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2009-7-Minutes for Meeting June 11,2008 Recorded 1/2/2009DESCHUTES COUNTY OFFICIAL RECORDS CJ 7009'1 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL 111111111loll 111111■11 oil 01/02/2009 08;28;01 AM 2009-7 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [clive reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JUNE 119 2008 Present were Commissioners Dennis R. Luke, Tammy Melton and Michael M. Daly, also present were Dave Kanner, County Administrator, Laurie Craghead, Legal Counsel, Tom Anderson, Barbara Rich, Catherine Morrow, and Todd Cleveland, Community Development; Dan Despotopulos and Roxia Todoroff, Fair & Expo; David Bishop, Fair Board; and approximately forty other citizens, including representatives of the media. Chair Luke opened the meeting at 1: 30 p.m. 1. Discussion of Communication from Fair Board regarding Transient Lodging Tax. David Bishop, a member of the Deschutes County Fair Board, Roxia Todoroff and Dan Despotopulos of the Fair & Expo came before the Board. Mr. Bishop said that during his eight years of service, he has seen great successes at the Fair & Expo Center. One thing of interest to the Fair Board, on which they voted on March 15, is having a measure on the ballot in the fall to increase the room tax to 9%. This would be consistent with the incorporated cities in the county. Roughly, $1 million could be raised if this is done, which could help offset costs of operation of the Fair & Expo Center. He wants to see the Fair & Expo Center to be kept up to date and competitive. The commercial buildings need an account set aside for upkeep, replacements and emergencies. They turned the facility around; it is not profitable but is making great strides. It is now a ten-year old facility that cost $30 million at the time. Those costs would be much higher today. In regard to reserve financing, 2-6% is typical, or about $600,000 a year. There should be $6 million or more set aside by now. 70% of the additional million would have to be used to promote tourism. There is no other County-owned asset that does this. Minutes of Administrative Work Session Monday, June 11, 2008 Page 1 of 12 Pages All Fair & Expo events impact Deschutes County by putting heads in beds. He asked the Board to consider putting this increase on the ballot, and asked that 50% of those contributions be put into operations for the Fair & Expo. This is the only relatively stable source of funding. The County would then not have to contribute to the Fair & Expo. The additional 30% could be used for roads, public safety or other uses. Commissioner Melton clarified that of the 2% additional, 50% of the 70% would be allocated to the Fair & Expo. Mr. Despotopulos said that he considers it a tourist destination, and has documentation to back that up. Mr. Bishop stated that for the most part it does not directly impact County taxpayers. And most visitors do not change their plans because the room tax is the same as Bend or Redmond. Ms. Todoroff added that 56% of Fair business is tourist related, and 37% is from out of the area. Mr. Bishop said that it is difficult for volunteers on the Fair Board to keep coming to the Board on this issue; they would like to get some kind of commitment as soon as possible. They should let the voters decide. Commissioner Luke noted that COVA and the destination resorts would want some of the money as well. No hearing is legally required to put this on the ballot, but he wants to ask the other groups for input as well. 2. Discussion of an Ordinance and Resolution relating to Onsite Wastewater Treatment Systems in South Deschutes County. Commissioner Luke said he invited incumbent elected officials and their opponents to attend the meeting; only Representative Gene Whisnant came forward. Dave Kanner reviewed a number of items regarding Chapter 13, Local Rule. Some of the language has been clarified, and made amenable to letting people do whatever they want as long as it ultimately fulfills the requirements. Also discussed was language about changes of ownership and how lending institutions would view the requirements. Minutes of Administrative Work Session Monday, June 11, 2008 Page 2 of 12 Pages Commissioner Luke asked if local improvement districts were investigated. Mr. Kanner replied that those have to be used for public infrastructure. Representative Whisnant asked for clarification about pollution and groundwater level determinations. A discussion took place regarding high groundwater lots and onsite evaluation. Barbara Rich said that the language applies to lots that are hard to define in this regard. Most of it mirrors DEQ language and requirements. Ms. Rich added that the language targets southern Deschutes County because the high groundwater problem is not typically encountered in other parts of the County. It is easier to identify in other areas. Groundwater monitoring takes place almost exclusively in southern Deschutes County. Commissioner Melton asked if a lot in Tumalo needed a new septic, would it be examined. Ms. Rich said that there are some issues in just a few places, around Sisters and Tumalo, but they do not have the resources to study those small areas. Each location is tested through the normal process. Most of the newer systems are going in northern Deschutes County and they have found them to be a more economical fit. Commissioner Luke stated that the option for southern County is positive for the property owners. Doing further testing is a way to try to help the landowner know if they can build. He asked if the ordinance would apply to other areas of the County. Ms. Rich replied that it is specific to southern County, but it could be amended so it is applicable to other areas. Commissioner Luke noted that not many properties run into this situation other than those next to the river. Commissioner Daly said that in his previous work, he did hundreds of test holes. The ordinance should be applicable elsewhere although there won't be many. In Terrebonne, you hit rock. They are using these systems now because of the rock. Tom Anderson said that in terms of the broader question, the geology is unique in south County. The magnitude of the application of the rule would affect many more people. It may be appropriate to look at very small areas, but this is exponentially larger. Minutes of Administrative Work Session Monday, June 11, 2008 Page 3 of 12 Pages He suggested as staff that if the Board is waiting to study other areas, this is not the best way to proceed. They have a prescription, with all of the experts involved, which makes the most sense without precluding other small areas. He recommended the Board not inhibit what is the right solution for one area. It could take years to have to involve the experts in other fairly small areas. Commissioner Daly agreed that it is not a big problem in other areas, and there are not many rural subdivisions that have this problem. Commissioner Luke added that under DEQ site evaluations, if there is high water, you do more evaluation. If you dig a test hole in most other places, you won't have water in the hole. Ms. Rich stated that markers in the soil show how high the water comes, and it is very easy to tell. Dan Haldeman, Environmental Health Director, said that it may be hard to tell in rapidly draining soil. The water table in southern County fluctuates to a great extent. The DEQ rules say that observations should be made in the wettest part of the year. Representative Whisnant asked how a house got approved in southern Deschutes County that is now under water. Mr. Haldeman replied this is located on River View Road. It was approved through a variance with DEQ, not with the County. They approved a sand filter system by the road. Commissioner Luke added that in the past DEQ changed the rules on groundwater and septic tanks. Just before they did that, a lot of tanks were installed and if there was no water in them, they popped out of the ground. If this property was approved by the DEQ, it means the County had already turned it down. Mr. Kanner said the Ordinance would begin in November 2012; this would allow four years for people to explore sewer districts, with two chances to put it on the ballot - in 2010 and 2012. A change of ownership provision would not require them to join the sewer district. Also, if a property has taken other approved nitrate reduction measures, they would not be subject to this. He added that a red lot could not be helped by any on-site system. Minutes of Administrative Work Session Monday, June 11, 2008 Page 4 of 12 Pages Mr. Anderson said that variable treatment standards are required. The USGS model allows for a lesser degree of nitrate reduction in some areas, unless they are near the river, which requires a higher degree of protection. This affects the cost of the system required for the location. The map shows what areas require which kind. Representative Whisnant said that people are upset at the USGS study. The map shows year 2040, based on development that may never occur. He asked if this is the standard. Mr. Kanner stated that the resolution does say that the Board adopts the model as the basis. Minimum performance standards are to be at least a 35% reduction. In some areas, this is sufficient, but other areas may require more. That is how they determine what is required in the way of systems. Commissioner Melton said that they are limited on what can be installed due to DEQ approving the systems. At some point, perhaps a more middle of the road system will be available. The County does not get to determine what gets on the list or when. Representative Whisnant asked for clarification regarding changes of ownership. Commissioner Luke said it was okay to transfer property to a trust but not to an individual. Ms. Craghead noted that when a property goes into a trust, it goes into the name of the trustee on behalf of the beneficiaries. In regard to a will, it transfers from the estate to whoever is noted in the will, which is a conveyance of title. Mr. Kanner added that a property line adjustment should not trigger the requirement. Mr. Kanner stated that if there is snow on the ground, there could be a provision in lieu of a holdback in escrow, and the buyer would sign a compliance agreement. This provides some mechanism to make sure the work gets done. Mr. Anderson said the purpose of the additional four years up front is to allow time for people and groups to explore sewer systems. Representative Whisnant said he has several problems with the DEQ. Minutes of Administrative Work Session Monday, June 11, 2008 Page 5 of 12 Pages Mr. Kanner stated that language would be included that the system must meet nitrate reduction criteria. The Financial Assistance Committee reviewed it and said it was too vague, so it was rewritten, but they now decline to review it again. In regard to hardship situations, some people may be eligible for financing through NeighborImpact. That money is available now to help people comply with Code. There would be maintenance fees paid to a private party. A service contract is required for regular monitoring. Once a year the monitoring report would come to the County. The cost of this is handled by the property owner and the provider. Commissioner Melton added that there is a cost to belong to a sewer system as well. In regard to the cost of systems, Ms. Rich said that she took out the cost of the initial warranty and maintenance fees so a direct comparison can be done. The base charge used to be $3,500, not including adding rock and other material, and the cost is now lower. Commissioner Luke added that they also could get the rebate from Russell. An audience member said that they are building a moratorium in the area. Mr. Anderson replied that is only on commercial, due to traffic issues. Representative Whisnant read a statement at this time. A question was asked if a property is in litigation, could a sale proceed. Ms. Craghead stated that she would advise people to seek their own legal counsel, but in general, unless there is a court injunction, the regulations will be in effect during litigation. Commissioner Luke asked if the courts could make a decision in place of local government. Ms. Craghead replied that they would have to show that the County didn't do its part first. The courts won't substitute judgment. Minutes of Administrative Work Session Monday, June 11, 2008 Page 6 of 12 Pages Barbara Downey of La Pine said that there are all types of systems, some proven and some not, and others might come on line if perhaps another state has approved them. Yet the County says the ground is so different from other areas, how can a system from Minnesota work here. Ms. Rich replied that part of the purpose of the La Pine National Demonstration Project was to compare systems from all over the world. They had one from Minnesota, and others from Florida, Kansas, Canada and Germany. A lot of them performed well. Commissioner Luke said that the USGS made a point that this is not unique to Oregon or other places. Lake Tahoe had a Supreme Court decision regarding TDC's. Ms. Rich agreed that groundwater pollution problems are not unique. There are other national projects in almost every state regarding impacts of systems. Diane Shufelberger said at the first meeting at the Senior Center that this is tax dollars coming back to the community. Through the years, the County has been reluctant to have anyone else do testing. The County is paid by the government to do government work. They would like an outside, unbiased opinion, and want to know why it is just southern Deschutes County. Ms. Rich said that they never said they are not willing to have a third party involved. They have said that they have done all of the work required by Oregon DEQ, the USGS and the County. They don't have the funds to duplicate testing. If someone knows a reliable source, they will help apply, but there are very few federal sources for this kind of money. Bob Sweeney of River Forest Acres asked why the County couldn't go after violators instead of clumps of properties in a given location. He had his water tested and it was fine, and it is only fair to have everyone test. It is wrong for him to have to shell out money for this. Mr. Anderson said that in all due respect, everyone who doesn't have an ATT system is a violator. That is the toughest thing to explain. Nitrates are coming from every system in southern County, and slowly moves through the aquifer. The vast majority are okay now. The intent is to be proactive and to get ahead of the cumulative pollution before it hits wells and the rivers. It is a tough concept but that is the reason why new construction and upgrades are necessary, to protect everyone's water in the long term. Minutes of Administrative Work Session Monday, June 11, 2008 Page 7 of 12 Pages Wanda Van Natta of La Pine said in the beginning a committee was appointed to research this issue. The committee said they didn't think this process was necessary and there was no problem. Why did no one listen to them. It was the technical advisory committee. Mr. Anderson replied that this was not the recommendation of the TAC. There were 14 or more members. Not all of them agreed. The mission of the TAC per County Code was to look at a specific aspect, much like the financial advisory committee. They were to develop the TDC program and pollution reduction program. Their recommendation was the new PRC Code, vote on in 2006 or 2007. An unidentified man from Deschutes River Recreation Homesites asked about composting toilets. Commissioner Luke replied that he should speak to staff about that question, as it is too specific for today's conversation. Taren Lake of Oregon Water Wonderland said she can't get a definitive answer on anything, and has been to Planning many times. She is trying to develop and sell several properties and can't answer buyers' questions. Commissioner Luke advised her to talk with staff, and if she has problems, to e-mail him. Commissioner Melton said that the CDD work plan calls for looking at high water lots next year. There are no answers for those areas right now. Commissioner Luke added that the DEQ has made putting in sewers easier, but this can't just benefit red lots; it has to benefit all of the lots. Mr. Anderson noted that in Deschutes River Recreation Homesites, it is not one size fits all; some are wetlands, some are high water and some aren't. Local Rule suggests more options for people who own land there. Other variables are available through sewers. The DEQ would like to see more sewers if possible. Staff is happy to talk about specific properties. Commissioner Luke said that in regard to the reintroduction of steelhead, the County does not know what effect this will have there. It's been an ongoing issue for a long time. Minutes of Administrative Work Session Monday, June 11, 2008 Page 8 of 12 Pages Mike Neary said that a lot of people have suggested alternatives to Local Rule, but they never get any feedback. It is useful to involve the people and answer their questions. Someone may have a dumb idea, but it would be good to know why. Instead of imposing a rule that applies to all, go to the specific areas to be fixed first. Fix the old systems first. No effort is made to correct those. Why not start there? And the model has never been validated. Mr. Anderson said that nitrates are coming from all systems. Certainly from the old systems, but also the newer ones. They have been trying to get the old steel tanks changed out. He understands that over the years about 2/3 of those have already been changed out. There may be 300 to 500 left. To truly protect the water in the long term, more has to be done than that. Sandra Neary thanked Ms. Rich for the quotes. She asked if the figures for a complete new tank include the removal of the existing tank. Ms. Rich said this usually costs about $200 to $400, including squashing and burying, or filling. The drainfield is left in place, allowed to rest and recover, and it will be the backup system in the future. Commissioner Luke added that there are a lot of systems within the city limits of Bend where there is a valve and they switch from one system to another. Commissioner Daly said that if this is an upgrade, the new one may go where the old one is, and the price often includes the removal. The piping and hole are already there. Bill Gaetano of Deschutes River Recreation Homesites asked for factual data regarding the percentage of steel tanks and concrete tanks. He also asked how golf courses are being monitored regarding nitrates. Ms. Rich stated that it is 65 ml per liter no matter what kind of tank is there, even with leakage. It is a State function to monitor golf courses. Fish & Wildlife may have some requirements if the golf course is near a river. Jerry Criss of Ponderosa Pines asked if a change in property ownership is subject to moratorium. Mr. Kanner replied that the general idea was to start effecting some upgrades immediately. If it is just put out there, it becomes more difficult to monitor whether it is happening. This helps to insure that it does happen. Minutes of Administrative Work Session Monday, June 11, 2008 Page 9 of 12 Pages Vicky Jackson of Coldwell Banker Realtors asked why they would flag lots now. Realtors have to disclose, but so do sellers. She said she is the sole provider for her family and whether the cost is $20,000 or $40,000 or more, she can't afford it. Commissioner Luke said that there is a lot more they will do on this. They do not want to create an undue hardship. Martha Bauman of Pinecrest Neighborhood and a concerned citizen, asked if an area is feasible and available for sewer, will the County help to bypass Goal 11 to get there. Commissioner Melton said the County will assist. Mr. Anderson stated that they have already assisted two different neighborhoods with the process. There is no magic wand, but they try to help with the process in partnership with the DEQ and DLCD. They have already done work in what can be done to streamline land use approvals. They are looking at the comprehensive plan and other rules to give this a jump start. Joe Duncan said that testing will cost $7,000 and he doesn't have it. Ms. Rich stated that she is not sure where the $7,000 figure came from. It is $30 per water test, so for 6,000 households it would be $180,000. Mr. Anderson stated that comments can be submitted to Community Development. If comments go to Dave Kanner or the Board, they send a copy to CDD. Bill Gaetano asked how DEQ obtained the real estate data regarding the number of wells sampled and those showing contamination. Ms. Rich said that this information is submitted to the Oregon Department of Human Services, and DEQ stores the data. That's where it came from. Mr. Gaetano said that labs were contacted regarding well tests done by Realtors and they show contamination of less than I%. The State said they could not provide the information, which is stored in boxes and they don't have the budget to go through them. This says that the DEQ and whoever receives the printed information are not working hand in hand to gather this data. So the data is not right. Commissioner Luke said that Representative Whisnant can check with the DEQ on this issue. Minutes of Administrative Work Session Monday, June 11, 2008 Page 10 of 12 Pages Commissioner Luke stated he wanted clarification regarding the property ownership change aspect, and also a review of the questions submitted by Representative Whisnant. Commissioner Daly indicated that the time of sale issue needs to be fleshed out, but it needs to be in there. A sale will capture a lot of them. Over ten years this could cover most. Otherwise, people will sit back and do nothing. Their wells are fine now, but if something is not done, this might not be the case later on. Commissioner Melton said that she is concerned regarding changes of ownership. It is also a major financial issue. This happened with the LP siding issue and adding water meters in Bend. People don't need additional hurdles when selling their property. Another concern is sewering. She prefers the time of sale start in five years after the sewer aspect has been checked out. And maybe an incentive during those first few years if the potential for sewer is low. She would like the County to take a leadership role in the high groundwater areas in the County. She knows there aren't many but they should reduce the problem wherever possible. She would like to enhance the language to spell out more in regard to variances and hardships. Ms. Morrow stated that all strategies regarding rebates and incentives should be considered. That is where the advisory committee, staff, Realtors and others can come together. Representative Whisnant said he remains opposed to making everyone change these out. Maybe staff should stop the clock if someone is looking at a new sewer system. Commissioner Luke said that it takes more than that. They have to show progress towards working on it. Mr. Kanner stated that the whole idea behind the four-year delay is to get the ball rolling during that time; it may take longer, but at least it would be in process. Commissioner Luke added that DEQ has to approve sewer districts and their cooperation is needed. Commissioner Melton stated that the market has an impact. No one knows who will be here later on. A lot is unknown as it is too far out. But they want to get there together. Commissioner Luke said that it is a work in progress and they are open to change if it is appropriate. He wants to see a framework so they can get started. Minutes of Administrative Work Session Monday, June 11, 2008 Page 11 of 12 Pages 3. Other Items. None were discussed. Being no further items before the Board, the meeting adjourned at 4:45 p.m. Commissioners. ATTEST: Recording Secretary v"-- Dennis R. Luke, Cha it Minutes of Administrative Work Session Page 12 of 12 Pages DATED this l lth Day of June 2008 for the Deschutes County Board of Monday, June 11, 2008 Tammy (Baney) MWon, Vice Chair .~9= c Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 P.M., WEDNESDAY, JUNE 11, 2008 •A 1. Discussion of Communication from Fair Board regarding Transient Lodging Tax - David Bishop 2. Discussion of an Ordinance and Resolution relating to Onsite Wastewater Treatment Systems in South Deschutes County 3. Other Items PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), pending or threatened litigation; or ORS 192.660(2) (b), personnel issues Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at 7300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572. Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: e~ L G, A-6' v-6 Mailing Address: ?6~N. f,/)x '9 70 Phone k E-mail Address: Date: Subject: IF YOU WISH TO TESTIFY Please complete this card & turn it in 7t a County staff person. Name: /V7/ / Ma' ingAddress: am' Phone E-mail Address: levzL oa/ w~ 2 Date: Subject: ,I/am F YOU WISH TO TESTIFY IF YOU WISH TO TESTIFY Please complete this card & turn it in to a my staff person. Name: o - 11.1-&A,,~) Mailing Address: /o, Lax L4 P 4J6, a~ 977 ,~2 Phone ,~411 S'~~ 16 9 E-mail Address: Date: Subject: 4. IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: I N. --4LI&(I-v LjAaLOe:~) Mailing Address: J 73 ~Z& /A/ (~r- Phone Z4. E-mail Addr ss: Mc'eslb)e~ sr~~ Date: . c Subject:/ tit, IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: Jrxx~ J cQec Mailing Address:.sz®-;6 AL)rr_ 64a A-A- ae . 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N a m e: `TAyu t~ LjA V--e' Mailing Address: y • G.~6 Phone !5;,-A 1 610 - 3~ 8 E-mail AddressT. c,,r-e,,4_. LIC36~~ Date: 1 t /0~ Subject: Qom _ IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: c yt,_ c1 Mailing Address: (-o. Phone s-q i - 6 t c~ - g y E-mail Address: {J Date: t,l S u b j ect ,,;,~,,p-~ ow~-- IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: R©'~ o~U)c"6A/ (S ~ Maili Address: 5~?Jl9 aAR\ )(R 7797 Phone X13 c~ E-mail Address: 6550e-04) , CV,, Date: D Subject: Lx L6 IF YOU WISH TO TESTIFY Please complete this card & turn it in to a Coun y staff person. Mailin Address: jr-e 15,-1- _~z3~_x Phone E-mail Address: ~u, P.o~lD Date: to /o - R" '7 v Subject: j,,,' GENE WHISNANT State Representative DISTRICT 53 HOUSE OF REPRESENTATIVES 900 COURT ST NE SALEM, OREGON 97301 Deschutes County Board of County Commissioners 1300 NW Wall Street, Suite 200 Bend, Oregon 97701 June 11, 2008 Reference: Draft South County Onsite Wastewater Treatment "Local Rule" meeting Dear Commissioners Daly, Luke, and Melton: I advised you in a May 21, 2008 letter that I opposed. the "local rule" draft which required all septic systems in South Deschutes County to be replaced within 10 years. I remain opposed to the new "local rule" in Chapter 13.14 which state "all Existing Development served by Onsite Systems shall be upgraded with nitrogen reducing systems in accordance with DDC.14.14.50 C and D no later than November 15, 2022." I support a comprehensive plan to address this issue in South Deschutes County. I do not believe .allowing bad systems to remain in operation until November 15, 2022 is addressing a potential public health issue. However, if we do not have to replace or upgrade an existing bad system until November 15, 2022; maybe we do not have a public health issue. Your establishment of the Citizens Financial Advisory Committee is an excellent example of effective leadership to help solve this problem. I urge you as our local leaders to allow the committee to continue its work to evaluate what is the best way to address this issue economically, environmentally, and fairly for our citizens and county. Please allow the citizens committee to further study this issue and present to you in coordination with County Staff a comprehensive groundwater protection plan which reconsiders expanding and/or new sewer systems in South Deschutes County. The County stated in its 2005 US Environmental Protection Agency grant application "Deschutes County, to successfully implement (a groundwater protection plan), must first obtain broad support from La Pine area residents, state agencies, and elected officials." I concur that this is the road map to an effective plan. Respectfully, AV 44Z~~~~ Gene Whisnant Cc: Joni Hammond, Oregon DEQ Office: 900 Court St NE H-277, Salem, OR 97301 - Phone: 503-986-1453 - rep.genewhisnant@state.or.us District: P.O. Box 3565, Sunriver, OR 97707 - Phone: 541-598-7560 - www.leg.state.or.us/whisnant/home 4 JUNE 2008 QUOTES FROM INSTALLERS ON POSSIBLE RETROFIT COSTS** TYPE OF DENITRIFYING TECHNOLOGY DENITRIFYING TECHNOLOGY DENITRIFYING TECHNOLOGY INSTALLATION USING EXISTING TANK AND NEEDING TANK AND NEEDING NEW SAND FILTER DRAINFIELD OR EXISTING DRAINFIELD AND TANK SAND FILTER Multi-Flo* Installer $8,828 $10,758 $13,631 AX-20* Installer #1 $10,200 $12,200 $15,200 AX-20* Installer #2 $9,200 $11,200 $12,200 *These two systems currently meet all performance standards. **Retrofits are eligible for the PRC program. Pahlisch Homes is currently offer a $3,750 rebate for retrofits. JUNE 2008 QUOTES FROM INSTALLERS ON NEW SYSTEMS TYPE OF DENITRIFYING TECHNOLOGY DENITRIFYING TECHNOLOGY INSTALLATION TO DRAINFIELD TO SAND FILTER Multi-Flo Installer $10,700 $16,595 AX-20 Installer #1 $12,200 $17,200 JUNE 2008 QUOTES FROM INSTALLERS ON NEW SYSTEMS CONVENTIONAL STANDARD BOTTOMLESS SYSTEMS SAND FILTER Installer #3 $3,500 $10,000 Installer #4 $4,500 $12,000 T I Department of Administrative Services i_A Dave Kanner, County Administrator 1300 NW Wall St, Suite 200, Bend, OR 97701-1960 (541) 388-6670 - Fax (541) 385-3202 www. co. deschutes. on us June 4, 2008 TO: Board of Commissioners FROM: Dave Kanner RE: Revised Chapter 13 and implementing ordinance Attached is the revised code language and implementing ordinance for the South County groundwater protection program. Staff will review this with you at the June 11 work session. The major changes are as follows: • Sec. 050(F) on page 3 starts the clock running for upgrades other than those at time of property sale on November 15, 2012. • Sec. 060 is all new language. It requires an upgrade or some other nitrate reduction measure at the time of change of property ownership. There are a couple of fairly significant issues the Board must decide here. These include whether this provision shall apply to a change of ownership to a living trust or from a trust to a beneficiary, and whether it applies to the County in the event of a tax foreclosure or to a bank in the event of a mortgage foreclosure. • Sec. 080 is the revised alternatives language. We provided this section (only this section) to the FAC at their last meeting for their comments. They again declined to comment because they want to see the entire code chapter. • Sec. 090, Variances, has been expanded and is more detailed. Again, staff will review this with you in detail at the June 11 work session, but I wanted you to have the opportunity to review this in advance. Enhancing the Lives of Citizens by Delivering Quality Services in a Cost-Effective Manner Page 1 of 1 Tom Anderson From: Bill Robie [Bill@COAR.com] Sent: Wednesday, June 11, 2008 11:56 AM To: Dennis Luke Cc: Tom Anderson Subject: Local rule Dennis, Please share this with the other commissioners today. I've been called in for jury duty and will be unable to attend today's work session on Ordinance 2008-012. COAR's Government Affairs Committee discussed the issue yesterday. We are opposed to the point of sale mandate and have concerns about other provisions in the amendment to county code Chapter 13.14. We hope the county is able to fashion an incentive-based program that will expedite the installation of nitrogen-reducing septic systems and assist property owners by mitigating the tremendous expense of this regulation. We are concerned that a rigid and punitive program will devastate the real estate market in the south county and result in significant housing devaluation for people who have little else for tangible assets. I will flesh this out in more detail as soon as I can. We appreciate the notice and opportunity to comment on this issue extended by Tom Anderson and Dave Kanner. Bill Robie Government Affairs Director Central Oregon Association of REALTORS@ 2112 NE 4th St. Bend, OR 97701 541-585-2066 (ph.) 541-848-8267 (cell) 541-585-1005 (fax) bill(@coar.com 6/11/2008 tom' Chapter 13.14. SOUTH COUNTY ONSITE WASTEWATER TREATMENT 13.14.010. Application. 13.14.020. Definitions. 13.14.030. Siting Criteria for New Development. 13.14.040. Groundwater Level Determinations. 13.14.100. Appeals. 13.14.110. Fees. 13.14.120. Violation. 13.14.050. Performance Standards. 13.14.060. Upgrades at Change of Property Ownership. 13.14.070. Listing Nitrogen Reducing Systems. 13.14.080. Approval of Other Groundwater Protection Wastewater Treatment Systems. 13.14.090 Variances. 13.14.010. Application. N A. The provisions in DCC Chapter 13.14 are in addition to the requirements of ORS 454.605 to 454.755 and OAR chapter 340, divisions 071 and 073 and, in the evcnt of an inconsistency, the more stringent provisions shall apply. B. The provisions in DCC Chapter 13.14 apply only to those wastewater treatment systems that treat flows of residential strength wastewater, as defined in OAR 340-071, of 2,56012 allons per day or less. (Ord. 2008-012 §1, 2008) 13.14.020. Definitions. "Department" means. for purposes of this chapter, the Deschutes County Community Development Department. " "Existing Development" means rises in South County on a Lot served by an Onsite System that does not meet the performance standards coutaincd in D(_V 13.14.050(E) as of the effective date of Ordinance 2008-012. "Lot" means lot or parcel as defined in 016 chapter 92. Tax lots may or may not be equivalent to legal Lots of record. "Maximum Nitrogen Reducing System" means the Onsite System or Systems allowed for use by ODEQ and listed by the Department at the time the permit is issued as having demonstrated the highest level of nitrogen reduction of the Onsite Systems listed pursuant to DCC 13.14.070. "New Development" means the establishment of a use on a Lot in South County where there is no existing use served by an Onsite System as of the effective date of Ordinance 2008-012. "Nitrate Loading Management Model" means the model produced by the US Geological Survey ("USGS") that specifies the performance standards that must be met by Onsite Systems in order to meet groundwater protection goals. "ODEQ" means the Oregon Department of Environmental Quality. "Onsite System" means onsite wastewater treatment system as defined in OAR 340, division 71. "Sewer System" means a system as defined in OAR chapter 660, division 11 that serves more than one Lot or parcel, or more than one condominium unit or more than one unit within a planned unit Chapter 13.14 (XX/2008) development, and includes pipelines or conduits, pump stations, force mains, and all other structures, devices, appurtenances and facilities used for treating or disposing of sewage or for collecting or conducting sewage to an ultimate point for treatment and disposal. The following are not considered a Sewer System for the purpose of this code: A. A system provided solely for the collection, transfer and/or disposal of storm water runoff; or B. A system provided solely for the collection, transfer and/or disposal of animal waste from a farm use as defined in ORS 215.203. "South County" means those unincorporated portions of Deschutes County contained in Townships 19, 20, 21, 22 and Ranges 9, 10, and 11, except those areas authorized for sewer. "WPCF Permit" means Water Pollution Control Facility permit. (Ord. 2008-012 § 1, 2008) 13.14.030. Siting Criteria for New Development. New Development shall meet the following criteria in order for an Onsite System to be permitted and constructed on the Lot: A. For the purpose of site evaluation approval, any modification to the Lot, including the placement of fill or the installation of groundwater interceptors, shall not be allowed. B. For site evaluations applied for and approved after the effective date of Ordinance 2008-012, an Onsite System, including the absorption facility, shall be installed on the Lot where the use to be served by the system is located. C. Locating the Onsite System or portion tim-col'on an adjoining Lot may be permitted if the Lots are consolidated or the Lot line adjusted following a linal land use decision by the County. D. The absorption facility for the Onsite System shall he installed to provide a minimum 24 inch vertical separation to the highest level attained by a round\vater t.ihIc as measured from the bottom of the absorption facility to the highest level of the groundwater table. E. The provisions in DCC 13.14.030(A), (B) and (C) expire 3 years from the effective date of Ordinance 2008-012 unless amended by the Board o f County Commissioners. (Ord. 2008-012 § 1, 2008) 13.14.040. GroundNs'ater Level Determinations. A. Upon review of an application for a site evaluation for an Onsite System, if the County cannot 4etem the groundwater levels using soil characteristics indicating conditions associated with satunmoii as defined in OAR 340-071, then the levels shall be determined using direct observation of groundwater on the Lot and in t:he general area. B. Direct observations by the County shall be made during a spring following a winter (October through March) with al least avera,,c Central Oregon historical total precipitation. C. Application for grMuldwatc r level determinations shall be made to the Department no later than the February 15 prior to the dates the groundwater observations are to be conducted pursuant to DCC 13.14.040(A) and (B). D. If the winter precipitation for the year in which the application is made is not equal to at least average precipitation levels described in DCC 13.14.040(B), then the application will be held and the groundwater level determination made after the next winter with at least average Central Oregon historical total precipitation. (Ord. 2008-012 § 1, 2008) 13.14.050. Performance Standards. A. The following performance standards shall apply to: Chapter 13.1.4 2 (XX/2008) 1. New Development at time of application for site evaluation and permit issuance; 2. Existing Development at time of application for an authorization notice, major alteration, or major repair, and 3. Existing Development at the time of upgrade required under DCC 13.14.050(F). B. New Development shall install a Maximum Nitrogen Reducing System. C. Existing Development located on a Lot that does not meet the 24 inch vertical separation to groundwater shall install a Maximum Nitrogen Reducing System. D. Existing Development located on a Lot that meets the 24 inch vertical separation to groundwater shall install an Onsite System that reduces nitrogen to at least the level specified for the area within which the Lot lies as specified in DCC 13.14.050(E). E. The Board shall adopt by resolution: 1. The Nitrate Loading Management Model; 2. Minimum nitrogen reduction standards applicable to this chapter: and 3. The map depicting where standards for Existing Devel(Y ment apply. The Department shall maintain the map depicting where standards for Existing Development apple. F. Beginning November 15, 2012, except as provided in DCC 13.14.050(G) and I)('C 13.14.080, all Existing Development served by Onsite Systems shall be upgraded with nitrogen rcducin<g systems in accordance with DCC 14.14.050(C) and (D) no later than November 15, 2022. G. An Onsite System that was or is operating under a WPCF Permit from ODEQ shall not be required to meet the performance standards in DCC 13.14.050(D) until such time as a major alteration or major repair is needed in accordance with OAR 340, division 71. (Ord. 2008-012 § 1, 2008) 13.14.060. Upgrades at Change of Property Ownership. A. A property with an Onsite Svstem approved or installed as of the effective date of Ordinance 2008-012 that is not the required ni(ro,cn reducing system pursuant to DCC 13.14.050 or a groundwater protection wastewatcr Crcatmcnt system pursuant to DCC 13.14.080 shall upgrade the Onsite System upon any sale, grant. com ell <ulrc or transfer of title of a property in South County. B. For each property M ith an ( )nsl tc System approved or installed as of the effective date of Ordinance 2008-012 that is not the rcyuirrd nitrmlcn rcdiwing svstem pursuant to DCC 13.14.050 or a groundwater protection wastewater treatment s-;tcm pursuant to DCC 13.14.080, Deschutes County shall record, in the Deschutes County Official records, a notice of the requirement to upgrade the Onsite System in accordance with DCC 13.14.050 o 13.17.080 upon sale, grant conveyance or transfer of title of property in South County. C. Upon an Onsite System upgrade top either a nitrogen reducing system approved pursuant to DCC 13.14.070 or other groundwater protection wastewater treatment system pursuant to DCC 13.14.080, Deschutes County shall provide the property owner with a release of the notice sufficient for recording in the Deschutes County Official records. D. Exceptions. 1. The sale, grant, conveyance or transfer of title of property does not include the transfer into a living trust for which the owner(s) of record as of the effective date of Ordinance 2008-012 is(are) the trustor(s). 2. The sale, grant, conveyance or transfer of title of property does not include the sale, grant, conveyance, or transfer of title of the property from a trust to any beneficiary. (Ord. 2008-012 § 1, 2008) 13.14.070. Listing Nitrogen Reducing Systems. A. Onsite Systems used for upgrades to Existing and New Development in the South County shall be Onsite Systems allowed by the ODEQ. Chapter 13.14 3 (XX/2008) B. Onsite Systems or components designed to reduce nitrogen, including Maximum Nitrogen Reducing Systems, shall be identified on a list maintained by the Department. 1. The list shall categorize the systems or components by demonstrated nitrogen reduction capability. 2. The nitrogen reduction categories in this list shall correspond to the performance standards shown in the legend on the map adopted under DCC 13.14.050(E) and which shows where the specific performance standards must be achieved. C. Vendors or designers of Onsite Systems may apply to the County to have additional systems listed by the Department as nitrogen reducing systems. 1. Applications must be submitted on a form specified by the Department and shall be accompanied by the fee established by the Board. 2. Applications must include documentation that the proposed Onsite System will meet the standards contained in DCC 13.14.050(E) and 13.14.060(A). a. An application by a vendor or designer to list an additional Onsiti System as a nitrogen reducing system shall include, but is not limited to. the following information: i. The quality of the septic tank effluent or waste« ater.influent received by the system during the performance test; ii. The quality of the proposed Onsite System influent and effluent including the following: a. The quality of the proposed Onsite Svstcm nitrogen concentration including organic and inorganic forms of nitrogen; b. Biochemical oxygen demand (5-day), total suspended solids, pH, dissolved oxygen, and temperature; and c. Measurements of wastewater flow to the system durin~ the performance test. iii. Lists of installers and maintenance providers certified to work in Oregon; iv. List of distributors or qualified designers for the system in Oregon; and v. Additional information and application fee as required by the Department. b. Data submitted h} ~ endo~rs or designers in support of an application toy list an additional Onsite System as a nitro,2rn rcductog system shall include at least one of the following: i. Peer rcvlcv~ cd articles; ii. Third part~° rcpoos: or iii. Papers and data presented and publish5d in conference proceedings. c. If data show the total rta ogen concentration of the influent to the proposed Onsite System is less than 65 mg/L on a\ era then the system's nitrate reduction performance shall be prorated accordingly unless the data show that nitrogen reduction increases as influent increases. G. Onsite Systems listed by the Deparhricnt shall continue to be listed unless performance data indicates that listing should be changed or revoked. (Ord. 2008-012 § 1, 2008) 13.14.080. Approval of Other Groundwater Protection Wastewater Treatment Systems. A. A Sewer System is permitted when: 1. A Sewer System has been authorized pursuant to OAR 660-11-0060(9) and OAR 660, division 4, including documentation that the Deschutes County Comprehensive Plank and Zoning Code have been amended and acknowledged pursuant to ORS 197; or 2. A Sewer System has been authorized pursuant to OAR 660-011-0060(41 through (7), including documentation that the Deschutes County Comprehensive Plan and Zoning Code have been amended and acknowledged pursuant to ORS 197; and 3. The performance of the Sewer System reduces total nitrogen loading for he area to be served, as measured in kilograms per day, to the minimum level specified by the Nitrate Loading Management Model and in DCC 13.14.050. Chapter 13.14 4 (XX/2008) B. A property owner may propose to the County a system other than an Onsite System or a Sewer System to reduce nitrogen loading to groundwater. 1. The property owner shall have the burden of proof that the proposed system will perform equal to or better than the performance standards established in DCC 13.14.050. 2. The system proposed to serve either New Development or Existing Development shall meet the minimum requirements adopted by the Board per DCC 13.14.050. (Ord. 2008-012 § 1, 2008) 13.14.090. Variances. A. The Department Director or, if on appeal, the Board, may authorize a % ariance lrom the requirements of DCC 13.14.050. B. Applications to the Department for variances shall be submitted on a 111 orni specified by the Department and accompanied by the fee established by the Board. C. The application must state fully the grounds for the variance and facts relied upon by the applicant and must demonstrate how strict compliance with the standard is impracticable. D. The Department Director or the Board may grant a variance in one of the following ;ituatioT: 1. The applicant provides a report of a detailed hydrogeooogic investigation h~ a registered hydrogeologist that demonstrates that the groundwater is protected from nitrogen contamination by the presence of persistent oxygen-limited groundwater conditions that will reduce nitrogen in the groundwater for the life of the system; or 2. The applicant demonstrates that an c\treme or unusual financial hardship exists. a. The following factors shall be eon-;id(!red by the Department or the Board in reviewing an application for a variance based on lirnancia] hardship: 1) Applicant's advanced age or poor health; 2) Applicant's financial ability to pavf'0r a nitrogen reducing system; 3) Applicant's need to care for aged, incapacitated, w disabled relatives; 4) The availability of financial assistance that is sufficient to offset the cost of installing, operating, or maintaining a nitrogen reducing Onsite System; and 5) Environmental impacts from the variance, b. Hardship variances granted by the Department shall include conditions that: 1) Limit permits to the life of the applicant; 2) Limit the number of permanent residents using the system; Require that the system is retrofitted to a nitrogen reducing Onsite System at time of sale of the property: and 4) requiring that the compliance date specified in DCC 13.14.050(F) shall not apply until ti,ii c of sale of the property. (Ord. 2008-012 §1 . 2008) 13.14.100. Appeals. A. Decisions of the Department made pursuant to this chapter may be appealed to the Board within twelve days of the date the Department's decision was mailed. B. The appeal shall be filed with the Department using a form specified by the Department and fee established by the Board. C. The documentation supporting the appeal must state fully the grounds on which the applicant is appealing the decision, the facts relied upon by the applicant and must demonstrate how strict compliance with the standard is impracticable. D. Decisions of the Board may be appealed in accordance with DCC 13.40. (Ord. 2008-012 § 1, 2008) Chapter 13.14 5 (XX/2008) 13.14.110. Fees. I A. The Board shall establish fees by resolution for permits and services under DOE 13.14. (Ord. 2008-012 §1, 2008) 13.14.120. Violation. A. Violation of any provision of DCC 13.14 is a Class A violation. (Ord. 2008-012 § 1, 2008) Chapter 13.14 6 (XX12008) F REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Adding Chapter 13.14 to Title 13, Public Services, of the Deschutes County Code. * ORDINANCE NO. 2008-012 WHEREAS, Deschutes County Community Development Department staff proposed amendments to the Deschutes County Code ("DCC") to require the use of nitrogen reducing onsite systems for permits issued by the County; and WHEREAS, notice of the proposed DCC text amendment was mailed in the Deschutes County tax statements to 10,243 property owners in the South Deschutes County area; and WHEREAS, the Deschutes County Planning Commission hosted an information session on the proposal in November 2006, notice of which was published in The Bulletin on November 25, 2006 and the Newberry Eagle on November 1, 2006; and WHEREAS, the Board of County Commissioners ("Board") held public hearings on March 13, 20 and 27, 2007 and on March 13, 2008, notice of which was published in The Bulletin on March 4, 2007; and WHEREAS, the public record for the rule was open for written testimony between March 27, 2007 and April 18, 2008; and WHEREAS, the Board held a public hearing on March 19, 2008, a notice of which was published in the Bend Bulletin on February 18, 2008; WHEREAS, the Board mailed information about the proposed amendment entitled "Frequently Asked Questions" to 9,484 property owners in south Deschutes County on April 18, 2008; and WHEREAS, the Board finds that the public will benefit from changes to the Deschutes County sanitation regulations to require better nitrogen reducing wastewater treatment systems in the south Deschutes County area; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. ADDING. That Deschutes County Code Title 13 is amended by the addition of a new chapter as described in Exhibit "A," attached hereto and by this reference incorporated herein. PAGE 1 OF 2 - ORDINANCE NO. 2008-12 (M/D/YR) f Section 2. FINDINGS. That the Board adopts as its findings in Report, attached as Exhibit "B" and incorporated by reference herein. Dated this of 52008 ATTEST: BOARD OF COUNTY OF DESC1 UTES COL of this decision, the Staff ,OREGON DENNIS R. LUKE, Cha'i'r TAMMY (BANEY) MELTON, Vice Chair Recording Secretary MICHAEL M. DALY, C Date of I" Reading: day of 52008. Date of 2nd Reading: day of , 2008. Record of Adoption Vote Commissioner Yes No Abstained Excused Dennis R. Luke Tammy Melton Michael M. Daly Effective date: day of , 2008. ATTEST: Recording Secretary issioner PAGE 2 OF 2 - ORDINANCE NO. 2008-12 (M/D/YR) f Chapter 13.14. SOUTH COUNTY ONSITE WASTEWATER TREATMENT 13.14.010. Application. 13.14.020. Definitions. 13.14.030. Siting Criteria for New Development. 13.14.040. Groundwater Level Determinations. 13.14.050. Performance Standards. 13.14.060. Upgrades at Change of Property Ownership. 13.14.070. Listing Nitrogen Reducing Systems. 13.14.080. Approval of Other Groundwater Protection Wastewater Tr" ilicnt Systems. 13.14.090 Variances. 13.14.100. Appeals. 13.14.110. Fees. 13.14.120. Violation. 13.14.010. Application. A. The provisions in DCC Chapter 13.14 are in addition to the requirements of ORS 454.605 to 454.755 and OAR chapter 340, divisions 071 and 073 and, in the event of an inconsistency, the more stringent provisions shall apply. B. The provisions in DCC Chapter 13.14 apply (only tQ those wastewater treatment systems that treat flows of residential strength wastewater, as defined in (>':1Tt-40-071, of 2,500 gallons per day or less. (Ord. 2008-012 §1, 2008) 13.14.020. Definitions. "Department" means, for purposes of this chapter, the Deschutes County Community Development Department. "Existing Development" means uses in South County do a Lot served by an Onsite System that does not meet the performance standards contained in DCC 13.14.050(E) as of the effective date of Ordinance 2008-0l n- "Lot" means lot or parcel as defined in ORS chapter 92. Tax lots may or may not be equivalent to legal Lots of record: "Maximum Nitrogen Reducine'System" means the Onsite System or Systems allowed for use by ODEQ and listed by the "Department at the time the permit is issued as having demonstrated the highest level of nitrogen reduction of tyre ( )nsite Systems listed pursuant to DCC 13.14.070. "New Development" means the establishment of a use on a Lot in South County where there is no existing use served by an Onsite System as of the effective date of Ordinance 2008-012. "Nitrate Loading Management Model" means the model produced by the US Geological Survey ("USGS") that specifies the performance standards that must be met by Onsite Systems in order to meet groundwater protection goals. "ODEQ" means the Oregon Department of Environmental Quality. "Onsite System" means onsite wastewater treatment system as defined in OAR 340, division 71. "Sewer System" means a system as defined in OAR chapter 660, division 11 that serves more than one Lot or parcel, or more than one condominium unit or more than one unit within a planned unit Chapter 13.14 (XX/2 )08) development, and includes pipelines or conduits, pump stations, force mains, devices, appurtenances and facilities used for treating or disposing of sews conducting sewage to an ultimate point for treatment and disposal. The follow Sewer System for the purpose of this code: A. A system provided solely for the collection, transfer and/or disposal of storm B. A system provided solely for the collection, transfer and/or disposal of anim as defined in ORS 215.203. "South County" means those unincorporated portions of Deschutes County 20, 21, 22 and Ranges 9, 10, and 11, except those areas authorized for sewer. "WPCF Permit" means Water Pollution Control Facility permit. (Ord. 2008-012 § 1, 2008) 13.14.030. Siting Criteria for New Development. all other structures, or for collecting or are not considered a ater runoff; or waste from a farm use in Townships 19, New Development shall meet the following criteria in order 'for an Onsite System to be permitted and constructed on the Lot: A. For the purpose of site evaluation approval, any rgodification to the Lot, including the placement of fill or the installation of groundwater interceptors, shall nor he aOnv Qd. B. For site evaluations applied for and approved after the effective-date of Ordinance 2008-012, an Onsite System, including the absorption facility, shall be installed on the Lot where the use to be served by the system is located. C. Locating the Onsite System or portion thereof on an adjoining Litt ittay,he ipermitted if the Lots are consolidated or the Lot line adjusted following a final land use decision b~ the County. D. The absorption facility for the Onsite System shall be installed to provide a minimum 24 inch vertical separation to the highest level attained by a groundwater table as measured from the bottom of the absorption facility to the highest level of the groundwater table. E. The provisions in )(C 1i. 1 ~,030(A), (B) and (C) expire 3 years from the effective date of Ordinance 2008-,V12 unlc s,, amended by the Board of County Commissioner (Ord. 2008-012 § 1, 2008) z . ~w I 13.14.040. Groundwater Level Detcrminatious A. Upon review of an application Fora site evaluation for an Onsite System, if the County cannot determine the groundwater levels using soil characteristics indicating conditions associated with saturation as defined in OAR 340-07 1then the levels shall be determined using direct observation of groundwater on the Lot and in the general area. B. Direct observations by the County shall be made during a spring following a winter (October through March) with at least average Central Oregon historical total precipitation. C. Application for groundwater level determinations shall be made to the Department no later than the February 15 prior to the dates the groundwater observations are to be conducted pursuant to DCC 13.14.040(A) and (B). D. If the winter precipitation for the year in which the application is made is not equal to at least average precipitation levels described in DCC 13.14.040(B), then the applicatioi will be held and the groundwater level determination made after the next winter with at least average Central Oregon historical total precipitation. (Ord. 2008-012 § 1, 2008) 13.14.050. Performance Standards. A. The following performance standards shall apply to: Chapter 13.14 2 (XX12008) 1. New Development at time of application for site evaluation and permit issuance; 2. Existing Development at time of application for an authorization notice, major alteration, or major repair, and 3. Existing Development at the time of upgrade required under DCC 13.14.050(F). B. New Development shall install a Maximum Nitrogen Reducing System. C. Existing Development located on a Lot that does not meet the 24 inch vertical separation to groundwater shall install a Maximum Nitrogen Reducing System. D. Existing Development located on a Lot that meets the 24 inch vertical separation to groundwater shall install an Onsite System that reduces nitrogen to at least the level specified for the area within which the Lot lies as specified in DCC 13.14.050(E). E. The Board shall adopt by resolution:--e 1. The Nitrate Loading Management Model; 2. Minimum nitrogen reduction standards applicable to this.clMptu; arid. 3. The map depicting where standards for Existing Development apply., The Department shall maintain the map depicting where standards for Existing Development apply.,,. F. Beginning November 15, 2012, except as provided in DCC 13.14.050(G) and. DC'C 13.14.080, all Existing Development served by Onsite Systems shall be upgraded with nitrogen reducing' systems in accordance with DCC 14.14.050(C) and (D) no later than November 15, 2022. G. An Onsite System that was or is operating under a WPCF Permit from ODEQ shall not be required to meet the performance standards in DCC 13.14.050(D) until such time as a major alteration or major repair is needed in accordance with OAK 340, division 71. (Ord. 2008-012 § 1, 2008) 13.14.060. Upgrades at Change of Property ChN nership. ` G A. A property with an Onsite System approved or Installed a,, `of the effective date of Ordinance 2008-012 that is not the required nitrogen reducing systCai pursuant to DCC 13.14.050 or a groundwater protection wastewater treatment system pursuant to DCC 13.14.080 shall upgrade the Onsite System upon any sale, grant, conveyance or transfer of title ~iF a property in South County. B. For each property with an Onsite System approved or installed as of the effective date of Ordinance 2008-012 that is not the required nitrogen reducing system pursuant to DCC 13.14.050 or a groundwater protection N astewater treatment system pursuant to DCC 13.14.080, Deschutes County shall record, in the Desciiute> Coitnty.Ufficial records, a notice of the requirement to upgrade the Onsite System in accord, incc with DCC '13.14.050 or 13.17.080 upon sale, grant conveyance or transfer of title of property. i n. South County. E. C. Upon an Onsite System upgrade to either a nitrogen reducing system approved pursuant to DCC 13.14.070 or' ether groundwater protection wastewater treatment system pursuant to DCC 13.14.080, Deschutes County shall prov oe the property owner with a release of the notice sufficient for recording in the Deschutes Count, Official records. D. Exceptions. 1. The sale, grant, c' on,, eyance or transfer of title of property does not include the transfer into a living trust for which the owner(s) of record as of the effective date of Ordinance 2008-012 is(are) the trustor(s). 2. The sale, grant, conveyance or transfer of title of property does not include the sale, grant, conveyance, or transfer of title of the property from a trust to any beneficiary. (Ord. 2008-012 §1, 2008) 1 13.14.070. Listing Nitrogen Reducing Systems. A. Onsite Systems used for upgrades to Existing and New Development in the South County shall be Onsite Systems allowed by the ODEQ. Chapter 13.14 3 (XX/2 )08) B. Onsite Systems or components designed to reduce nitrogen, including Maximum Nitrogen Reducing Systems, shall be identified on a list maintained by the Department. 1. The list shall categorize the systems or components by demonstrated nitrogen reduction capability. 2. The nitrogen reduction categories in this list shall correspond to the perfoirmance standards shown in the legend on the map adopted under DCC 13.14.050(E) and which shows where the specific performance standards must be achieved. C. Vendors or designers of Onsite Systems may apply to the County to have additional systems listed by the Department as nitrogen reducing systems. 1. Applications must be submitted on a form specified by the Department and shall be accompanied by the fee established by the Board. 2. Applications must include documentation that the proposed Onsite S. stem will meet the standards contained in DCC 13.14.050(E) and 13.14.060(A). j a. An application by a vendor or designer to list an additional'On"site System as a nitrogen reducing system shall include, but is not limited to, the following information: i. The quality of the septic tank effluent or wastewater influent received by the system during the performance test; ii. The quality of the proposed Onsite System influent and effluent includiii tht- following: a. The quality of the proposed Onsite System nitrogen concentration including organic and inorganic forms of nitrogen; b. Biochemical oxygen demand (5-day), total suspended solids, pH, dissolved oxygen, and temperature; and c. Measurements of wastewater flow to the system during the performance test. iii. Lists of installers and maintenance liroviders certified to work in Oregon; iv. List of distributors or qualified designers, for the system in Oregon; and v. Additional information and apphcanon feQ as required%by the Department. b. Data submitted by vendors or designers in support of an application to list an additional Onsite System as a nitrogen reducing system shall include at least one of the following: i. Peer reviewed articles; ii. Third party reports; or iii. Papers and data presented and published in conference proceedings. c. If;dftta _show the total nitrogen concentration of the influent to the proposed Onsite System is J+ '-,,s than iS ing/L on average, then the system's nitrate reduction performance shall be prorated acc6rdingly unless the data show that nitrogen reduction increases as influent i ncreases. G. Onsite Systems listed by the Department shall continue to be listed unless performance data indicates that listii -should be changedlor revoked. (Ord. 2008-012§ I, 2008) 13.14.080. Approval of Other Groundwater Protection Wastewater Treat ent Systems. A. A Sewer System is pr nnitted when: 1. A Sewer System has been authorized pursuant to OAR 660-11-0060(9) and OAR 660, division 4, including documentation that the Deschutes County Comprehensive Plan and Zoning Code have been amended and acknowledged pursuant to ORS 197; or 2. A Sewer System has been authorized pursuant to OAR 660-011-0060(4) through (7), including documentation that the Deschutes County Comprehensive Plan and Zoning Code have been amended and acknowledged pursuant to ORS 197; and 3. The performance of the Sewer System reduces total nitrogen loading for the area to be served, as measured in kilograms per day, to the minimum level specified by the Nitrate Loading Management Model and in DCC 13.14.050. Chapter 13.14 4 (XX/2 )08) B. A property owner may propose to the County a system other than an Onsite System or a Sewer System to reduce nitrogen loading to groundwater. 1. The property owner shall have the burden of proof that the proposed system will perform equal to or better than the performance standards established in DCC 13.14.050. 2. The system proposed to serve either New Development or Existing Development shall meet the minimum requirements adopted by the Board per DCC 13.14.050. (Ord. 2008-012 § 1, 2008) 13.14.090. Variances. A. The Department Director or, if on appeal, the Board, may authorize a variance from the requirements of DCC 13.14.050. B. Applications to the Department for variances shall be submitted on a form specified by the Department and accompanied by the fee established by the Board. C. The application must state fully the grounds for the variance and facts relied upon by the applicant and must demonstrate how strict compliance with the standard is impracticable. D. The Department Director or the Board may grant a virittnce in one of the following situations: 1. The applicant provides a report of a detailed h%drogeologic investigation by a registered hydrogeologist that demonstrates that the groundwafer i5 1)naected.from nitrogen contamination by the presence of persistent oxygen-limited groundwater conditions that will reduce nitrogen in the groundwater for the life of the system; or 2. The applicant demonstrates that an extreme or unusual financial hardship exists. a. The following factors shall be considered by the Department or "the Board in reviewing an application for a variance based on financial hardship- Applicant's advanced age or poor health; - 2) Applicant's financial ability to pay for a nitrogen reducing system; 3) Applicant's need to care for aged, incapacitated, or disabled relatives; 4) The availa,bility M financial assistance that is sufficient to offset the cost of installing, operating; or maintaining a nitrogen reducing Onsite System; and 5) Environmental impacts.from the variance. b. Hardship variances,grw)ted by the Department shalI include conditions that: 1) Limit permits to_'tbe litc of the appli( ant; 2) Limit the number of permanent residents using the system; 3) Require that the system is retrofitted to a nitrogen reducing Onsite System at time of sale of the property; and 4) Requiring that the compliance date specified in DCC 13.14.050(F) shall not apply until time of sale of the property. (Ord. 2008-012 § 1, 2008) 13.14.100. Appeals. A. Decisions of the Department made pursuant to this chapter may be appealed to the Board within twelve days of the date the Department's decision was mailed. B. The appeal shall be filed with the Department using a form specified by the Department and fee established by the Board. C. The documentation supporting the appeal must state fully the grounds on which the applicant is appealing the decision, the facts relied upon by the applicant and must demonstrate how strict compliance with the standard is impracticable. D. Decisions of the Board may be appealed in accordance with DCC 13.40. (Ord. 2008-012 § 1, 2008) Chapter 13.14 5 (XX/2008) y j 13.14.110. Fees. A. The Board shall establish fees by resolution for permits and services under (Ord. 2008-012 § 1, 2008) 13.14.120. Violation. A. Violation of any provision of DCC 13.14 is a Class A violation. (Ord. 2008-012 §1, 2008) 13.14. (xw2 )09) REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHII)TES COUNTY, OREGON A Resolution Adopting the Nitrate Loading Management Model to Establish Performance * RESOLUTION NO. 2008-021 Standards for Onsite Wastewater Treatment Systems in South Deschutes County. WHEREAS, on June 11, 2008, the Board of County Commissioners (`Board") adopted Ordinance 2008-012 to add Deschutes County Code ("DCC") Chapter 13.14 to protect>public waters in south Deschutes County from pollution by onsite wastewater treatment systems, and WHEREAS, DCC 13.14.050(E) pro-v-rdes that the Board must adopt by resolution the minimum nitrogen reduction standards and the map dep'rcti: g.the locations where these standards apply; and a WHEREAS, beginning in 1999, the United. States- Geoh, gical Survey ("USGS") and the Oregon Department of Environmental Qualify, -('`DEQ'') `conducted significant groundwater investigations in the Upper Deschutes River watershed, in general, and the La Pine sub-basin in particular, and WHEREAS, the USGS and the DEQ devehped the three-dimensional groundwater and nutrient fate and transport model of the La Pine sub-basin of the Upper Deschutes River watershed, and WHEREAS, on or about 2007, the USGS and the DEQ published documentation of the development and findings of the groundwater study, the three-dimensional groundwater and nutrient transport model and the Nitrate Loading Management Model, and WHEREAS, the USGS developed the Nitrate Loading Management Model ("Model') as a groundwater quality management tool for use in south Deschutes County, now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, as follows: Section 1. The Board adopts the Nitrate Loading Management Model published by the USGS in December 2007 as the basis for approving the nitrogen reducing onsite wastewater treatment systems pursuant to DCC Chapter 13.14. PAGE 1 of 2 - RESOLUTION NO. 2008-021 Section 2. The minimum performance standard required for a proposed nitrogen reducing system under DCC Chapter 13.14.070(B) shall be 35% reduction of total nitrogen, which is approximately equal to a maximum of 30 mgA total nitrogen in wastewater treatment system effluent from a typical residence. Section 3. The maximum performance standard required for a proposed nitrogen reducing system under DCC Chapter 13.14.070(B) shall be the maximum nitrogen reduction achievable by a system approved by the DEQ and listed by Deschutes County as a Maximum Nitrogen Reducing System pursuant to DCC 13.14.060. Section 4. The a proposed nitrogen reducing system: under DCC Chapter 13.14.070(B) shall maintain no higher than 7 mg/L nitrate as N average concentrations in the shallow groundwater in accordance with OAR 340-040, Groundwater Quality Protection. Section 5. The locations where the above pdrfk-~fmance standa -ds must be achieved for existing systems in the south Deschutes County region are identified un tte°~€nap attached as Exhibit "A," attached hereto and by this reference incorporated herein. Section 6. The Deschutes County Community Developirieiit.Department shall maintain tae map identifying the locations where the above performance standards must be achieved for existing systems in south Deschutes County. DATED this day of i DENNIS R. LUKE, Chair ATTEST: Recording Secretary 2008. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY MELTON, Vice MICHAEL M. DALY, PAGE 2 OF 2 - RESOLUTION NO. 2008-021