2009-1398-Minutes for Meeting July 15,2009 Recorded 7/27/2009COUNTY
NANCYUBLANKENSHIP,F000NTY CLERKDS CJ 2009.1398
COMMISSIONERS' JOURNAL 01121/2009 08;28;30 AM
II iijill11111111
Z 1388
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 [give 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, JULY 15, 2009
Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger.
Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy
County Administrator; David Inbody, Assistant to the Administrator; Laurie
Craghead, Legal Counsel; Tom Anderson, George Read, Dennis Perkins and Todd
Cleveland, Community Development; George Kolb and Dan Sherwin, Road
Department; and four other citizens, including Commissioner Cheryl Hukill of
Klamath County and her husband Ronald. No representatives of the media were
present.
Chair Baney opened the meeting at this time.
1. Overview of Draft ESA Risk Assessment.
Dave Inbody gave an overview of the evaluation, which relates to the
Endangered Species Act and specifically the protection of steelhead. A study
was done that identified certain concerns and inquiries were made as to how the
County is addressing those concerns.
The main areas of concern are Big Falls, and the County's policies and
procedures for handling any potential problems. It could be that the County's
risk exposure is slight or non-existent.
The question is what the federal government has indicated is threatened; the
other aspect is what the County would do if such a threat materialized. Some
issues can be difficult or expensive to address.
In regard to wetlands and the riparian corridors, it is felt that more mapping of
those areas is needed. Tom Anderson said that the grant used for this purpose
was not adequate. The general consensus is that doing this mapping will be a
huge step in the right direction.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 1 of 8 Pages
Also, construction near the river is an issue. The consultants felt that ten feet
from a stream was adequate. However, this can only be done through a
conditional use permit, and if it impacts the steelhead, cannot be allowed.
Laurie Craghead said that removing vegetation in these areas is a violation and
can result in a fine. Mr. Anderson stated that there is a detailed process to go
through in order to remove material or add fill in some areas. There can be a
huge fine and possible jail time if a person violates the Endangered Species Act.
Commissioner Unger pointed out that the evaluation has not been approved at
this point, and there could be changes. Mr. Anderson added that the process
already exists in County Code, but the question is whether there will be an
expanded wetlands area required. Ms. Cragehad said that this could result in
how County rules are applied.
Another concern was in regard to new stream crossings. It was felt that it is
unlikely that any new stream crossings would be allowed unless one is
constructed by the Forest Service.
Mr. Anderson said there is a setback at the high water mark. Ms. Craghead
stated that there have been decisions allowing construction closer due to a
variety of reasons.
Dan Sherwin pointed out that the Road Department is keeping this in mind
when they do roadwork and spraying for weeds near the waterways.
This will be discussed further when the results of the evaluation are more fully
known.
2. Discussion of Regional Groundwater Protection Meeting with the
Department of Environmental Quality (July 22).
Mr. Anderson stated that it is the County's view that the DEQ will take more of
a leadership role in this situation now, and the County will go over the formal
steps available to use now. The DEQ has done this is other parts of the State
where there were areas of concern.
There are two levels of action that can be taken in this situation. They are not
necessarily consecutive.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 2 of 8 Pages
The first step is a groundwater management program that is more or less
voluntary, based on education and recommendations. For instance, the
Southern Willamette Valley has a groundwater management plan. The DEQ
might do this just to secure funding; but they would have to identify areas and
ways to handle the issue.
The second level is much more enforcement-based and is called the geographic
rule, based on State law. It is similar to the local rule in some regards. The
geographic rule can cross county lines. They can require different remedies for
prescriptive wastewater treatment systems. They can also put in a moratorium
on building. They can require certain septic systems or a sewer system. It will
probably be much more specific and not area-wide.
One likely path would be for them to declare the area and decide on a more
specific plan area by area. Certain areas could be found to have no practicable
alternative except sewer (in relation to the Sunriver system); but in other areas
something else could be required, such as a nitrogen reduction system.
Commissioner Luke asked how the State could mandate a development have a
sewer system when they will not help. Ms. Craghead stated that they could do
this. Commissioner Luke asked if staff could find out what they can do about
it.
Commissioner Baney stated that the question has always been whether to
handle this locally, with some funding available, or deal with the State's
mandates. She also pointed out that the State is on record saying that doing
nothing is not an option. Todd Cleveland said they used Goal 11 to declare this
a hazard and not a health declaration of hazard.
Commissioner Baney stated she had a conversation with Joani Hammond of the
DEQ. It has been a difficult road and a date of July 23 has been set up for a
meeting. The Board wanted to have a work session to figure out what comes
next. Ms. Hammond said she wanted to find out what the community wants;
Commissioner Baney observed that a lot of this has been done already, and the
County should sit on the sidelines and let the DEQ garner whatever information
they are seeking.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 3 of 8 Pages
Commissioner Baney said that Ms. Hammond wants to call this a hand-off
meeting. This clarifies the reason for the meeting. The community may have a
chance to discuss the issues, but the plan should be for both agencies to discuss
how this work can be handled. Each agency will have ten minutes for an
introductory statement - the DEQ, the DLCD, and the County. Then next steps
and perceived barriers would be discussed. Because of staffing cuts, many of
the people who were intimately involved in the process are no longer available.
Commissioner Luke said that the hand-off should include how the County can
assist.
The auditorium is only available from 5:30 to 9:30, so the meeting has to begin at
6:00 and end by 9:00 to allow time for setup and break-down. The County is
responsible for recording and taking minutes as the DEQ is not required to do so.
The DEQ wants representatives of the community to attend. This brings up a
consideration of whether to invite those who are suing the County on this issue
to attend.
Richard Whitman, Bob Baggett and Joani Hammond from the State will be
there; Commissioner Baney is not sure of any others at this point. There might
be limited public testimony allowed, in a question and answer format,
depending on the amount of time available. This is not a community meeting
but one primarily to discuss process, not solutions.
Commissioner Unger asked if there would be a PowerPoint presentation to
bring everyone up to speed. Commissioner Baney said this would be
considered. The science will not be revisited but there may be a question and
answer portion. The DEQ needs to take the lead and a decision needs to be
made as to where it goes from there.
Commissioner Baney feels this could be another boondoggle, with the
community not getting what it wants, but it needs to be clear who is
responsible. Commissioner Luke said that he feels the meeting is to educate the
public and the DEQ, and the County's position needs to be clear. The public
has spoken and if the DEQ does not take the lead, there is no lead.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 4 of 8 Pages
David Inbody stated that perhaps someone from the community should speak for
the community to indicate where they stand. Commissioner Luke noted that if
one person is chosen to speak, others might not like it. There is no elected person
to do this. Commissioner Baney said she gave the lead to Ms. Hammond so she
can choose someone if this is the direction the DEQ wants to go.
Mr. Kanner suggested that the Board be clear that the County has done what it
can do, and the DEQ has to decide what the next steps are. The County can
support in some ways, but should not do all of the work for them.
Mr. Perkins said that the community has heard the County's answers already;
the community needs to hear answers from the DEQ at this point.
Commissioner Luke suggested that perhaps the Mayor of La Pine could guide
the meeting.
Commissioner Unger asked if nitrates in the river system are also being
addressed. Mr. Anderson said that this is inherent and is a part of the problem,
and the DEQ is aware of this. The Board might want to remind the DEQ of this
concern as well.
Commissioner Baney briefly left the meeting to respond to a phone call from
Ms. Hammond. When she returned, she said that Ms. Hammond is concerned
about e-mails she is getting from La Pine citizens regarding which citizen
should provide input at the meeting, representing the community as a whole.
Commissioner Baney suggested to Ms. Hammond that she handle the meeting
in whatever way she feels is correct now that it is the DEQ's responsibility. It
was decided that there would be a general press release without an agenda at
this point.
It was felt that the DEQ should select whomever they want to speak on behalf
of the local citizens. It was observed that there are many people do not feel the
same way as others, but are too intimidated by those who are more vocal to
speak out. Commissioner Baney added that Ms. Hammond said she wants to
get through the first part of the meeting with the County quickly so she can get
to public input. Mr. Kanner suggested that questions be put on paper so they
can be addressed in a logical fashion, since time is limited. However, the DEQ
and not the County should answer those questions.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 5 of 8 Pages
3. Other Items.
Mr. Anderson said that the study regarding the Sunriver sewer district
expansion proposal has been launched. Various State representatives are
involved, but it is unclear whether the DEQ will issue a finding of no
practicable alternative until they know how this particular project is handled.
The biggest question is the construction costs, and few people will support the
plan without knowing the cost.
Ms. Craghead said that the Goal 11 route can be used, or an existing public
health hazard could be declared that would bypass Goal 11.
Regarding the hearing tonight regarding an event venue Code text amendment,
the applicants for the amendment have withdrawn their application. However,
the hearing has been noticed and must be opened. The question is whether
public testimony should be taken. It does not seem to make sense to do so at
this point.
Mr. Anderson stated that a PowerPoint presentation has been developed that
explains the Board's options. The Board can accept the withdrawal but can also
ask other event venue operators whether they want to testify. This could also
become a County initiated amendment to address the issue. Public testimony
can be taken in general or specifically.
Ms. Craghead said that citizen Gladys Biglor had offered suggestions as to how
to take public testimony.
Commissioner Luke asked if it is even legal for the County to consider this
ordinance in the first place. A decision has been made on a similar type of case
in the Portland area that was not favorable to the operator there, and this case is
likely to end up at LUBA or in the courts.
Through the comprehensive plan process, it would help to look at EFU
properties to see if they are properly classified. Property can be preserved as
open space, as much of it is not that useable as farmland. He has not been
convinced it is legal under State law to allow the event venue use. Ms.
Craghead said that another case was approved in a different part of the State, so
it is still not clear.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 6 of 8 Pages
Commissioner Unger added that he sees bigger issues, which are more and
more conflicts between rural and urban uses. Whether through the
comprehensive plan or otherwise, more needs to done to address these uses and
impacts on a broader scale.
Commissioner Luke said that the County would likely be sued no matter what
the decision is. Ms. Craghead stated that it could go to LUBA. A suit could
come based on freedom of religion grounds, however.
Mr. Anderson stated that limited Code enforcement is being done based on
previous direction from the Board. The question now is, if there is no longer an
application, should Code enforcement continue on those that were in abeyance.
Commissioner Luke said that a deal was made, but now that this has been
pulled it no longer applies.
Mr. Anderson stated that there are events planned for the rest of the summer for
most operators. Commissioner Unger said he is okay with this, but there is a
bigger issue that needs to be addressed through the comprehensive plan. Ms.
Craghead said the deal was that they could have events as long as the text
amendment was in the works. Commissioner Luke observed that people have
made plans for their weddings and other events, and it would be improper to put
them in the middle.
Mr. Anderson stated that the comprehensive plan is more of a broad scope
issue, and may not address this specific type of activity. If there is an
overriding State law, it may not even be legal.
Commissioner Unger said that there are other issues that can impact the quality
of life of people. Ms. Craghead stated that there are a lot of farm-related
activities such as farm stands that are allowed that might also have an impact on
the neighbors.
A lengthy discussion took place as to how to proceed, but no decision was
reached.
Being no further items addressed, the meeting adjourned at 4:50 p.m.
Minutes of Board of Commissioners' Work Session Wednesday, July 15, 2009
Page 7 of 8 Pages
DATED this 15th Day of July 2009 for the Deschutes County Board of
Commissioners.
ATTEST:
' q1LAJ CCU fo(.C ail _
Recording Secretary
OP~
Tammy Baney, Chair
Dennis R. Luke, Vice Chair
6E&I.- UNt
Alan Unger, Commissioner
Minutes of Board of Commissioners' Work Session
Page 8 of 8 Pages
Wednesday, July 15, 2009
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.orgy
WORK SESSION AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 P.M., WEDNESDAY, JULY 15, 2009
1. Overview of Draft ESA Risk Assessment - Dave Inbody
2. Discussion of Regional Groundwater Protection Meeting with the Department
of Environmental Quality (tentatively July 22) - Todd Cleveland, CDD
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
1300 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.
ON
o
N
H
75
.0
E
0
Cb
r
Q)
o,
3
N
0
°
C
m
V
W
a
d
4
~
~
o
C
~
M
71
r
C
4
t
5
41
O
a
%A
C
L
zcl_
0"
111000wo-...
Jones &
ICFStokes
an ICF Intemational Company
Technical Memorandum
Date: April 3, 2009
To: Deschutes County
From: Ted Gresh and John Runyon, ICF Jones & Stokes; Joanne Richter, WPN
cc: Central Oregon Intergovernmental Council (COIC)
Subject: Deschutes County ESA Risk Assessment Evaluation
The cities and counties of Central Oregon (the jurisdictions) are evaluating whether current local
government policies and practices are sufficiently protective of steelhead and their habitat, listed
and protected under the federal Endangered Species Act (ESA). Specifically, the jurisdictions aim
to avoid the "take" of re-introduced steelhead, potential ESA enforcement actions, or third-party
lawsuits.
ICF Jones & Stokes has developed a Risk Assessment Framework to systematically evaluate
jurisdictions' management policies and practices for their potential risks to listed steelhead. The
following tables and text outline our preliminary evaluation of your jurisdiction's codes, policies,
and practices. The evaluation was developed from a review of relevant documents and staff
interviews.
The evaluation is organized within the Risk Assessment Framework and focuses four areas:
1) land use, 2) stormwater management, 3) pest management, and 4) routine road maintenance.
This evaluation will be incorporated in the final report as an appendix and will provide the
basis for summarizing your jurisdiction's activities and developing recommendations.
As outlined in the Risk Assessment Framework, surface and groundwater withdrawals and
wastewater discharge will be summarized separately for each jurisdiction (when it applies) and
not evaluated for their potential risk to steelhead.
Please review the attached evaluation. Your comments should focus on correcting any incorrect
descriptions of your codes, policies, or practices. Where appropriate, please note where we are
missing descriptions of relevant activities.
317 SW Alder Street, Suite 800 • Portland, OR 97204 • Tel. 503.248.9567 • Fax 503.238.3820
www.jonesandstokes.com I www,icfi.com
C
0
cu
LU
Q~
a
co
J
N
M
C6
H
N
O
v
E
E
9
a
m y ro
i a N
8 ~q
a
. V _ •y H
~ p ac F+ u a
i C W d
•C ~~4ee C
m W~F L
9
a>i
a:
z
E
E
k
a
w
A
C
O
N
W
9
a
0
a°
O
m
w
m ,5 $
E
32
c E
'CC3
°c >c v ~ E
~m6 mm;
E ffi $
~8x°58
N 8
8
15
b7 `'a °eug Gi
B
N
h
c4 m
c
ffi
~
~K
~
E
o5'K~"BraA~
•
€ _
O D_u U 1-- H
a ~
U`o E. $ E' rn14
$
m `~2$~n°i°Eo
w.5 BCE 3
g
ooCi3m~a
9 E61
E !F
K `yam C
O
e
~ao
m d
F83 m~ ~o IOU a
~~~~~"g~8~i0gN ~fe g•~
8a~~ 8E~~0
32 E -FL 2
Ji -o
E sa£ ~tS° E
FLEA H.E.Hi g 2 a~ I Fbb
Al
~oE m ~ o.- E ~ m
t8~85=~~~~~s
E 1 ''8 $
T -~y5 $
Cpl ~0
N ~ ~ C ~ gCC 1LjE. (1~
°diA8~ aS
8 h_.E 8 g~ m
€In cg s
=EaEtS _
~ if
S
sni
,m '_sa9
U O O ~ ~ U`$ ~J Tn E
rn
E-fnt
m m Q s~ E ° v c~
N
2 a m'E U a'9` E
Egg a p8
~ l3
E ~ m
m E
a e
0 O ~ Z N u
0
8 g
y
O_
Yo
v
E
0
a:
,Z, m b
E'. o m
~ y R
roNq N ~Y
m Q C t
j U
Q
u u_ y
W
i ~ •C 4 2'j
i
y g N O
y •C4 G
m W~'00
3
0
E
E
fA
u
O
a`
w
V
0
W
m
.z
0
.p
a
kL 0 8 2 c
rn~m'o~ei n
3 'F E
15
8u IN 8 ~ 8
32 s
8~~m~8 88c S.
c b ~ ~n {U, c 8~ p~ i
$
E ~
C
Y b
c
8 m
m m~
c
E E E 8 ~
8 a z
R m N
ee ~ ~ r9 ?
C)' ~ ~ Uad m9
all A
a o
c la r
a E
2
$'E 3 ¢ v a
8 tr
~ E 'E
$ ~ m
V
E
0
y
o $~w
E 32
s
u z
$ B 4
V
8
8 m ~ E
m Z+N
m ~ E n
oB E
o E a $
1.2
N ~
ffi `o
g• N LL
N c O
cgs ma
E~ 1 ~
5
a m
a
m
ma~~~
c
0
cc
W
N
E
0
N
(B
H
0
v
E
E
0
C
.z. m v
o ro
yy N
Z1~ q C
Y
d
m a e ~ m
$ u a
u _u w W .M
~ yY ri uN
i p Q b n
c o ~ °
a
W'~ bo
9
`o
r
E
E
N
d
E
'u
00
N
u
e
a`
70
W
'E
U
0
w
d
0
a°
~ E
ffi
ffi a~ a
mg
0 8 9 E @
0 y~ o 'n?
8,~ 88~a
q~pN E.ap
U m .18 ~ a 2d
8:9 E € e
~~ar amp°m ~ ~~'s~
ffiffim Cosa A
s$E N~~N~ `.Rt
$~Ea 2~ ,~9 ~ ~m ~A Eg
~ Tn ~ E E8t- lib
08'u~~;,(8 Ljg~ g
c a
I I m rn cd O 0 U
I'`zW ~y I
S a L' CCCC7777 5 ~ ~~a~ m S{
mAll I i/f W K~
v ~ m m
.Q r a a ~ b
E 0
m ~
ppB;
~ .t N
s~E€
m~Fa
E'
E
E
I I
cEo~'E
s m 'zE
9
~8P~E
E e
G~ m$
ffi~
o p
t
.kz
p w 'a E
U U o {
~ o O
88°O-~m
a g~
a C
a o
o~~ffi~o
a o~~~E
O ~ ~ 9
Is.
c ~~E~ fg'C?T'~~c
212
0
E . ~:AN
I
E I I I ~ ~ ~°r
HRH~Eog
77
to LL n% S.
~yj pp ~OiyW
~ E
~~5 a zffiz a ffi
~ ~ tl 8
m a
'm ~ S ~ ~ O E ~ LL
g
s
fi
0
e
O
m
E
0
K
m v
o n
m
1 R N ~ Y
1 CY y ~ uy~
u ~ mma (~C
o y y d
C~ g Y u ig
d
0
E
E
rn'
72
y
E
0
E
a
O
W
U
LLI
a
ii
a0
U
32
U U ~ ~
ffi
H
Y 9°~ fi~~ O E
x
~ 1.9
X85
1` 3$__
~mr
t3 E `O ffi £ ¢Q5o ~ yLq
~ 19 ~ Ip i~-' C
$m ~~8 moo8
g ~e 5
EE € ° $
gas ~gag~
8j 9-
'a N
m5Igg
~
110
A
O ~
{fig
-E
~ EK
E W
0
^m I ~2
C3 ma79m
cRR°,~8Eg~&I
C4 ~0
.r ~ in u'f ~ E
U I ~ 'S
g~
ac °g 8-3~
a E
.6 8-1
;
E 0
E o
s~ 1~va`di
3 A $
g 0
E
2~-
g~8 .
~ E E .a
32
0
o9E-
ph
I
E'm a aP N~
- E 'L N
ERR ~ '
U
m
a§ a g
E o E
E o
py "n c 2 S
r E E
E w3E
~ ~ o m
E
A!1-1
aii re Es
m 9 ~
E -
.Q ca
E E 2 E g
E
8a~s8 gg8a~s9
Its!
KL.QN i~ n"Ti~S ~LN is m
Sma
Eyyr ~rE 1,1,'gc11 zy
N mN~'c 2^Ev N m~~'2.2^~3 U~
A£
m m
c Z o ~ 8 ~ ~~8$
_oa y o d E' Na$`~i
G a E
H Z ny •L^ 8 m•~ j a i b ~i
C aN N ~ N ra O LL 9Ni ~ wZ~i a~i
J O Q ~ ~ a Q t~ a 2: O$ m
92 e
b Q m a£ z~ f Os 8 f
m W~L
E _
E
MU
i~
z '9-gm~
N G ~ 9 n
~ ~ i9 c
R m ~
gyp c
Of W
M
`O 3
8 ~
is
i E E
~g
E i E `o
C 3 ~ S € 1a 11 1 !yoga
E t a
a~
m pp
1z
0- 0 E
a
01
0
:J
E
a
it
Technical Memorandum
List of 27 Pesticides/herbicides that require no spray buffers to protect threatened and endangered Pacific
salmon, November 5, 2007.
azinphos-methyl Chlorpyrifos* fenbutatin-oxide
naled
bensulide Diazinon* lindane
phorate
bromoxynil dimethoate Malathion*
prometryn
captan disulfoton methidathion
propargite
carbaryl diuron methomyl
triclopyr BEE
carbofuran ethoprop methyl parathion
trifluralin
chlorothalonil fenamiphos Metolachlor
* NMFS issued a Biological Opinion for Chlorpyrifos, Diazinon, and Malathion in November 2008.
No Spray buffers are required for all pesticides that the Environmental Protection Agency (EPA) determined are "likely to adversely affect"
threatened and endangered Pacific salmon and steelhead.
In January 2001, 38 pesticides required no spray buffers because EPA had not yet determined which pesticides were likely to adversely affect
salmon and steelhead. Since then EPA has narrowed the list to 27 pesticides.
Routine Road Maintenance
Since the County relies on the ODOT Routine Road Maintenance Manual to conduct road
maintenance procedures, this risk assessment does not focus on how the County conducts specific
road maintenance activities, but rather makes recommendation to the County to ensure adequate
documentation exists on how the County conducts road maintenance in the event an incident
should occur that impacts County surface waters. These recommendations are based on ODOT's
training programs and procedures that are part of their maintenance program and describe how
they implement their Routine Maintenance Program.
In order to ensure that the County is committed to conducting road maintenance activities in
accordance with the ODOT manual the County should consider the adoption and utilization of the
following documents:
1. A formal letter of commitment to conduct their road maintenance procedures in
accordance with the ODOT manual.
2. Procedures for the documentation and reporting of their maintenance activities along
roads that cross or are adjacent to surface waters.
3. Adoption of a required training program for routine maintenance personnel. The County
could utilize existing ODOT trainings for road maintenance personnel that include:
a) Maintenance Academy: for new employees, includes presentation of the
Manual and other environmental issues
b) Incident Responder classes, including "Plug and Patch" training on
maintenance responsibilities for spills
c) Basic Hazardous Materials Awareness
d) Erosion and Sediment Control training
ICF JRS 00885.08 April 2009
Technical Memorandum
e) Technology Transfer (T2) programs including Roads Scholars that has
environmental sessions including vegetation management, erosion control,
etc.
4. Create and adopt Resource Maps and Restricted Activity Zone Maps:
a) Resource Maps should provide the general proximity and areas of probability
for natural resources adjacent to County roads.
b) The Restricted Activity Zone Maps define the road maintenance activities and
relate the identified resource (wetlands, riparian area, etc.) to each
maintenance activity.
c) Maintenance personnel would review each map while planning work to
determining appropriate BMPs for each activity.
d) Road Masters should hold Resource and Restricted Activity Zone map
coordination meetings to make sure personnel understand where resources are
located and what BMPs are to be employed.
By adopting these documents and programs the County would create a framework for the Public
Works Department to follow and would inform the public and state and federal regulatory
agencies of their commitment to ensure the ODOT manual is implemented consistently and
appropriately.
ESA Risk Assessment Evaluation ~a Central Oregon Intergovernmental Council
Deschutes County Comments on ESA Risk Assessment Draft Documents
Comments from George Kolb, County Engineer, Road Department
1. We are in the process of updating the Central Oregon Storm Water Manual and
once that is complete, I will take it to the BOCC for consideration of adoption.
2. Table 2, Stormwater evaluation: under recommendations, it states that the
County should consider mapping and providing routine maintenance for the
existing piped stormwater system in La Pine. Since they are a City now, it
seems that would fall under their jurisdiction now but since we are still
maintaining roads, we probably would still be responsible for the system until
the City of La Pine takes over maintenance of all facilities within the City
limits.
3. I have forwarded Table 3, Pest Management Evaluation on to Dan Sherwin to
see if he has any comments.
Comments from Dan Sherwin, Vegetation Manager
• Deschutes County does not apply pesticides, only herbicides. Of 27
listed as requiring no buffer, Deschutes County only uses diuron and
triclopyr BEE.
• All county employees using herbicides are licensed public applicators
making use of calibrated equipment utilizing GPS technology.
• Application of herbicides is primarily guided by label application
instructions established by the EPA.
4. I have forwarded the section on Routine Road Maintenance on to Roger Olson
for his comments also.
Comments from Peter Gutowsky, Principal Planner, Community Development Dept
The Jones and Stokes ESA risk assessment applies a graduated rating to determine
Deschutes County's level of protection and implied liability to a potential take to
threatened steelhead. Regarding land use, Jones and Stokes raise four questions:
1) Are the locations of important natural resources and habitat areas mapped?
2) Do development policies/practices adequately protect riparian areas?
3) Do development policies/practices adequately protect historic stream meander
patterns and channel migration zones?
4) Do development policies/practices adequately protect wetlands, wetland
buffers, and wetland function, including isolated wetlands?
Jones and Stokes' recommendations for Questions I and 4 are right on point. Deschutes
County remains committed to conducting a wetland inventory to gather more
comprehensive wetland data, particularly in South County. This spring, staff applied for
an Oregon Watershed Enhancement Board grant of $35,440.00 to leverage the Deschutes
River Mitigation & Enhancement Program's recent $80,000.00 contribution to establish a
south county Local Wetland Inventory (LWI). A decision is expected in September.
Regarding Question 2, while Jones and Stokes recognizes Deschutes County for
implementing a 100' riparian setback from the ordinary high water mark of perennial or
intermittent streams, they state that vegetation removal is allowable up to 10' from
streams. According to their analysis this action could result in direct impacts to steelhead
habitat. Their analysis however, does not take into account Deschutes County Codes,
Chapters 18.120 & 18.128, which are summarized below.
• No person shall fill or remove any material or remove any vegetation, within
the bed and banks of any stream or river or in any wetland, unless approved
as conditional use (DCC 18.128 or recognized for an exception, 18.120). All
necessary state and federal permits must be obtained as condition of approval
Permit shall be granted only after consideration of certain factors: effects on
water quality, wildlife, and habitat. The ODFW are required to comment.
Permit shall not be granted unless all factors are met:
No practical alternative to the proposed project which will have less impact on
surrounding area
• Essential character, quality, and density of existing vegetation is maintained
The map provided illustrates the National Wetland Inventory specifically in south
Deschutes County. You'll see that the NWI polygon extends beyond the Deschutes, Little
Deschutes, and Fall Rivers. Jones and Stokes should modify their recommendation and
consider revising the County's risk assessment from 1-star to 2-stars [policy/practices
possess some ESA risk]. The finding to support such a position is based on Deschutes
County's unique Goal 5 program which integrates riparian setbacks with regulating
activities that would remove any wetland vegetation within a NWI (DCC Chapters
18.120 & 18.128). Jones and Stokes, similar to their recommendation to Questions 2 and
4, should add that the County's commitment to develop a LWI offers the opportunity to
reengage residents and stakeholders to develop a local approach, following Statewide
Planning Goals 5 and/or 6 to protect significant wetlands based on their natural resource
and/or water quality values.
Lastly, Jones and Stokes states that Deschutes County lacks channel migration zone
protection and limitations for new stream crossings (Question 3). George Kolb and the
Road Department can weigh in as whether the County anticipates new stream crossings.
It's my understanding that there aren't a lot of opportunities to build new bridges due to
the incised nature of the Deschutes River canyon (north of Sunriver to Jefferson County)
and prevailing land use plats in South County. Jones and Stokes underscore this
circumstance in their Summary of Review (See page 3, third bullet).
George Kolb's (Road Dept) comments on new stream crossings:
Right now I don't see where we would be involved in any new stream crossings
as most of our bridge work will be the replacement of existing structures that have
been rated as structurally deficient. That is not to say that in the future there
couldn't be a new crossing over a stream but I looked at our current list of
projects on the TSP and I did not see any projects that would involve any stream
crossings.
Regarding mapping and protecting a channel migration zone, this effort will be aided by
a LWI. Similar to my response to Question 2, Jones and Stokes should consider
modifying their recommendation and consider revising the County's risk assessment from
1-star to 2-stars [policy/practices possess some ESA risk]. Again the finding to support
this position is based on Deschutes County's unique Goal 5 program which integrates
riparian setbacks with regulating activities that would remove any wetland vegetation
within a NWI. The NWI clearly encompasses the channel migration zone. A LWI would
reinforce the approximately location.
Finally, each Jones & Stokes recommendation should highlight the County's current work
program to update the Deschutes County Comprehensive Plan. This process provides
excellent opportunities to reengage county residents and stakeholder about the
opportunities to minimize impacts to steelhead.
Comments from Laurie Craghead, Assistant Legal Counsel
The DLCD manual for model ordinances mentioned in the Risk Assessment is somewhat
urban oriented so it can't be adopted wholesale.
Someone can correct me if I'm wrong, but the County doesn't spray pesticides, the Four
Rivers Vector Control District does. I think the contractor is confusing herbicides with
pesticides and should make that distinction better.
They don't mention the County's Regional Problem Solving chapter in 23.44 that
discusses efforts to abate water pollution and wildfire hazards and to protect wildlife
habitat. They also don't talk about the County's Chapter 11. 12, the Transferable
Development Credit Program, which is part of the RPS to also help with wildlife habitat,
namely deer, and protect the groundwater, the latter of which helps the fish since the
groundwater eventually ends up in the river.
Regional Groundwater Protection
DEQ Meeting July 22, 2009
Deschutes County acknowledges DEQ lead role in regional groundwater
protection. Objective is to determine how the county can assist DEQ efforts.
DEQ actions allowable under existing state law/rules
• Establish a Groundwater Management Area (voluntary management
approach)
o Southern Willamette Valley GWMA
• Adopt a Geographic Rule (require protective action for all permits -
could include advanced treatment)
o Impose a moratorium (prohibit new development until protective
action is taken)
o Pursue public health hazard process to sewers under Goal 11
What additional information does the BOCC need for 7/22 meeting?
• Maps
• Handouts
0 DEQ Correspondence
1- E
Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX(541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: July 7, 2009
TO: Board of County Commissioners
FROM: Paul Blikstad, Senior Planner
RE: Event venue text amendment, File No. TA-08-9
The Board requested a matrix from Planning staff on the text amendment application at the
initial work session with the Board on May 4th. We discussed that draft matrix with the Board at
the July 1 st work session. A public hearing is scheduled on the text amendment for Wednesday,
July 15th at 5:30 p.m.
Department of Land Conservation and Development (DCLD) Regional Representative Jon
Jinings will attend the public hearing.
As the Board considers this amendment to the Deschutes County Code, staff recommends the
Board consider the following policy issues:
1. Generally, if acceptable criteria can be developed, should commercial event venues be
allowed in rural Deschutes County outside of higher intensity areas such as
unincorporated communities and destination resorts, and specifically in the Exclusive
Farm Use zone?
In an effort to address criteria systematically, it is recommended that the Board begin with
the broadest criteria components, thenand then progress to the more narrow.
2. What minimum property size should be required to hold event venues, and how far/close
should the events and associated facilities ("activity area") be located from residences?
3. Should amplification be allowed for all or part of an event, during specific hours of the
day or for specific periods of time? Further, should it only be allowed inside an enclosed
hard-walled structure?
4. Should limits on events be imposed, and if so, how often should they be allowed and
how frequently should they be allowed? Should the operator be required to submit
annually a list of scheduled event dates for the coming year, and be required to submit
any changes to that list that come up?
Quality Services Performed with Pride
5. What type of facilities should be provided or allowed for commercial event venues?
Should permanent or temporary structures be allowed or both? Should temporary
restrooms be allowed, or should permanent restroom facilities be required?
6. Should any new structures be allowed to accommodate these uses or only existing
structures?
7. How should event venues be monitored? Should an owner-occupied home be required
on the property, and is this enough? Should the owner be required to be on site during
events? Should there be an additional on-site event manager/monitor, compliance
officer (public or private), etc.?
8. What should the review process be for events venues and operators? The proposal is
for a CUP process. Is this process adequate? Should annual renewal or review of the
CUP be required similar to a home occupation? Should the operator(s) be licensed and,
if so, should the license be renewed or reviewed annually?
9. Should the permit run with the person/owner rather than with the land?
10. Should the restrictions requested by the Oregon Department of Fish and Wildlife be
placed into the revised code language.
The public hearing testimony on the proposed text amendment may help the Board decide what
positions to take on these issues.
Staff will seek the Board's direction on how to move forward following the testimony at this
public hearing. For example, staff can provide alternatives or revised text for the Board's
consideration and public testimony at a subsequent public hearing.
If you should have any questions, feel free to contact either Nick Lelack or me at your
convenience.
i
July 13, 2009
Nick Lelack, AICP
Planning Director
Deschutes County Community Development Dept.
117 NW Lafayette
Bend, OR 97701
RE: Event venues as private parks
Dear Mr. Lelack,
We received your inquiry requesting clarification from the Department of Land
Conservation and Development on the legality and appropriateness of defining private
parks in Exclusive Farm Use (EFU) zones to include commercial event venues. We
appreciate the many complex and interrelated issues Deschutes County is considering and
weighing in developing a reasonable approach to accommodating event venues, and in
particular weddings, in outdoor settings. We trust you understand that our concerns on
this issue extend beyond Deschutes County to other counties across the state that may
choose a similar approach to Deschutes County in accommodating commercial event
venues.
Both Jon Jinings, Central Oregon Regional Representative, and Katherine Daniels, Farm
and Forest Lands Specialist, of our staff have provided written, email and spoken input
into the county's process since November 2008, attempting to provide helpful guidance.
This letter addresses the department's view of revising county code to allow event venues
as private parks in EFU zones.
We know you have consulted with your county counsel regarding the legal aspects of the
issue, and we shall not attempt to provide legal advice here, but we would like to share
some information regarding case law. As you know, the absence of a definition in state
statute and administrative rules as to what constitutes a private park has placed counties
in the position of defining this term largely for themselves. Because of this flexibility, the
private parks provision has become an avenue to approve uses that seem reasonable but
might not fit well under other provisions of law, including loud and potentially
controversial activities like public and private shooting ranges, sporting clays courses and
music concerts.
A few LUBA cases have given counties the discretion to define private parks to include
paint-ball activities and motocross tracks, indicating a broader tolerance for what can
constitute a private park in EFU zones; such uses arguably require a rural location. More
importantly, the uses described in these cases were all clearly forins of recreation. For
example, in Spiering v. Yamhill County, 25 Or LUBA 695 (1993), the Court of Appeals
concluded that a "park" is a tract of land set aside for public recreational use. Commercial
Deschutes County -2- July 13, 2009
event venues have not been demonstrated to be forms of recreation. Therefore, it is not
known whether the courts would construe commercial event venues as being a type of
recreation.
Several Oregon counties allow weddings (and some broader event venues) as accessory
uses to commercial farms, wineries, nurseries or bed-and-breakfast establishments,
sometimes, though not always via home occupations in EFU zones under ORS 215.448.
We are not aware of any counties that permit event venues as a stand-alone use. The
statute requires that home occupations be operated "substantially" in the dwelling or
other buildings normally associated with uses permitted in the zone. Where weddings and
receptions are anticipated to occur outdoors, which is usually the case, this is a problem
as the standard most likely cannot be met.
A requirement that event venues be accessory to agriculture has three advantages. First, it
makes clear that agriculture is the primary use of the property. This raises the question:
how should accessory be defined? Guidance can be found in existing statutory
references, such as the'farm stand requirement that no more than 25 percent of a farm
stand's sales may be from incidental items and activity fees, or the processing facility
requirement that at least 25 percent of farm crops processed come from the farm
operation.
Second, an accessory requirement limits the functional use of the property devoted to
event venues to a small part of the whole, in much the same way that a small part of a
public park and not the entire park may be used for a wedding or other event venues.
Third and finally, an accessory requirement provides the opportunity for a secondary and
supplemental means of income for commercial farmers, rather than operating as a draw to
attract new non-farm residents and create new non-farm parcels in EFU zones.
We believe that the county's proposed standards do not yet provide adequate protections
for on-site, adjacent and nearby agriculture and that they open up EFU zones in an overly
broad manner to a type of commercial use that has no connection to agriculture. We have
concerns in this regard.
First, we believe that commercial event venues should either meet the minimum lot size
of the EFU zone or be shown to be accessory to a commercial farm use, if not both.
Allowing commercial event venues to be the primary use of a property could lead to a
proliferation of such uses scattered throughout EFU zones. To allow parcels as small as
10 acres to be used for such purpose will exacerbate this impact.
The staff report notes that county staff had originally proposed requiring farm use to exist
on a property used for an event venue, but now finds that it is not necessary and could
create a conflict where private parks are proposed on high-value farmland. This is
erroneous reasoning. Whether private parks are primary uses on their own parcel, or
secondary uses on a parcel primarily used for farming, they are still not allowed on high-
value farmland.
Deschutes County -3- July 13, 2009
Second, DLCD is concerned with the lack of required consultation with adjacent and area
farmers as to farming practices that could be adversely impacted by traffic or other
factors connected with large commercial events. We believe such advance consultation
and acceptable mitigation would be a necessary part of the satisfaction of the ORS
215.296 criteria for non-farm uses and should be specified in text amendment language.
To summarize, it is unclear whether commercial event venues can be considered to be
recreational uses. If determined to be permitted, we believe that carefully circumscribed
provisions for such uses may be crafted if they 1) provide that the use is accessory to a
commercial farm, winery, nursery or bed-and-breakfast use; 2) meet the minimum lot
size standard of the EFU zone; and 3) provide for consultation with nearby farmers,
including mitigation of impacts.
We appreciate this opportunity to offer comments to the county as you deliberate this
proposed text amendment. We would be happy to answer any further questions or
provide any additional information. You may contact Katherine Daniels at (503) 373-
0050 ext. 329 or katherine.daniels@state.or.us, or Jon Jinings at (541) 318-2890 or
jon.jiningssnstate.or.us.
Sincerely,