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48-33-Resolution No. 83-031 Recorded 7/7/1983v� 48 FACE 33 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON A Resolution Declaring Deschutes County's Policy Regarding Hydro Projects on the Deschutes River, and * a!< Adopting a Plan For Implemen- tation of the Policy. * `0_ 11983 RESOLUTION NO. 83-O-AARY SUE 1INVOLLOW, CO. CLERK WHEREAS, Statewide Planning Goal 5 requires the users of land within the State "[t]o conserve open space and protect natural and scenic resources", by developing "[p]rograms that will: (1) insure open space, (2) protect scenic and historic areas and natural resources for future generations, and (3) promote healthy and vis- ually attractive environments in harmony with the natural land- scape character . . . ." Statewide Planning Goal 5 further pro- vides that, "[w]here conflicting uses have been identified the economic, social, environmental and energy consequences of the conflicting uses shall be determined and programs developed to achieve the goal"; and WHEREAS, the Deschutes County Year 2000 Comprehensive Plan and Bend Area General Plan (Plans), portions of which are set forth in Appendix "A" and "B", identify uses for the Deschutes River, its tributaries, diversions, adjacent areas, and stream flows, all of which are hereinafter referred to as the "Deschutes River", which are intended to implement Statewide Planning Goal 5; and WHEREAS, hydroelectric projects on or adjacent to the Deschutes River, or which divert water from the Deschutes River, conflict with the Plans and no program has been developed by Deschutes County to achieve Statewide Planning Goal 5; and WHEREAS, the Plans provide that tourism and recreation are critically important components of the local economy. The econ- omic elements of the Plans make it imperative that the Deschutes River be preserved as a resource to be utilized by tourists; and WHEREAS, a number of Federal acts and actions have been promulgated which may impact the Deschutes River, such as the Northwest Conservation and Electric Power Plan (Power Plan) developed pursuant to the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act) as adopted by the Northwest Power Planning Council (Power Council), the Columbia River Basin Fish and Wildlife Program (Fish Plan) as adopted by the Power Council, the Public Utilities Regulatory Policy Act 1 - RESOLUTION NO. 83-031 von 48 34 (PURPA), and the U. S. Forest Services Deschutes Forest Plan (Forest Plan); and WHEREAS, it is in the public interest to minimize increases in electric power costs; and WHEREAS, the Northwest Power Act and PURPA use different standards to determine the cost-effectiveness of renewable resource electric generating facilities; and WHEREAS, Deschutes County acknowledges that the Power Council is the primary electric energy planning body in the Northwest, and that local government energy actions are to be consistent with the Power Council's Power Plan and Fish Plan; and WHEREAS, the Forest Plan designates segments of the Deschutes River as a recreational area and proposes its inclusion under the Wild and Scenic Rivers Act; and WHEREAS, a number of applications for hydroelectric gener- ating facilities and diversions have been filed for the Deschutes River; and WHEREAS, the Fish Plan and Power Plan adopted by the Power Council identify serious potential cumulative impacts from hydro- electric generating and diversion facilities which cannot be assessed by evaluating projects on a case by case basis; and WHEREAS, the necessary studies, including environmental impact studies, to determine the cumulative impacts of the con- struction and operation of hydroelectric diversion, generating, and transmission facilities on the economic, social, environmental and energy consequences of identified and potential conflicting uses of the Deschutes River which are a condition precedent to the implementation of programs to meet Statewide Planning Goal 5 have not yet been accomplished; and WHEREAS, the Deschutes River, conserved as open space and protected as a natural and scenic resource, is a critically important component to the tourism and recreation industry in Deschutes County; and WHEREAS, hydroelectric generating and diversion facilities impact open space, natural and scenic resources, and recreational opportunities which are among the basic elements of a successful tourist industry; and WHEREAS, the Federal Energy Regulatory Commission (FERC), the Oregon Department of Water Resources (ODWR), and the Energy Facilities Siting Council (EFSC) have a regulatory role in hydro- electric facilities where Deschutes County may intervene in the licensing process to protect the public interest; and 2 - RESOLUTION NO. 83-031 M VOL 48 PAGE 35 WHEREAS, the Federal Power Act (FPA) which created FERC specifically recognizes "state action". The Act provides that FERC's powers shall not be exercised as . . affecting . . . or in any way to interfere with the laws of the respective state relating to the control, appropriation, use, or distribution of water used . . . for municipal or other uses . ", and Section 9(b) of the FPA requires compliance with local laws implementing state action before developing the use, diversion, or appropri- ation of water, water course bed, or watercourse bank. WHEREAS, the Power Plan forecasts that the Bonneville Power Administration's (BPA) four -state service area will not need additional generating capacity from hydroelectric facilities until the mid -19901s; and WHEREAS, the Power Plan states that the Power Council will conduct, during the next two years, a stream -by -stream analysis to rank hydroelectric sites according to their impacts on fish and wildlife; and WHEREAS, the Power Plan states that BPA shall acquire no electrical power at a cost greater than 40 mills per kilowatt hour in 1980 dollars. The cost of power to be generated at several hydroelectric facilities proposed in Deschutes County exceeds this cost-effectiveness standard; now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, as follows: Section 1. That Plans be amended to recognize the conflict of uses of the Deschutes River, its tributaries, diversions, adjacent areas, and stream flows, and provide a program to achieve Statewide Planning Goal 5, and that ordinances be adopted to create a Deschutes River Overlay Zone for the Deschutes River, its tributaries, diversions, adjacent areas, and stream flows, in Deschutes County which implement the Plans, as amended. Section 2. That the Plans be amended so the Plans accurately assess the potential for energy uses on the Deschutes River, its tributaries, diversions, adjacent areas, and stream flows in Deschutes County which may be utilized within the limitations set forth in the Statewide Planning Goals. Section 3. That an ordinance be adopted to declare a Study Period for all hydroelectric projects on the Deschutes River, its tributaries, diversions, adjacent areas, and stream flows, until such time as: the cumulative effects of such projects have been identified; a program be developed to balance the conflicting uses of the natural resource as required by Statewide Planning Goal 5; the Power Council has completed its hydroelectric study; the ap- parent conflict between the provisions of PURPA and the Northwest Power Act has been resolved; the policies and programs to resolve 3 - RESOLUTION NO. 83-031 VOL 48 PACE 36 the conflicting local uses on the Deschutes River, its tribu- taries, diversions, adjacent areas, and stream flows have been adopted. Such ordinance shall provide that no development permits for hydroelectric generating or diversion facilities be issued during the Study Period. Section 4. To pursue the designation of the Deschutes River as a Wild and Scenic River. Section 5. To intervene in all proceedings before the FERC, ODWR, and EFSC for the licensing of hydroelectric developments and diversions in Deschutes County. Section 6. To examine the feasibility of the acquisition of all unappropriated water rights within the Deschutes River and its tributaries for the protection of the scenic and recreational value, and fish and wildlife habitat. Section 7. To petition Oregon Department of Water Resources, together with the Oregon Department of Fish and Wildlife, to establish minimum streamflows for the Deschutes River and its tributaries. DATED this !A'& day of L4-1983. BOAR OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: �74 6� 40 � Recording Secretary 4 - RESOLUTION NO. 83-031 IS7$4KTSTOW PRAN.TE, Commissioner LAUREN A. 1tTTLE1, Commissioner VOL 48 PACE 37 APPENDIX "A" The following are excerpts from pertinent portions of Deschutes River Goals and Policies contained in the Deschutes County Year 2000 Comprehensive Plan, adopted November 1, 1979: WATER RESOURCES "GOAL 1. To maintain existing water supplies at present quality and quantity. ." "POLICIES 3. The County shall conduct a study of the legal, economic and environmental consequences of the use of irrigation water for non-agricultural uses. . . ." (pg. 170) FISH AND WILDLIFE "GOALS 1. To conserve and protect existing fish and wildlife areas. 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. . . ." "POLICIES 4. Because public access to fish and wildlife areas is so important to the economic and livability aspects of Deschutes County, walking easements and periodic boat access points shall be provided in areas where public river access is limited, as determined appropriate by the County and State Department of Fish and Wildlife. 5. Consistent with Policy 4 and in order to protect the sensitive riparian areas, as well as to protect people and property from flood damage, the Zoning Ordinance shall prohibit development (except floating docks) within 100 ft. of the mean high water mark of a perennial or intermittent stream or lake. . . . Variances shall also be possible where 1 - APPENDIX "A" VOL 48 FADE 38 it is shown that the structure is removed from the riparian area because of a high bluff or steep slope. ." (pg. 164) OPEN SPACES, AREAS OF SPECIAL CONCERN AND ENVIRONMENTAL QUALITY "GOAL 2. To maintain and improve the quality of air, water and land resources of Deschutes County. ." "POLICIES 1. A. On lands outside Urban Growth boundaries and rural service centers . . . and along all other streams and roadways for which landscape management is prescribed on the 1990 Comprehensive Plan, a case by case review area shall be established. This area is not to extend more than a quarter mile on either side of the center line of roadways, nor more than 200 ft. from either side of the rivers measured from the mean high water level. Within the prescribed area, new structures (excluding fences, existing structures or other structures less than $1,000.00 in total value), shall be subject to review by the County at the time of application for building or zoning permit. . . . 2. Considerations should be given to designation of appropriate segments of Fall, Deschutes, Little Deschutes and Crooked Rivers as Scenic Waterways. Reasonable protective and State agency coordinative measures should be instituted. . . . 6. Because management of State and Federal lands effects areas under the County's jurisdiction and vice versa, better coordination of land use planning between the County, U.S.F.S., State Land Board, Bureau of Land Management and other agencies shall be sought. . . . 9. Loss of riparian areas and other important open spaces because of dam construction for recreation or other purposes should be minimized." (pg. 153) RECREATION "GOALS 1. To satisfy the recreational needs of the residents of and visitors to Deschutes County." (pg. 117) 2 - APPENDIX "A" ECONOMY "GOALS von 48 PAF 39 2. To enhance and maintain the existing natural resource, com- mercial and industrial segments of the local economy. ." "POLICIES 1. The importance of tourism to the local economy is well known, but there also exists considerable potential for strengthen- ing and improving this segment of the economy. The County shall assist in the development of a long range plan to en- courage tourism (including destination resorts) and recrea- tion locally. This study will include consideration of the impacts likely to be created by increasingly expensive gasoline. 2. Private commercial activities consistent with other County policies which enhance tourism shall be encouraged by the County. . . ." (pg. 87) RURAL DEVELOPMENT "GOAL 1. To preserve and enhance the open spaces rural character scenic values and natural resources of the County. ." (pg. 49) 3 - APPENDIX "A" h APPENDIX B VOL 40 PAGE 40 Bend Area General Plan Pertinent Deschutes River Goals and Policies Open Lands The open land section of the plan deals with three basic types, forests, urban area reserve, and areas of special interest - private and public open space. Areas of Special Interest - Private and Public Open Space 1. The banks and canyon of the Deschutes River shall be retained as public or private open space throughout its entire length within the planning area except in the intensively developed central part of the community. 2. Major rock outcrops, stands of trees or other prominent natural features shall be preserved as a means of retaining the visual character and quality of the community. Outside the Urban Growth Boundary the policies and requirements of the Deschutes County Year 2000 Comprehensive Plan shall apply. Decisions -along the boundary that may impact natural resource lands outside the boundary will be coordinated with the County, and preference will be given to the protection of such adjacent resources through the development review process: Areas of special interest identify lands along the banks of the Deschutes River. These areas are also basic habitat. The following policies and goals shall also apply. Fish and Game The primary goals for the protection of the fish and wildlife habitat within the urban area are: 1. To conserve the existing.riparian zone along the Deschutes River. 2. To provide for public access to this scenic and attractive resource. 3. To provide more park and trails along the river. 4. To allow the community flexibility in reviewing development proposals within the areas of special interest that would award superior design; that grant public access and dedication of land to the public; that grant scenic or develop- ment easements to a public body or recognized conservation organization; and still maintains the scenic resources and protects or enhances the wildlife habi- tat or that can be judged to be a reasonable trade-off in values for the public. Strategies and Policies: 1. The city and county shall preserve areas of the banks and canyons of the Des- chutes River in public or private open space throughout its entire length within the Urban Growth Boundary, except in the intensively developed central part of the city. Areas so preserved will allow residential densities to be higher in the developable portion of the parcel affected. 2. The city and county shall review development proposals that include land in areas designated as areas of special interest for the public benefits that can be gained under preservation or development. The city and county may allow those developments that are not subject to natural hazards; that would not inflict irreversible harm to the riparian zone; that would enhance public open space, parks, and access; that have excellence of design, provide via easement or fee title access for the public to the river, either as park or trails; and carry out the intent of the plan to enhance the variety and liva- bility of the Bend Urban Area. Appendix B Page 2 X06 48 PAG- 41 3. Any development within 100 feet of the water's edge shall be subject to a con- ditional use and design review procedure, taking into account the goals for the areas of special interest and the protection of fish and wildlife habitat. 4. The county and city shall apply the requirements of the deer winter range over- lay zone to any development in the urban reserve area adjacent to or within one mile of the WA designation on the county plan or zoning maps. The Deschutes River represents a significant sensitive area within the Urban Growth Boundary, and the upmost care shall be taken in any development that occurs so that the public is benefitted by any changes that may occur in the existing charac- ter of the river or riparian zone.