinance 21 Ordinance 128 included on the county's inventory of significant mineral and aggregate resource sites. The application was accepted as complete on July 23, 2000, therefore, the new Goal 5 administrative rules in OAR 660, Division 23 apply to this application. The new administrative rules establish standards and procedures for identifying and protecting Goal 5 resources. OAR 660-023-0180 addresses mineral and aggregate resources in particular. Subsection (7) describes the applicability of the new rules to PAPAS as follows: Local governments shall amend the comprehensive pian and land use regulations to include procedures and requirements consistent with this rule for the consideration of PAPAs concerning aggregate resources. Until such local regulations are adopted, the procedures and requirements of this rule shall be directly applied to local government consideration of a PAPA concerning mining authorization, unless the local plan contains specific criteria regarding the consideration of a PAPA proposing to add a site to the list of significant aggregate sites, provided: (a) Such regulations were acknowledged subsequent to 1989; and (b) Such regulations shall be amended to conform to the requirements of this rule at the next scheduled periodic review, except as provided under OAR 660-023-0250(7). The County has not amended its plan or land use regulations to incorporate the new Goal 5 rules. Therefore, the rules directly apply to the subject application. However, in a previous finding by the Hearings Officer for a similar plan amendment to amend the winter operating guidelines at Surface Mining Site 404 located east of the subject property (PA -99-8), the Hearings Officer found that the applicability of this section of the rule is limited. Specifically, the Hearings Officer found: However, I find their application is limited because the subject property already Is listed in the county's inventory of significant mineral and aggregate resources and the comprehensive plan already contains a conflicting use analysis, ESEE analysis and findings and a program to achieve the goal for Site 404 which include the winter operating limitations at issue in these applications. I find the only provision of OAR 660-023-0180 that Is applicable to the applicant's proposal is subsection (4)(e), which provides in pertinent part as follows: Where mining is allowed, the plan and implementing ordinances shall be amended to allow such mining. Any required measures to minimize conflicts, Including special conditions and procedures regulating mining, shall be clear and objective. Additional land use review (e.g., site plan review), if required by the local government, shall not exceed the minimum review necessary to assure compliance with these requirements and shall not provide opportunities to deny mining for reasons unrelated to these requirements, or to attach additional approval requirements ... In the present case, a similar finding is appropriate for the subject application. The subject Surface Mining Site 600 is listed on the County's inventory list of significant mineral and Exhibit.__. Hearings Officer Decision PA -00-9 and SP -00-33 Page = of Z(0 Page 22 Ordinance aggregate resources and the comprehensive plan contains a conflicting use analysis, ESEE analysis and findings and a program to achieve the goal for Site 600 which includes the winter operating limitations. In addition, the Hearings Officer finds the "special conditions and procedures regulating mining" that limit winter operations on Site 600 to protect the North Paulina deer winter range resource are clear and objective and describe specific actions that the applicant must take to conduct winter mining operations. Proposed changes to modify the winter mining operations also remain clear and objective and outline specific actions that must be implemented by the applicant/operator prior to initiating winter mining activities. The proposed modifications will not exceed the minimum review or conditions required to assure compliance with Goal 5 and the administrative rules and will not deny mining for reasons unrelated to these requirements or attach additional approval requirements. • Based on ODFW's concurrence with the applicant's proposal and the above analysis, the Hearings Officer APPROVES the applicant's proposal to amend the Comprehensive Plan ESEE Findings and the Site Plan for Site 600 as follows: The ESEE Findings and Decision for Site 600 attached to Ordinance 96-077 and included in the Comprehensive Plan, and the Site Plan for Site 600, shall be amended to include the following language replacing and superseding current winter operating limitation language: The site shall be operated from December 1 through April 30 only in conformance with the provisions set out below. A. From December 1 through April 30, extraction, hauling, stockpiling, washing rock, and screening of rock shall be allowed subject to Section 18.52.110(1), Hours of Operation, of the Deschutes County Code. B. From December 1 through January 31, blasting (for purposes of these conditions, the term "blasting" shall be viewed as including drilling activities) and crushing shall be allowed during any period of fourteen (14) consecutive days if the standard set forth in this subsection can be met. Applicant shall cause the ODFW-prescribed transects to be surveyed for the presence of deer at least once during the seven (7) days prior to the period for which crushing and/or blasting is desired. If any survey conducted during that time period shows the presence of thirty-five (35) deer or more, blasting and/or crushing shall not be allowed. If the applicant desires to crush and/or blast for up to an additional 14 -day time period, a new finding must be made in accordance with this subsection. C. From February 1 through April 30, blasting and crushing shall be allowed during any period of fourteen (14) consecutive days if the crusher is located adjacent to the Old Highway 20 access and one of the following survey methods is used and the applicable criteria met. If applicant desires to conduct blasting and/or crushing Hearings Officer Decision PA -00-9 and SP -00-33 Page 23 Exhibit - Page ,01a__ of 2 o .. Ordinance operations beyond this 14 -day period, new findings shall be made in accordance with this subsection 3. a. Applicant shall cause the ODFW-prescribed transects to be surveyed at least twice for the presence of deer during the seven (7) days prior to the period for which crushing and/or blasting is desired. If the average of any two deer surveys conducted during that time period shows the presence of 35 deer or more, blasting and/or crushing shall not be allowed. b. Applicant shall cause the ODFW-prescribed transects to be surveyed at least once and shall conduct one snow survey according to the requirements listed below during the seven (7) days prior to the, period for which crushing and/or blasting is desired. If the deer count for any one survey conducted during that time period shows the presence of 35 or more or the snow is of a depth of more than the snow threshold listed below, blasting and/or crushing shall not be allowed. D. Snow Survey Protocol: Snow measurements shall be measured against the closest first of month or mid -month threshold at the time of measurements. The first of month and mid -month standards are as follows: First of Month December 6.8 inches January 11.0 inches February 14.4 inches March 9.3 inches April 4.2 inches the November 5.1 inches December 9.1 Inches January 12.7 inches February 11.9 inches March 7.0 inches April 2.2 inches Snow depths shall be measured in the immediate vicinity of the Hungry Flat Snow Course (off Century Drive) maintained by NRCS on the days as prescribed above. Measurements shall be submitted to the County and ODFW by 4:00 p.m. on the day the measurements are taken. E. Deer Survey Protocol: Deer counts as prescribed above shall be taken at seven one -mile transects as have been or may be established in consultation with ODFW within a four -mile radius of the surface mining site. The threshold would be reached by sighting 35 deer at any combination of the seven (7) transects. Counts shall be taken at the transects from a vehicle within one and one-half hours of sunrise. Counts shall be taken and verified as accurate by a wildlife biologist acceptable to ODFW. Animal presence data shall be provided to ODFW and the County by 12:00 p.m. on the day the data is gathered. Exhibit Hearings Officer Decision PA -00-9 and SP -00-33 Page ;! of .a(Q Page 24 Ordinance F. For crushing or blasting operations to begin between December and April, applicant must coordinate with ODFW by providing all information showing the applicable criteria have been met. Whenever crushing or blasting operations are taking place, snow depth data and/or animal presence data shall be collected on a bi- monthly basis. ODFW shall review and assess the information for reliability and determine whether all applicable criteria have been met to allow blasting and/or crushing. All information submitted to ODFW, together with ODFW's determination as to whether all applicable criteria have been met shall be submitted to the County prior to beginning any blasting and/or crushing operations between December and April. G. Notwithstanding the measurement times set forth above, ODFW may, in response to sudden weather changes or major deer movements, take or require measurements at times other than those specified herein. If ODFW determines that the snow depth or animal presence criteria set forth above 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 of the notification by the County. H. The conditions set forth in this subsection (d) shall be made a condition of approval for any site plan or revised site plan approved for Site 600. The deer presence numerical criterion condition set forth 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 applicant shall be processed as a land use application. The Board finds that extraction, hauling, stockpiling, washing rock, and screening of rock shall be allowed subject to Section 18.52.110(1), Hours of Operation, of the Deschutes County Code from January 1 through December 31 on the site. From May 1 through November 30, blasting, drilling and crushing will be allowed subject to Section 18.52.110(l), Hours of Operation, of the Deschutes County Code in order to allow extraction of the significant aggregate resources on the site. Between the months of December 1 and April 30, blasting, drilling and crushing shall be subject to the winter operating guidelines set forth above. 2. The ESEE Findings and Decision for Site 600 attached to Ordinance 96-077 and included in the Comprehensive Plan also shall also -be amended to include the following language, with the new language in bold underline, replacing and superseding the current language: Conflicting Resources 23. The Board 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. 'tlgatlen and-aRtelepe-heFds. The Board finds that the screening and buffering ESEE: requirements are met by the screening and buffering requirements in the Deschutes County zoning ordinance. Hearings Officer Decision PA -00-9 and SP -00-33 Exhibit 3 Page 25 Page �2 5... of Ordinance 5-0�'70* The Board finds that the ODFW has orocosed a grogram allowing fo w nter blasting and crushing operations at the site when certain snow conditions and/or 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 snowfall and use of the sublect TZ -it- 1711MIZT.-TITT WIT -7:11-r M- • i1=1 1= •: I:• 1� • 1: 1• •::=1 :.:• • :• 1 1 •li - •1 • 1 1: •- j l t 1 - 1 = Il . 1 - - - 1 • _ l ' t • 1 • • 1 • l • l � \ ' l l 1 '•- 11= 11• l: • ll H •- -1 •lt -1 tl•..:• 1.: [111,7A • • • • 1 • • •• •• • • _ 1 • - 1 _ • • : 1 The Board finds that such mitigation will not prevent the County from achieving its goal, since the site will be allowed to be mined. i�teF 3. All other restrictions established for this site under the Conflict Analysis and ESEE Findings and Decision, as well as the Conditions of Approval for SP -97-53 and CU -97-89 must remain in place as written. �� DATED this j day of October, 2000. MAILED t --Cay o October, 2000. C-� alu- Fa Fa—ewis! Hearh q's Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED. Hearings Officer Decision PA -00-9 and SP -00-33 Page 26 i�xhihit .- _. ._....,. Page alt of Ordinance