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2001-891-Minutes for Meeting November 20,2001 Recorded 12/13/2001DESCNUTES COUNTY OFFICIAL RECORDS CJ 1001.89 MARY SUE PENNOLLOW, COUNTY CLERK ES CO COMMISSIONERS' JOURNAL 12/13/2001 01:14:38 PM �� LZ �� Board of Commissioners J, A 1130 N.W. Harriman St., Bend, Oregon 97 701 -1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wotf Dennis R. Luke MINUTES OF PUBLIC HEARING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, NOVEMBER 209 2001 Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; George Read and Cathy Tilton, Community Development; and numerous citizens. The subject of the meeting was Commissioners' deliberations on ordinances dealing with: • A text amendment to Title 18, allowing irrigation districts in Deschutes County to operate, maintain and pipe existing irrigation systems, and to allow, as a conditional use, surface mining activities, including the off-site use and sale of material; and • An amendment to Title 23, Deschutes County Year 2000 Comprehensive Plan, to adopt a mineral and aggregate inventory list that contains non-significant mineral and aggregate material, and amend the ESEE for wetlands. Chair Tom De Wolf opened the meeting at] 0.- 00 a. m. DENNIS LUKE: I would like to put a couple of things on the record. I'm a member of the Upper Deschutes River Watershed Council. There was a discussion last night on Squaw Creek and watershed in general, and nothing specific to this hearing. In general it was about watershed, and a little bit on piping. There wasn't anything that would interfere with this hearing. I just wanted to put it on the record that we had those discussions last night. And, of course, we've all received quite a few letters. CATHY TILTON: One of the things I wanted to clarify, because some of the questions were why we are adding piping when it is already a use permitted outright, I just wanted to say that the process that we started was initiated by Squaw Creek Irrigation District. Minutes of Deliberations - Irrigation District Ordinances Page 1 of 21 Pages Tuesday, November 20, 2001 Quality Services Performed with Pride TILTON: They requested to include the operation, maintenance and piping of existing irrigation systems as a use permitted outright. Then they went further, and they defined what irrigation systems, which included ditches, pipelines, reservoirs, related structures and facilities; and included surface mining. The Planning Commission reviewed this, and we've come out with a recommendation as listed in the ordinances before you in the text amendment. So, we kind of started out in the beginning with the applicant's initiation, went through the Planning Commission process, and evolved to this point. This just kind of gives you a little background on the processes, and how we got where we are today. LUKE: We received several letters and public comment, and there is nothing in this ordinance that allows the canal companies to just go in and lay pipe. All this says is that we will not require a permit for them to lay that pipe. That's my understanding; is that your understanding? TILTON: Right. For those irrigation canals that have wetlands in the irrigation canals, what the text ordinance amendment does is defers regulatory authority to the Division of State Lands, the state agency that regulates wetlands. It would not require a land use permit. Right now, if somebody were to conduct fill and removal in an existing canal that is in land defined as wetlands, they would need a conditional use permit right now. The conditional use specific standards that are listed under Chapter 128 do not address things such as aesthetics or property value. LUKE: My understanding of the testimony that staff gave is that we currently do not require a permit to pipe on EFU zoned land. TILTON: Again, we would review a permit if it involved piping in a wetland. LUKE: But not all EFU land is wetland. So currently we do not require a permit to pipe in EFU ground unless it is wetland. TILTON: Right. Minutes of Deliberations - Irrigation District Ordinances Page 2 of 21 Pages Tuesday, November 20, 2001 LUKE: Theoretically, you require a permit for MUA-10, or Rural Residential 10, and Forest zones. Do you require a permit to pipe in those areas. TILTON: Historically we have not. That's my understanding, that we have not required a land use permit for piping on sites with any existing canals that don't involve wetlands. TOM DEWOLF: So this is where I'm confused. Because, in my reading of this material, it sounds like we have no regulatory involvement, historically, with any of this. And that when we are dealing with wetlands, the Division of State Lands has regulatory authority. So why we do we even need this ordinance? GEORGE READ: I understand your question. The reason that we're here today is that because if you want to pipe a canal, and if the canal is in a wetland - which most canals are - because under the wetland inventory the County adopted as part of its Goal 5 review in the early 1990's, we adopted maps that were the National Wetland Inventory. These were very non-specific maps, showing certain irrigation canals at wetlands. Because they are designated as wetlands, a conditional use permit is required in order to fill those, and piping is considered fill. Therefore, we do regulate piping, but only for the purposes of looking at fill and removal in wetlands, not for any other reason. DEWOLF: Can you explain why it wouldn't make more sense to get an accurate wetlands inventory, instead of doing this? This seems like we are going at this backwards, as it would still be based on faulty maps, according to what you just said. READ: We had a wetland inventory done around the edge of the La Pine area only, which cost about $30,000. We got a grant to do it. It is extremely expensive to go out and do site-specific mapping of wetlands beyond what we have been given to us by the state. The other reason is, today we have our requirements for conditional uses for fill and removal. In addition to that, we have the Division of State Lands that regulates fill and removal in wetlands. Minutes of Deliberations - Irrigation District Ordinances Page 3 of 21 Pages Tuesday, November 20, 2001 READ: So, right now, we have dual regulation in Deschutes County. The reason we have that is historically the Division of State Lands didn't have a presence in Central Oregon, and when we had a violation we didn't get a lot of help. So the County got in the wetlands regulation business as a part of the river study in the late 1980's and early 1990's. When we have a wetlands, and we have a question as to whether it is, we call the Division of State Lands and refine our interpretation of the wetlands based upon what they tell us. What traditionally happens in some of the irrigation canals that show up as wetlands on the inventory is that we call the Division of State Lands. They look at it, and say, "no, no wetlands here as far as we're concerned, no permit required", and we're done with it. The problem with that is we probably should require a land use permit, because they are on our inventory and in our plan as wetlands. We should be requiring every one of those to go through a permit process. That would be a fill and removal permit. So, what we're trying to do is get rid of that problem where our actions don't make a lot of sense and their duplicative of the state process, and get it down to just one process. That's why we have this on the table before you. Is that clear enough? MIKE DALY: Isn't it also true, George, that certain federal regulators want clarification about what our statutes are, when the irrigation districts go for grants and et cetera? And part of this reason is that they want some clarification as to what the role of the County is? READ: Maybe peripherally. Maybe the irrigation districts want to do it for that reason. That wasn't one of the stated reasons. I think what we want to do is to get clarity in what the process is, because our practice is different from our code, because these wetlands maps aren't very good. Number one. Number two, to avoid dual regulatory review. For example, if an irrigation district wants to pipe, they have certain obligations with state agencies, particularly Water Resources, and that brings in the other state agencies. That's one process that occurs. Additionally you would have a County process that occurs for fill and removal in wetlands. The question in front of you is, is that a good idea or not? Minutes of Deliberations - Irrigation District Ordinances Page 4 of 21 Pages Tuesday, November 20, 2001 We've done it that way, we've not had a lot of piping, and irrigation districts have questioned whether we have the authority to regulate this. I've responded, yes, we do, because these are protected Goal 5 resources. But the question is, do we want to straighten this out or not, now. DALY: I think most of these folks in the room are probably worried that if we pass this, it would just give the irrigation districts outright license to go and pipe. I think that's probably a misconception, but it's based upon the letters I've received from many people of these people. I think there is a misconception here, and if we pass this ordinance it's really not going to change a whole lot. We haven't regulated it in the past, and this ordinance says we won't do that in the future. ., , I have to disagree with this statement. This misconception that we haven't regulated this in the past is false. We do regulate it, we have regulated it, and it's a conditional use if it is in a wetland. DALY: Just wetlands. I understand. LUKE: If they apply, and if you catch them. Correct. And then, the other thing is, when the Division of State Lands comes in and says, no, it's not a wetlands, even though it is a wetlands on our inventory, then we're kind of put in this odd position of regulating something that people don't agree is a wetlands. That's what we're trying to get out of. DALY: Okay. LUKE: You, representing the County, believe that you have the ability to permit these kinds of things. But there is a question. Has the state given any kind of opinion on whether the counties have this kind of jurisdiction? Minutes of Deliberations - Irrigation District Ordinances Page 5 of 21 Pages Tuesday, November 20, 2001 Our Goal 5 process on how we do this kind of review is contained in our comprehensive plan, which actually was appealed when we got acknowledged, by the Thousand Friends of Oregon and ARLU DeCo. We went through a whole series of a paper exercise to show all the programs that we have to achieve the protection of wetlands. And this was listed as one of the programs to achieve the protection of wetlands. So, that's how we do it. In the meantime, the state law has changed, as a matter of fact in part because of Deschutes County and this cumbersome process we ran into with Goal 5. A safe harbor was created. This is a way to address the goals without going through what we had to go through in this large paper exercise. The safe harbor is that if you allow the Division of State Lands to regulate wetlands, you don't have to do any more in terms of fill and removal of wetlands. So, since we went through our periodic review process, the rules have changed. We can basically defer fill and removal permits to the Division of State Lands; and that's why we're here in front of you. One of the things we need to do, if you tell us to go ahead, is develop the comprehensive plan and goal amendment language to make that happen. We talked with Laurie (Craghead) about it this morning, that we really do need to amend our plan to make sure that we change that language in our plan. But, we are allowed to do that now. LUKE: It seems to me that when you were doing wetlands studies, that farmers' ponds are also wetlands. READ: Yes, they are still. LUKE: So if fill and removal are done by a farmer on his pond, does that require a permit? Before, or after, it requires a permit, because it's a wetlands; a Division of State Lands and a County permit. LUKE: So, how many people are guilty of taking their tractor and cleaning out their pond without getting a permit? Minutes of Deliberations - Irrigation District Ordinances Page 6 of 21 Pages Tuesday, November 20, 2001 READ: There are exceptions to fill and removal; that is, maintaining existing facilities for irrigation purposes. You have a point there, there is a code enforcement issue in terms of how much fill and removal can occur, how much happens, and whether these are really the kind of wetlands that need to be protected. But that is a national argument; that's a national debate. We haven't gotten into the middle of that. We've just accepted what the federal government says are wetlands. LUKE: Just so I'm clear in my own mind. I'm not talking about the mining part. If we pass this ordinance, all it says is that if someone is going to pipe, either on their private land, which would be a lateral; or a canal company on public land; they would not require a County permit to do that. But, they would still require, in most cases, a Division of State Lands permit, and would be dealing with water resources, which would bring in Fish & Wildlife and the other state agencies. Is this right? READ: That's correct. DEWOLF: The area that I'm still unsure of is, there's no easements in here, unless I missed it. I don't believe I've seen a copy of any of these easements. So I don't know what the easements allow or not allow, or what they say or don't say. The problem there for me is the folks that who are most concerned about piping. I got a letter from one individual who lives in Canal View Estates. Are we going to pay for changing the signs to they will say "empty dirt plot estates"? That's a legitimate concern that people have if, in fact, the easements have nothing to do with piping and the canal districts would have to get permission in order to change from a canal to a pipe. They would actually have to alter the easement. That would ease a whole lot of people's minds and it would be clarification for me in making this decision. I don't know the answer to that. DEWOLF: The second thing is, I don't know what future piping plans are. I don't get a clear picture here. Maybe the irrigation districts only plan to pipe in certain areas that do not include places such as Canal View Estates, and the properties of other folks who have counted on this for aesthetics. I understand that it's not our regulatory role to enforce or not enforce based on aesthetics. If I lived there, though, it would be a big deal to me. So that does have an impact on my decision-making. Minutes of Deliberations - Irrigation District Ordinances Page 7 of 21 Pages Tuesday, November 20, 2001 DEWOLF: The other thing, that we haven't discussed yet, is on excavation limitations. That doesn't seem really clear here to me. Can the canal become wider? Do the easements speak to that, or does the ordinance speak to that? Can the canals become deeper? I feel like we've gotten a whole bunch more information during the last couple of weeks, and it has raised more questions for me than it has answered for me. I was already unsure about this. LUKE: Even by today's standards, if someone comes in and wants to pipe, and you give them a permit, that permit does not override an easement. The easement is a contract between the property owner and the person or group that has the easement, correct? LAURIE CRAGHEAD: Correct. DEWOLF: But I just don't know what those easements say. IROJ114 It really doesn't matter, because you can't affect them anyway. DALY: It doesn't matter at all. CRAGHEAD: Correct. DEWOLF: However, if in fact the easements say that the irrigation districts can do whatever they want. Pipe it, elevate it, whatever they want. Then our decision could in fact be carte blanch for irrigation districts to do whatever they want. And maybe that's okay, but that's troubling to me. There is a lot of testimony that has come in. And one thing that has been raised that I think is a live question is this relationship between applications and property owners. Today, to file an application with Deschutes County, you need to have approval from the property owner in order to apply, for any application. So, let's say that there is a wetland, and let's say that there is a proposed piping project. In order to do that in a wetland, under the way our code is structured today, the owner needs to approve that. Minutes of Deliberations - Irrigation District Ordinances Page 8 of 21 Pages Tuesday, November 20, 2001 DEWOLF: But, if we approve this and take ourselves out of the regulatory business on this, that is no longer the case. READ: That is correct. That is something that we have discovered in looking at the data and the things that have been raised by people submitting testimony regarding the ownership question. That is also an issue with the fill and removal issue. Now, the mining issue is a bit misunderstood, too. Maybe I should qualify it. It requires putting the site on County inventory before you can mine, which is a comprehensive plan amendment. There are only two sites proposed right now. DEWOLF: You are talking about excavation for the creation of a reservoir; you're not talking about maintenance. READ: It could be part of maintenance. Let's say you are piping and you're going to pull some material out; what are you going to do with it. This would allow selling it. But it would have to be inventoried. Under our proposal that is before you now, you'd have to go through a comprehensive plan amendment and put it on the inventory. Then you would have to go through a conditional use permit to excavate. That would involve a land use permit. So I think, from that perspective, the excavation part of it is pretty well covered except for this one question about applying to mine on somebody else's land without them being a party to the application. I think you can put that in one box. The other one, the piping issue, does raise a question as to the authority of the irrigation district to even file an application. That's something that has just come up that we do need to talk about. DEWOLF: Can we make a decision without having an answer to that question? Of course we can, but is it a wise thing to do, in your opinion? READ: That's for you to decide. I think that this is something that is new that we just ran into. We should have some discussion. Taking it out would clearly mean that people wouldn't have a say. The question is whether that is the right thing to do. Minutes of Deliberations - Irrigation District Ordinances Page 9 of 21 Pages Tuesday, November 20, 2001 LUKE: I have a hard time understanding this. If I give somebody an easement across my property, and if that easement is going to change, that's between me and the person who has the easement. I don't see how this ordinance can affect a property right. How can passing this ordinance affect a property right? CRAGHEAD: It doesn't, from that standpoint. It just makes one less public process hurdle for the irrigation district to go over in terms of doing piping in wetlands. Right now, they would have to file for the conditional use permit application and they would have to get that property owner to sign off on that permit. The only thing we're doing with the piping ordinance is to say that we no longer that to put up that hurdle. It doesn't mean that the landowner has to be in agreement with the irrigation district when they go to the Division of State Lands, Water Resource Department. DEWOLF: Where would they hold their hearing? CRAGHEAD: I don't know what their process is. DEWOLF: That's the other thing. It removes it out of local control and puts it over to the state, and we have virtually no control over what happens there. What extra burden would this put on the citizens of Deschutes County? I just don't know. These are just the areas that have been troubling to me. LUKE: Will they care what we said? Will the Division of State Lands take into account what the County said, or do they have the ability to overrule us? READ: They take into consideration what was said here. With regard to the dual fill and removal regulations, I don't believe they can overrule us. LUKE: We're talking about piping. READ: My guess is the answer is no. Minutes of Deliberations - Irrigation District Ordinances Page 10 of 21 Pages Tuesday, November 20, 2001 DEWOLF: The flip side of this is the thing t hat we all need to be aware of, which is the idea of conserving water, so that years from now we won't end up where Klamath Falls was this past summer. This is a prime concern. I don't want to put out the impression that I'm ignoring that, as it is a very high concern. I feel like what has been brought to my attention the past couple of weeks has raised questions that I don't have answers to yet. What we were told is we need to do this now, because we have a December 31 deadline for grants. Yet, there's no evidence provided that shows that this is the case. And we've been told that the opposite is true, that there are no grants at risk. I've got both of these based on people's testimony, but no evidence to decide upon. I don't know which is true. So I'm not sure how much weight to give that. LUKE: How long will it take to get an answer on the questions Tom has raised on the effects on easements? CRAGHEAD: We'd have to have some examples of easements brought in to us. DEWOLF: If you guys already have a decision one way or the other ... LUKE: I was under the impression that this wouldn't affect the easements. In fact, I've told people that. If they do, I want to know about it. I' W 113 What I'm saying today is that to do something to somebody's land, under our procedures ordinance, we require the owners' signatures. There's this issue when irrigation districts are piping on somebody's property whether they would need the owners' signatures to file an application. DEWOLF: If I'm an owner, that sounds like to me that it does affect, maybe not the easement, but the use of that easement. If in fact now I have to sign off before anything can change, and by the passage of this ordinance they no longer require my signature in order for things to change, that does change the effect of that easement. Minutes of Deliberations - Irrigation District Ordinances Page 11 of 21 Pages Tuesday, November 20, 2001 CRAGHEAD: They still have to do a sign -off, because the irrigation district would not have any more of a legal right to pipe if the easement didn't allow it. All it means is that the County is not going to require that signature. That's the only thing that this changes. It doesn't mean that they still wouldn't have the legal right to say, "wait a minute, my easement doesn't say you can pipe here". It just says that the County is not going to get involved in the piping issue. DEWOLF: Are these easements public record? CRAGHEAD: I assume they are. DEWOLF: So we can get a few examples? CRAGHEAD: To get copies of them without doing title reports or having members of the public turn them in, might take quite a bit of research if we have to do it ourselves. It would help us out if the landowners turned in some copies to us. DEWOLF: Would we have to reopen the public hearing in order to accept easements? CRAGHEAD: This is a legislative matter, and there is no thing such as ex parte contact. So I think you can still accept information, but just to be safe I would go ahead and put on the record that you have reopened the record for that information. I mean, you could have accepted a letter today anyway. You have only asked that the public get information in early so you'd have time to review it. DALY: It's my opinion that the County shouldn't get involved in this issue of easements. don't think that's the County's area of involvement. I think that ultimately these issues are going to be taken to a court of law, and those decisions are going to be made outside of the County. I'd like to keep government out of this issue. In my opinion, we shouldn't be involved in that. I think no matter what we do, it's going to go to court anyway. Minutes of Deliberations - Irrigation District Ordinances Page 12 of 21 Pages Tuesday, November 20, 2001 DEWOLF: Government is involved. What you're saying is that we take it out of local government control and put it into state government. DALY: No. DEWOLF: But that's the effect of taking the County government out of it. DALY: There's too much government regulation anyway. I think this whole issue is between the irrigation districts and property owners. If what we do today takes it out of our hands, they will solve their own problems; we don't need to be involved in the regulation. Traditionally, in the past, that is the way it has been except for your wetlands issue. DEWOLF: But if all canals are wetlands, we're involved. TILTON: Most of the canals on our national inventory maps are identified as wetlands LUKE: There are a lot of canals. There are the big ones, the laterals that come off the large canals, and then there are the smaller canals from there. So when you are talking about canals on wetlands, are we talking about the big feeder canals, or are we talking about all of them? How much of the canal system is part of the wetlands? TILTON: Throughout the County we don't know, because the wetlands maps are divided up into different quadrant maps. I did bring one example of a quadrant map that shows some of these canals that are identified as wetlands, if you'd like to see it. We did not prepare this kind of map, but with the GIS program we could prepare a map and show you where they are. Minutes of Deliberations - Irrigation District Ordinances Page 13 of 21 Pages Tuesday, November 20, 2001 LUKE: I asked a general question. Are we talking about the big canals and some of the laterals, or are we talking about just the laterals? You surely aren't talking about the ditches that service after it crosses the weir. I would be interested in having legal counsel take a look at two or three easement papers. If there are people here who would volunteer to supply those, we would appreciate it. I don't think it would take very long. DEWOLF: Can we ask the irrigation districts what their future plans for piping are, and whether it includes private property, so that we have that information? And maybe prepare something along those lines? CRAGHEAD: So you're asking them to put into writing what their piping plans are? 1W811144 I'm not sure they know. DEWOLF: If they don't know, they can say they don't know. And if they don't wish to share it, they can say that, too. LUKE: We had an interesting presentation last night that talked about, because of the seepage of some of the canals that are near the Crooked River basin, actually feed into the lower Crooked River and are part of that flow. And if you pipe the canal and put the water back into the Deschutes, it changes how the current water system flows now. So you'd be losing water in the lower Crooked River because you're putting it back into the Deschutes. So, they have delayed the hearing process in Salem because of that issue. DEWOLF: From staff, if I could understand a little better, and maybe it's just a matter of pointing out where in here that I'm not seeing it, is what we're talking about in terms of excavation limitations, is there anything to limit that. Or, is that a condition that we could add if this were to go forward, such as the dimensions of the canals? Minutes of Deliberations - Irrigation District Ordinances Page 14 of 21 Pages Tuesday, November 20, 2001 LUKE: The thought I had on that, in a meeting I had with legal counsel in my office, we had a discussion about the canal system itself. We discussed that the removal would be limited to that which is new, which has come down the canal during the past few years or since the last cleaning. If you are going to take out more than that, this is a different permit process. Also, you'd have to get permission to enlarge the canal, to make it deeper, excavate new material out of there, and so on. Legal counsel asked how you would regulate that; like any other code violation? You expect people to do what is right. If there is a code violation and I'm the property owner, I'm going to turn you in if I see you doing something improper. That would be my suggestion. I stated this before and will say it again; the only way you can mine is to put the material on the inventory. Under today's ordinance, you have to have owner consent to make an application for the conditional use permit. There's a question as to whether you have to get the owner's consent to put it on the inventory, but there has to be a comprehensive plan amendment hearing that identifies the quality, quantity and location of the material. This is a less significant inventory; there is a surface mining threshold that has quality and quantity thresholds; this is for other material, allowing it to be put on the inventory. LUKE: Is that separate from cleaning the ditches? TILTON: The cleaning of the ditches is a maintenance activity that we don't regulate. DEWOLF: No matter how much comes out? My understanding is that if you remove that material and have it for sale, and it exceeds a threshold of a thousand yards, then it is mining. TILTON: Right. If you sell the material. That's the qualifier. DEWOLF: But this ordinance allows for the sale. Minutes of Deliberations - Irrigation District Ordinances Page 15 of 21 Pages Tuesday, November 20, 2001 ["Mp Let's back up. First thing, before you can sell any of it, more than a thousand yards, you have to put the quality, quantity and location of the material on our comprehensive plan inventory that involves a comprehensive plan amendment. It's a public process. DALY: How long does that take? Oh, three months or so. The second thing you need to do then is file for a conditional use permit. Under today's code, in order to file for a conditional use permit, the applicant and the property owner have to sign the application. Then you go through a conditional use process where you look at everybody within 750 feet of the outside boundary of that property, send them notice, and address a whole series of criteria primarily relating to impacts. So, the mining part of this has a pretty elaborate process, and does require, if you will, owner consent, with our present code. DEWOLF: But once this ordinance is in place, that would change? READ: No. That is what we are proposing. That's what is in front of you. DEWOLF: I remember a question coming up at the haring about what constitutes the area. Is it each individual property owner's area, or is the canal in its entire length the area? READ: The intent of this ordinance would allow the canal to be the entire area. You could look at one permit to handle the whole reach of the canal. DEWOLF: Then, one property owner along the canal who says, "forget you" can stop the entire process? Minutes of Deliberations - Irrigation District Ordinances Page 16 of 21 Pages Tuesday, November 20, 2001 READ: This is new. This is something that we hadn't looked at. This came out of some of the testimony, because the answer under our current code is yes. We weren't proposing to change that the property owner has to be a party on the application. There is no application required if it is under a thousand yards, so that goes back to whether it is allowed under the terms of the easement. DALY: So, if you have a canal or ditch that's fifty miles long and they start cleaning it, if they get to a point of a thousand yards, they have to quit? LUKE: Within a year. DALY: They can't clean the rest of the ditch then? READ: First of all, all these canals existed before zoning, so anything they have historically done is legal and we're not talking about that. How all this came up is complaints because irrigation districts have begun to sell the material where they historically haven't done so. That's where it starts crossing the line into what is a surface mine. That's why we're here, to define what that is and to provide a place in between for this. That's what we're trying to solve. DALY: I understand that. I just don't want to be in a position to ruin what has been done historically regarding irrigation canal maintenance. They need to be able to clean their canals without all kinds of process and government regulations. It's always been a part of what they do. I hope we can get over that hurdle and allow the irrigation companies to do what they normally do and have been doing for years. I'd like to see this worked out between the parties without extra undue government regulation. DEWOLF: Historically they haven't sold material. That's where they come into conflict with the regulations. What you are talking about is something that they are doing new, or are proposing to do. That's not historic. Minutes of Deliberations - Irrigation District Ordinances Page 17 of 21 Pages Tuesday, November 20, 2001 DALY: I don't know that this is true. Historically, this is not a new thing. I don't think that most irrigation districts have a lot of material left over to sell anyway. Squaw Creek might be a bit different since they have recently dug a big reservoir, and ended up with a lot of extra material. They are the only ones who have identified any resources, isn't that right? READ: That's correct. DALY: So the other irrigation districts' only concern is primarily with clearing their canals. LUKE: I'm still not clear on something. Under the proposed ordinance, if a canal company wants to expand or make deeper a canal, that's different than repair and maintenance. Then they take out material that has come in to the canal. Let's say that under the maintenance they found a great gravel deposit in that canal, and they want to make it a little wider to mine that. Does that require a different process? READ: It would require that they amend the comprehensive plan and put that resource on the plan. It is different. DALY: Typically they wouldn't do that anyway, as it would destroy the integrity of their canal. Most of the scenarios that we're talking about probably wouldn't happen. DEWOLF: And if they pipe everything, there's no excavation to do anyway, once it's done. READ: If piping is to occur, or if lining is to occur, additional excavation may be necessary in the canals. This would allow them to go through a process, if they wanted to sell the material, without going through a rezoning process. To say that it isn't related to this issue is a little of a misnomer. It could be related. Minutes of Deliberations - Irrigation District Ordinances Page 18 of 21 Pages Tuesday, November 20, 2001 DALY: There has been testimony in some of the letters that allowing them to sell this produce competes unnecessarily with the small aggregate companies that sell product. I know we got a letter from the Oregon Concrete and Aggregate Producers Association that indicated they'd be in favor of a limit. DEWOLF: The districts have already agreed to that. DALY: My point is that I don't think we need to get into that issue, either. I don't think we have the right to control what they sell it for and whom they sell it to. Am I right? DEWOLF: You're right that you have that opinion. LUKE: We have the ability to put on an extraction tax on what comes out of the ground; a lot of counties do that. DALY: My point is, I'd like to see the irrigation companies put large quantities for sale for somebody to buy the whole pile. That might be the best thing for them to do. Whether they do it or not, I don't think that's something we need to regulate. Legal counsel did do some review of that issue. CRAGHEAD: I don't believe that we don't do that sort of regulation of any other government entity, because if they are a government entity they are under the public contracting rule anyway. We generally do not make that kind of requirement of how they are going to sell the material. DEWOLF: But if they agree, and we agree ... everybody's happy. It seems to me that we have a couple of questions here. Do the two of you want to move forward today? If there are a few people who would be willing to give us copies of their easement with the irrigation district, that would be great. And if you were willing to share what future piping plans might be in relation to private property, we'd appreciate it. Those are my questions. Minutes of Deliberations - Irrigation District Ordinances Page 19 of 21 Pages Tuesday, November 20, 2001 DALY: I guess I'm a little bit confused on why we need copies of the easements. What are we going to do with those? DEWOLF: My interest is in understanding what they say. I have no idea. We're talking about potentially having an impact on these easements. I don't know if we do or not. But without the evidence to look at, I can't know. LUKE: I don't know, either. DALY: There may be a separate easement with different language on every property. LUKE: If we get a sampling, that would help. We're not asking for every single one of them. CRAGHEAD: You also want from the irrigation districts a written summary of their piping plans, if any. DEWOLF: Where are we at for timing? LUKE: Perhaps another meeting toward the middle of December, would that work for you? CRAGHEAD: That would work, if the information comes in quickly enough. DEWOLF: Are there any goal five issues that we need to resolve before we make a decision? I'm kind of unclear on that. READ: Yes. DEWOLF: Will this give you enough time to resolve those as well? READ: Yes, they are relatively simple. Minutes of Deliberations - Irrigation District Ordinances Page 20 of 21 Pages Tuesday, November 20, 2001 LUKE: For those writing this story, there is nothing in this ordinance that says the irrigation companies can pipe. All it talks about is who will issue the permit when they make the application. I hope that comes through, because the letters we are getting indicate that if we pass this, they can pipe the whole thing. That's not true. READ: We need to set a date certain. DEWOLF: How about Monday, December 10, at our regular work session meeting, 10 a.m.? (All parties agreed to this timing.) Being no further items brought before the Board, Chair Tom De Wolf adjourned the meeting at 11: OS a.m. DATED this 201h Day of November 2001 for the Deschutes County Board of Commissioners. l Tom DeWolf, r ennis R. Luke, Commissioner ATTEST: Michael M. Daly,f ommissioner Recording Secretary Minutes of Deliberations - Irrigation District Ordinances Page 21 of 21 Pages Tuesday, November 20, 2001