2009-43-Minutes for Meeting January 30,2008 Recorded 2/5/2009COUNTY
NANCYUBLANKENSHIP,FC UNTY CLERKS Q Z0943
COMMISSIONERS' JOURNAL
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2009-43
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Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF SPECIAL MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, JANUARY 30, 2008
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Dennis R. Luke, Michael M. Daly and Tammy
(Baney) Melton. Also present was Dave Kanner, County Administrator; Tom
Anderson, Catherine Morrow, George Read, Dan Haldeman and Todd Cleveland,
Community Development Department; media representatives from KTVZ and
KOHD TV, several other representatives of the media; and approximately twenty
other citizens.
The meeting was between the Board of Commissioners, representatives of DLCD
and representatives of DEQ, to discuss South County groundwater issues and
solutions. (Michael Kvcinski, Robert Baggett and Joni Hammond, DEQ; and Doug
White, DLCD)
Chair Luke opened the meeting at 5:30 p.m., at which time the various participants
introduced themselves.
Chair Luke said that he is happy to receive the letter from DEQ regarding sewer
systems. This could help to make some options available.
Commissioner Melton stated that it is important that they have reached this point
and hopes future work can be done together.
Commissioner Daly said that he appreciates everyone coming to the meeting. It
has been a long, controversial road and all three Commissioners are not out to hurt
anyone or impose a burden on anyone, but want to find a solution and work
together to do it.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 1 of 9 Pages
Doug White thanked the County and DEQ for their cooperation, and said that
Community Development has been very helpful. A lot of good strides have been
made and he hopes a resolution can be reached.
Joni Hammond said that they have come a long way. There is a lot of work to do
but she is optimistic that they will be able to work through this situation.
Chair Luke clarified the role of each entity at this time. He said that a series of 14
questions was shared with the agencies before tonight. Questios 1 and 3 have been
combined.
Doug White rendered the answers to questions in writing, using as a script, and
said he would make a copy available. He said that LCDC rules regarding public
health hazards do not require that DEQ go through a public process. He anticipates
DEQ will be involved when there is an application for a sewer, if there is no
practicable alternative. DEQ has determined a public health hazard does exist, and
believes it sets the stage for specific actions to be taken if four conditions are met.
The DEQ letter indicates that three of the four conditions now exist.
Joni Hammond said that her agency concurs. DLCD and the DEQ met to work on
this challenge, to find a solution to a laborious, possibly expensive problem.
Mr. White added that there are other, similar situations in the State, but the
definition is a bit different. It is hoped they can be proactive and get to the
problem sooner.
Commissioner Melton said that they have heard a lot from the community
regarding water becoming contaminated. She asked if it can be stated that it is or
is not contaminated at this time, and whether there is a way to state whether this
exists.
Mr. Kvcinski said there are certain hot spots and some areas of elevated nitrates.
Most of them would not show a problem yet.
Commissioner Melton asked if it is contaminated, perhaps not to the federal or
state level, but some other standard. Folks have asked for it to be publicly stated if
it is contaminated at this point. She said she understands that there are hot spots,
but asked if the water in Deschutes County is contaminated to the point where
someone might get sick.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 2 of 9 Pages
Michael Kvcinski stated it is not, as of today.
Commissioner Melton indicated the County wants to take a proactive approach to a
pending issue. It is important to say that for all intents and purposes, the media
will help with expressing this clearly. This is different than "don't drink the water,
you'll get sick".
Mr. Kvcinski replied that it is better to be proactive now than reactive in the future.
Commissioner Luke noted that 4% of the wells exceed federal standards, and
another 10% have what staff calls "background". The rest have what occurs
naturally. He said he was raised in the Willamette Valley, and the river there
didn't get contaminated overnight but when it did, it took a long time to get rid of
the pollution. If they have the ability to do so, it is a lot cheaper and quicker for
everyone to deal with it earlier.
He asked in regard to #2, the USGS study as published, does the DEQ see any
problem with the June 2007 draft versus final versions. Ms. Hammond stated that
they don't have concerns, and support the model and the report.
Commissioner Daly said that some citizens want another study done. He asked
how the DEQ reacts to that request; is the science that has already been done
reliable, or would another study change the results? This has been asked many
times.
Ms. Hammond stated that in general they support the model, but there is always
additional data that could be input; also, assumptions are used for any kind of
model. But they support the model.
Commissioner Melton said that it is important to discuss this, since they often
don't get a chance to meet. She asked, if she gets an e-mail requesting money for
research for something that has already been presented, does the DEQ find that the
current information is enough to move forward, or are there parts that should be
researched further. If this is not made clear, there will likely be a request. If the
DEQ has questions, the County needs to know that now.
Mr. Kvcinski said these are tough questions. To him it sounds like a question of
the people who are requesting it. The agency is fine with the model as it is. If
other folks are not, he does not know how to answer this.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 3 of 9 Pages
Commissioner Melton stated that with research of this magnitude, to know if it is
valid and the modeling is valid, the County will turn to the DEQ to answer it. The
DEQ has reviewed it as presented and appear to want to move forward. Therefore,
if someone else wants to do another study, they are free to do so. She wanted to be
clear on this.
(Consensus of the various agencies was indicated.)
Commissioner Luke added that there was substantial peer review from outside
agencies who verified the model.
Mr. Kvcinski said that if someone is interested in reviewing it, they should have
full information so they can understand what was reviewed and go through the
assumptions.
In regard to question #4, Commissioner Luke asked who would initiate a sewer
district or expansion.
Mr. White said that it needs to be a local effort, and involve all interested citizens.
An ad hoc committee is usually formed to analyze the need. They may want to
seek legal counsel, as it is very complicated.
Commissioner Luke noted that it is mostly citizen driven. Mr. White added that
the Board may also initiate the formation of the district. Commissioner Luke said
that it still requires a vote of the people.
Commissioner Daly said that he is familiar how sewer districts work. One thing
that sticks in his mind is that there are probably some large subdivisions that could
form a sewer district. Most have 160 acres or more to spread the affluent. That
seems to be a huge obstacle in this case, finding the land to do it. He asked if they
have done any analysis of any of the areas and how they might do this.
Robert Baggett said they are just starting the process and have not done this kind of
analysis. Perhaps federal agencies could be involved.
Commissioner Luke asked if DLCD can help develop this process, or create a way
for citizens to know if they are close to meeting the criteria. This cannot be
presumed until there is an application.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 4 of 9 Pages
Mr. White said that the DEQ and County could establish some procedures, and
how the DEQ could involve the County and other agencies if there are no
alternatives. In order to pursue a sewer district, there needs to be no alternatives.
They still have to look at this question, based on Administrative Rule.
Ms. Hammond added that the criteria have to be met. They are willing to meet
informally with groups to get through that process. They don't want to push
having sewer districts but it may be an alternative.
Mr. Kanner asked if expanding an existing district uses the same process as
creating a new one. Mr. White replied that he is not familiar with how this works.
At this point the area served by a district would be subject to Goal 11.
Mr. Kanner asked if landowners are to contact the DEQ direct about existing
districts.
Ms. Craghead said that either situation can be initiated by the landowner. An
expansion or annexation has to go to the district board to get approval. Once this
happens, and if 100% of the landowners are agreeable, an election is not needed.
If there are a lot of owners or they don't agree, it would need to go to an election.
The same applies for the formation of a new district if there is no requirement for a
taxing district.
Mr. White stated that this is usually how it is done. There are times when there is
already a district but additional services are needed. Ms. Craghead said that there
has to be a finding of the Board that it complies with State and County land use
and the comprehensive plan.
In regard to #6, Mr. White said the County and DEQ would have to determine
what should be done. Mr. Kvcinski added that he hopes they don't get to that
place, and that he would like to see all the ducks in a row before then. This will
take work of the citizens, the County and DEQ together.
Regarding #7, Mr. White stated that DLCD believes the County may alter
boundaries to exclude or include areas. Findings regarding the areas served would
be conditioned upon the Goal 11 process.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 5 of 9 Pages
Mr. White said that the County would have to answer #8. Commissioner Luke
asked if a special sewer district is formed but can no longer operate, does the
County have to take it over. Mr. White replied that he is familiar with this in one
instance. The County in question did take it over, not the DEQ.
Ms. Craghead indicated that it may have to do with whether it is a special sewer
district or a County service district. Also a sanitary district is a separate legal
governmental entity and the County would have nothing to do with how it is run.
In regard to #9, Mr. White said that this would be a determination by the DEQ that
an existing public health hazard cannot be adequately abated by existing systems,
and that it is not practicable to use an on-site system. It is pretty straightforward.
Financial considerations have not been tested under this rule. It could be a factor
but this has not yet been determined.
Commissioner Luke said that there have been discussions with staff regarding lots
where the water table is too high. If a system can be put in, how hard is it to prove
that a sewer is best - does this have to be done one lot at a time. Mr. White replied
it would be one lot at a time. A sewer system is any component shared by more
than one lot.
Commissioner Luke asked if there was a 50-lot subdivision and the owners
decided they'd like to form a district, would they still have to examine each lot
individually. Mr. White replied that they would have to show that there is no
alternative, and he believes it would mean looking at each lot.
Commissioner Daly asked if it would have to be determined that the septic is not
working adequately. Mr. White replied that the criteria for the Rule are to
establish what is to be on sewer. This needs to include lots that are contributing,
which can include vacant lots if the abut or surround the others and there is a high
probability that they will contribute or fail. This Rule really deals with all types of
sewers, but there is a specific process for each parcel.
Commissioner Daly indicated that the science has said that the existing systems are
now working just fine but it has been found that they are creating the nitrates, and
that is the issue. Doe there need to be a finding that an entire subdivision is not
being treated adequately because of nitrates? Mr. Kvcinski said that this is
indicated in the DEQ's recent letter.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 6 of 9 Pages
Commissioner Daly said that the Board gets a lot of calls from people who say
their system is working okay. Mr. Kvcinski replied that it may not be backing up
in the house or coming to the surface, but doesn't mean it is working fine.
Commissioner Melton clarified that if there are fifty lots in an area and those
owners would like to sewer, they would have to be reviewed on an individual
basis. She added that she doesn't hear this getting past the practicable alternative
part. She asked if DEQ weighs in with DLCD on this, or if it is 100% a DLCD
determination.
Mr. White stated that it is under Administrative Rule, but it is not their call. DEQ
makes the determination and the County also does. There needs to be a basis for
this determination.
Commissioner Melton asked the DEQ, given the circumstances, is this a factor that
should be considered. Folks want a sewer district; is that the best option instead of
individual new systems. Mr. Kvcinski replied that all fifty lots could put in
individual systems that will get them to minimum requirements, but a district could
bring that to 95% removal, a better treatment level. Applicable laws and rules
have to be considered but there needs to be some flexibility. Mr. Baggett added
that it is a regional concern, and if 95% can be reached, it would be more
practicable.
In regard to #10, Mr. White agreed. There is a provision in Administrative Rule
that if it makes sense and provides capacity, it could be the best alternative. The
Rule is meant to address urban services outside the UGB. A cluster system instead
of a sewer line may be preferred.
Under # 11, Ms. Hammond said she supports this if it is flexible in the types of
systems. She understands the County is redrafting the local ordinance to include
others. She has not seen the latest version.
In regard to # 12, Ms. Hammond said the DEQ agrees; Mr. White also said yes for
the DLCD.
Regarding # 13, Ms. Hammond stated she has answered this a couple of times.
They could go to the legislature and ask for a geographical rule or groundwater
management rule, but probably would not get anything in the 2009 session. She
said that she believes a local ordinance is handled under the police power authority
granted locally regarding groundwater, and this is different than contracting with
the DEQ for septic systems.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 7 of 9 Pages
Commissioner Luke asked what the possibility is of a comprehensive plan
amendment to form a whole district south of Lava Butte.
Mr. White stated this is not possible, unless land use regulations make it clear that
the entire area is potentially eligible. There is a problem in the area, but are cases
where it might be appropriate and others where it is not necessary.
Mr. Kanner said that each case may require a comp plan amendment. He asked if
they could do just one. Mr. White replied that if the County has the ability to do
these case by case, they could apply an overlay to amend it.
Mr. Kanner asked if there is technical assistance to help the County with this. Mr.
White said there is. He believes the DEQ letter and determination under DLCD
satisfies the findings.
Commissioner Daly said if there is a finding by DEQ that there is a health hazard,
is there any way to qualify for federal assistance. It seems that there is a lot of
federal money available to cities when they put in sewer systems. Ms. Hammond
replied that the DEQ can work with the federal and state agencies. If there is a
public health hazard, this could help to get additional funding, but she is not sure if
that is the only criteria. Mr. Kvcinski agreed, adding that there might be some
federal funds but he is not certain.
Commissioner Daly asked, in the experience of DEQ and DLCD, how the end cost
could be determined for a large neighborhood. This is a huge undertaking and the
cost could be very high.
Mr. Kvcinski observed that he has seen it go both ways. It depends on how
complex the situation is. Higher end systems are expensive, too, and require
nitrogen reduction. But if resources are pooled and spread out, it can be better for
everyone. It depends on the collection system and other factors. The bottom line
is that they will have to work with an engineer to come up with a design and the
possible cost.
In regard to funding, it might be worthwhile to look at state revolving loan funds.
These might be used for more than large municipal treatment plants. This has been
tried in other areas but it has to be a loan to a government entity, which in turn can
make loans to individual citizens. There is a risk that it would not be repaid.
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 8 of 9 Pages
Commissioner Luke thanked the guests for attending. Mr. Kanner suggested that a
draft of the local rule be completed and made available for review, including the
DEQ and DLCD, and set up some public hearings on it. Mr. Anderson said that
his group is already working on some revisions to Code, and a major theme has
been to provide for options or alternatives for individuals or subdivisions.
Mr. Kanner stated that a specific charge is needed for the Financial Assistance
Advisory Committee so they will know what to do next. A facilitator will be
working with the group so they can stay focused.
Commissioner Luke quoted Senator Wyden: He now knows more about nitrates
than he ever wanted to know.
Being no further items to come before the Board, Chair Luke adjourned the
meeting at 6.•40 p.m.
DATED this 30th Day of January 2008 for thj/,feschutes County Board
of Commissioners.
R. Luke,
Tammy (Raney) Melt8n, Vice Chair
ATTEST: Z44
is ael aly, ommissioner
Recording Secretary
Attachments
Exhibit A: Agenda
Exhibit B: Sign-in sheet
Exhibit C: Letter from DLCD dated January 30, 2008, listing questions #1
through # 14
Minutes of Board of Commissioners' Special Meeting Wednesday, January 30, 2008
Page 9 of 9 Pages
Proposed agenda for 1/30/08 work session with DEQ/DLCD:
Welcome and introductions
Questions from BoC for DEQ and DLCD
Discussion of next steps
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i e s s Theodore R. Kulongoski, Governor
January 30, 2008
Department of Land Conservation and Development
Central Oregon Regional Office
888 NW Hill Street, Suite 3
Bend, OR 97701-2942
Rural Regional Representative (541) 318-2890
Urban Regional Representative (541) 318-2899
Community Service Specialist (541) 318-8193
Fax (541) 318-8361
Web Address: http://www.oregon.gov/LCD
TO: Deschutes County Board of Commissioners ~
FROM: Doug White, Community Services Specialist
SUBJECT: Commissioner's January 30, 2008 Work Session
Agency Response to Questions Regarding Goal 11
Provided below are the Department of Land Conservation and Development's (DLCD)
responses to the fourteen questions that were generated by the county as a result of a
letter issued by the Department of Environmental Quality (DEQ) on January 4, 2008, and
as a result of the county's consideration to adopt a local rule regarding the groundwater
issue in South Deschutes County.
1. How can DEQ issue this determination of public health hazard without first going
through a public process?
The LCDC rule regarding public health hazards as a basis for new or extended
sewer system outside of an urban growth boundary does not, by itself, require DEQ
to go through a "public process." It is anticipated that DEQ will be involved when
the county begins the public process to consider a completed application requesting
land use approval for any new or extended sewer system in response to a DEQ
determination of "no practicable alternative to a sewer system" under
OAR 660-011-0060(4)(D).
2. Now that the USGS study has been published, does DEQ see any problems or
have any concerns with the published version compared to the draft version you
reviewed in June, 2007?
Question for DEQ.
3. DEQ has determined that a public health hazard exists in South County pursuant
. to DLCD administrative rules. Can you explain what the determination means?
We believe that it sets the stage for "specific determinations" of no practicable
alternative to sewer systems under OAR 660-011-0060(4)(a)(D), which authorizes
the county to approve a sewer system in a rural area without having to take an
exception to Goal 11. When all four conditions exist under paragraph (4)(a) of the
rule, the county may approve the sewer system in order to abate the health hazard,
January 30, 2008 Work Session Page 2
without taking an exception, provided certain other conditions are met (under
paragraph (4)(b) of the rule). DEQ's January 4, 2008 letter indicates that three of
the four rule conditions exist today.
4. Who will initiate the creation of sewer districts or the expansion of existing sewer
districts?
Formation of a sewer district is a local effort that should involve all interested
citizens in that community or neighborhood. Usually, an unofficial or "ad hoc"
committee is formed to analyze the need for the district and the steps to be
undertaken. Those interested in the formation of a new district may want to seek
legal counsel.
The County Board of Commissioners also may initiate the formation of the district.
Can you explain how citizens would initiate the process of creating a sewer
system? Understanding that we cannot presume the outcome of a land use
application process, can DLCD help us develop criteria to consider in reviewing
applications for comp plan amendments?
DEQ and the county could establish procedures that a land owners or group of
owners could follow. The procedures would also provide for the county's
involvement in these DEQ determinations (see flow chart). The criteria should
include those in OAR 660-011-0060(4) as well as any applicable DEQ and county
criteria.
Yes, we can help you develop the criteria you describe.
6. What happens in an area where a determination is made that there is no
practicable alternative to sewer, but property owners in that area can't or won't
form or expand a sewer district?
The county and DEQ will need to determine what would occur if property owners
can't or won't form a sewer district.
7. For DLCD: How can a sewer district be formed without a land use finding that an
area can be served by sewer?
DLCD believes that any sewer district formed in advance of having their service
area boundary established through the land use process (in this case Goal 11) is at
risk of not having the authorized service area and the district boundary be the same.
The county may alter the boundaries set forth in a petition to either exclude or
include territory. The county is required to consider the area to be served under
Goal 11 when reviewing the formation of the district.
January 30, 2008 Work Session Page 3
8. Will the County have to operate sewer districts?
This question is for the county to answer.
9. For DLCD: Can you please explain the definition of the term "no practicable
alternative?" Do financial considerations factor into the determination of no
practicable alternative? To what degree?
This term is specifically defined under OAR 660-011-0060(1)(c).1 It means a
determination by DEQ, pursuant to criteria in chapter OAR 340, division 71, and
other applicable rules and laws, that an existing public health hazard cannot be
adequately abated by the repair or maintenance of existing sewer systems or on-site
systems or by the installation of new on-site systems as defined in
OAR 660-071-0100.
The extent to which financial considerations are a factor in the determination of no
practicable alternative under this rule has not been tested.
10. Does DEQ have the ability to allow an existing sewer district to expand into an
area where, a determination is made that there is no practicable alternative to
sewer? If the answer is yes, does that apply to sewer systems inside urban areas
as well as systems outside of urban areas?
Yes. OAR 660-011-0060(4)(a) includes a provision for "extension of an existing
sewer system" if, based on DEQ recommendations, the county determines that
extension of an existing sewer system is the most practicable in order to abate the
health hazard. The extension of an existing sewer system under the no practicable
alternative determination could include: (1) La Pine's system currently located
within an unincorporated community boundary (which will eventually be replaced
with an urban growth boundary; or (2) the Oregon Water Wonderland 2 system,
which was approved under the exception process.
Where DEQ has determined that there is no practicable alternative to a sewer
system, the county, based on recommendations from DEQ, is to determine the most
practicable sewer system to abate the health hazard considering its sufficiency to
abate the health hazard and the following factor (OAR 660-011-0060(5)(b)):
"New or expanded sewer systems serving only the health hazard area shall be
generally preferred over the extension of a sewer system from an urban
growth boundary. However, if the health hazard area is within the service
area of a sanitary authority or district, the sewer system operated by the
authority or district, if available and sufficient, shall be preferred over other
sewer systems options."
1 "No practicable alternative."
January 30, 2008 Work Session Page 4
11. Does DEQ support the county in adopting a local rule to address public health
issues in areas that can be practicably served by onsite systems?
This question is for DEQ to answer.
12. We have been rewriting the draft local rule to reflect input from the public and
other stakeholders. Will DEQ and DLCD be prepared to offer specific comments
on the local rule language as part of the public comment period on this proposal?
Yes.
13. What would DEQ do if Deschutes County simply declined to adopt a local rule
given that DEQ has already stated that "doing nothing is not an option?"
This question is for DEQ to answer.
14. Would a plan amendment comply with Goal 11 and related rule that allowed
sewer everywhere south of Lava Butte, even if the plan amendment covered areas
in which it was subsequently determined that there is a practicable alternative to a
sewer system?
No, unless an exception to Goal 11 is taken, or the adopted plan policies and land
use regulations makes it clear that the "everywhere" you describe is only the area
that is potentially eligible for sewer systems under Goal 11 In order for an area to
actually be authorized for a sewer system one of these three things must happen:
1. The area being authorized for a sewer system is included within an
acknowledged urban growth boundary or unincorporated community
pursuant to Goal 14 and related rules; or
2. All of the conditions under OAR 660-011-0060(4) are satisfied, and the
county authorizes the sewer systems pursuant to OAR 660-011-0060(4)
through (7); or
3. An exception to Goal 11 is justified for the area to be served by the sewer
system.
Land owner(s) contact DEQ or DC
with interest in a Sub D
determination for an area.
Web site/information packet made available
Owner(s) submit needed information
and request a pre-application meeting
with DEQ and county (optional).
Pre-application meeting
DEQ determines if information is:
Incomplete.
DEQ describes missing information
Owner(s) compile missing information
Submits it to DEQ.: j
DEQ notifies county (and special districts
and La Pine where appropriate) of request
for Sub D determination, and forwards
information provided by owner(s). CC to
owner(s)
Within 10 days of notice, county may
comments on request and information
DEQ makes a Sub D determination and
notifies county and owner(s)