2009-1512-Minutes for Meeting October 21,2009 Recorded 11/2/2009COUNTY OFFICIAL
NANCYUBLANKENSHIP, COUNTY CLERKDS Yd ~V~9.15i7
COMMISSIONERS' JOURNAL 11/02/2009 02;31;29 PM
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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, OCTOBER 21, 2009
Present were Commissioners Tammy Baney, Dennis R. Luke and Alan Unger.
Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy
County Administrator; Dave Inbody, Assistant to the Administrator; Laurie
Craghead, Legal Counsel; Tom Blust and George Kolb, Road Department; Tom
Anderson, Nick Lelack, Peter Gutowsky, Peter Russell and George Read,
Community Development; Hillary Borrud, Richard Coe and Erik Lukens of The
Bulletin and Doug Johnson of KOHD TV; and six other citizens.
Chair Baney opened the meeting at 1:30 p.m.
1. Presentation of ESA Risk Assessment, Final Report.
Katrina Van Nis of Central Oregon Intergovernmental Council, John Runyon of
ICF Jones & Stokes, and Joanne Richter of Watershed Professionals Network
gave a PowerPoint presentation on potential risks related to the Endangered
Species Act.
Commissioner Unger asked if this document was developed in response to
government entities' need to know habitat impacts. Mr. Runyon said it is.
The focus is mid-Columbia steelhead, which were listed as threatened in 1999.
The Oregon Department of Fish & Wildlife Steelhead Conservation and
Recovery Plan includes reintroduction of a population of fish in the Metolius
and Whychus Creek, as well as Crooked River and Round Butte Hatchery
stock. There are special considerations regarding developing an experimental
reintroduction rule.
Mr. Runyon explained the questions affecting the project, such as the "taking"
of fish in various ways (including affecting fish habitat), practices and
mitigation, and the irrigation districts' Habitat Conservation Process.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 1 of 14 Pages
He feels that the irrigation districts are wise to address this issue, since they
directly impact the rivers in a variety of ways.
The processes of land use, stormwater management, pest control (pesticides)
and routine road maintenance. The cities are affected by these and others.
The evaluation approach was broad, addressed by best management practices,
links to steelhead habitat, and ESA case law review.
Commissioner Baney asked about the impact of fertilizers, which can also
affect water quality. Mr. Runyon replied that there appears to be no case law in
this regard so it was not addressed specifically. He said the biggest issue by far
has been water withdrawal.
The focus is on legal liability, under the following categories:
• Policies and practices adequately address ESA risk at this time
• Possess some ESA risk
Direct link and risk to water quality
Key limiting factors in this region are hydrologic regime (flows), channel
morphology (channelization), floodplain condition (riparian vs. development),
passage (low flows and diversions); and water quality (temperature, which is
often associated with low water flow). These items were used for evaluating
local impacts.
Mr. Runyon presented a map showing where steelhead are present in the region.
They were present in Crooked River, Deschutes River and Whychus Creek,
either through migration, spawning or rearing.
There is a risk that County activities could have a direct impact on steelhead.
The County does not participate in high-risk activities, such as water diversions,
that could result in a direct "taking".
However, activities can indirectly affect steelhead. These are often cumulative,
and could include changes in riparian habitat, floodplain function, erosion
control and similar practices.
For Deschutes County, land use has some moderate risk, as does pest control
and routine road maintenance. A larger risk exists regarding stormwater
diversion.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 2 of 14 Pages
Commissioner Luke pointed out that the County does not have paved roads
with sidewalks and curbs like the cities do. More often, there are swales to
divert the water in a more natural way. Joanne said that there is no explicit
implementation process in the development control manuals for the County or
other entities.
Mr. Runyon pointed out that there are safeguards in place, but some activities
and practices might need to be incrementally modified over time.
Land use issues should be addressed by mapping all wetland areas, especially in
the south County. There also should be more restrictive vegetation removal
limitations within riparian corridors. Mapping and, if appropriate, protecting
channel migration zones, should be done. Recent National Marine Fisheries
Services guidance indicates that there should be revisions in floodplain
development requirements to avoid, minimize and/or mitigate impacts on
floodplain habitat.
Tom Anderson asked if the enforcement of existing regulations could be
modified to handle this. Mr. Runyon thought this would be appropriate.
Mr. Runyon noted that some FEMA actions have been criticized.
Commissioner Unger asked if reservoirs, which cover flood control, impact the
situation. Mr. Runyon replied that the County's focus is on other issues.
Central Oregon Stormwater Manual has been tailored to local conditions and is
appropriate for local entities to adopt.
The City of La Pine has some issues with piped stormwater systems discharging
untreated stormwater into wetlands adjacent to the Little Deschutes River.
Joanne said that vegetated swales could be used for a stormwater treatment
devices. Low-impact development techniques promoted impervious surface
reduction, the on-site retention of stormwater and minimizing clearing of native
vegetation.
There is one key area of risk for Deschutes County. There are potential liability
risks involved.
Adopt the erosion and sediment control measures described in COSM, where a
direct link might exist. Also, a stormwater utility or other mechanism to fund
stormwater program implementation over time is important. Ms. Said that
there could be a variety of ways to fund this.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 3 of 14 Pages
Pest control management is minimal, but it is recommended that there be "no
spray" buffer zones. Routine road maintenance is straightforward; the County
is already using the ODOT road maintenance guide, which was adopted by
NMFS. It is important to document how this is being implemented.
The timeline for rulemaking and designation is unknown at this time.
The recovery plan says that if the entity has an approved recovery plan in place,
and is working in concert with other local entities; there may be state or federal
funding to address recovery actions. Other groups may be able to obtain
funding if their activities tie in with the County's.
Commissioner Luke asked about Crooked River Ranch. Ms. Said that BLM
property was examined and the water quality of some springs were examined.
Many of these springs are impacted by farming activities.
Nick Lelack said that this is a good opportunity since the comprehensive plan is
being updated at this time. This document could be adopted as part of the plan.
Dave Kanner stated that the impacts of road maintenance in some areas are
clearly not the same throughout the entire county. Most of the county would
not be impacted by stormwater issues. Implementing changes may have no
discernable advantage in most areas. Mr. Runyon stated that this would
primarily have to be implemented where a potential impact exists. Ms. Added
that some language could be added to cover those area.
Mr. Kanner said they talked specifically about herbicide control, and believes
that the County has already been found to be doing the recommended actions.
Dave Inbody added that the County uses basically two herbicides only. Mr.
Runyon advised that they make sure they are actually in compliance with
current practices.
Commissioner Unger said that the big picture shows that the County has some
challenges but has been very proactive during this process.
2. Discussion of La Pine Comprehensive Plan.
Deborah McMahon and James Lewis said they were assigned the La Pine
comprehensive plan. Citizen input and public hearings have been ongoing.
The primary emphasis is to build on what is in place today. (She referred to an
oversized map of the area.) All citizen involvement efforts and meeting
minutes can be found on the La Pine city website.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 4 of 14 Pages
The major issue for La Pine residents is to maintain livability. Also,
consideration must be given to BLM for a potential sewer treatment plant and
other infrastructure. Wildfire reduction was also considered.
James Lewis said there is an existing land use pattern, and how to create unique
neighborhoods must be considered so that needs will be addressed and the areas
can work together. There are three distinct areas: the core city, the forested area
in between that is controlled in most part by the County, and Wickiup Junction.
Land use needs to be convenient and viable for all areas.
They are not to the zoning stage yet. As a result of considering future changes
due to, for instance, an interchange at Wickiup Junction and a new school, the
highest and best land uses need to be considered.
Commissioner Luke asked about the buffer zone along the existing highway,
which will be impacted by an interchange. Mr. Lewis said that transition areas
would be considered as a part of master planning.
Commissioner Unger asked about a population forecast, the urban growth
boundary and other issues. Ms. McMahon said that population density is used
to plan and calculations verify there is plenty of land inside the city limits, and
there is no need to expand the urban growth boundary at this time. The twenty-
year projection is for 3,000. There are about 3,000 vacant acres inside the city
limits, much of it for open space but plenty available for development.
Commissioner Unger noted that the citizens could develop cluster
developments that allow for a lot of open space, much different from what other
cities have been able to do.
Chair Baney asked if there was any conflict between Wickiup Junction and La
Pine core residents as to how things should develop. Ms. McMahon said there
was a lot of interest in linking up the areas and most did not want a commercial
strip.
Commissioner Luke asked about the 500 feet of County land taken for this use.
Ms. McMahon said this would be a corridor to the open space land. Mr. Lewis
added that there was a 200 foot corridor anyway, and a migration area for
animals. An additional 80 feet would be for setbacks. It totals about 10 acres,
translating to about 50 lots that would be lost. The gain to the community
would be green space and a link for recreational opportunities.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 5 of 14 Pages
Mr. Kanner asked if a transition area would be written into the comprehensive
plan. Mr. Lewis replied that zoning code language would specifically address
transition zone areas and what uses are to be allowed. The developer would
have opportunities to be creative.
Ms. McMahon said that they would take the standards used today and create
greater flexibility in the density transfer potential. Laurie Craghead asked if
regional problem solving for the neighborhood was taken into consideration.
Ms. McMahon indicated that it had. Mr. Lewis said they got input from
citizens as to what they thought was important to the community, and the need
for transition areas and neighborhoods. They also considered the needs and
input of the County. Ms. Craghead stated that the property was obtained to
address groundwater issues. Ms. Lewis said that small commercial or mixed
use could still maintain this.
Ms. McMahon wants to make sure the same opportunities are available in all of
the areas. Mr. Lelack added that language regarding the transition parts are
pretty general. The findings to justify the comprehensive plan should
specifically state the transition areas.
Ms. McMahon said they would like to have some collaboration policy to get the
corridor transferred. Chair Baney indicated that there are other things that
should be added as a part of the package. Commissioner Luke said that this all
needs to be contingent on the road project actually being done.
Commissioner Unger asked about the privately owned property and federal land
and how the corridor relates to them. The rights of way need to go somewhere.
Mr. Lewis said that the various jurisdictions need to work together so the
greenways connect. A consideration is the private property, however.
Commissioner Baney said that there is property that is being held in trust for the
City at this time, but potential future costs are a consideration.
Mr. Anderson stated that there is a private citizen who feels that his property is
zoned residential but he feels it should be commercial. He is working with the
various entities on this. Mr. Lewis said it is residential but there is commercial
use on it from years ago.
Ms. McMahon said they were asked whether there are benefits to bringing in
specific property, such as that used by the rodeo grounds. Commissioner Luke
suggested that this should be in the city so they can appropriately regulate it.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 6 of 14 Pages
Commissioner Unger asked that this use does not necessarily have to be in the
urban growth boundary, but he wants to make sure it has the services it needs.
Ms. McMahon said it would be for specific activities.
Mr. Anderson indicated that he would support inclusion in the urban growth
boundary, primarily for groundwater and environmental protection. Mr. Lelack
added that uses could be restricted to rodeo or similar uses.
The group then discussed the timing of the process. Mc Mahon said it is
important to the citizens to have areas that interface and transition in their uses.
Commissioner Unger asked if there might be a future opportunity to have La
Pine contain a regional sewage treatment plant. Ms. McMahon said they are
looking to make sure that there are no conflicts and that nothing will hem in this
potential use.
Mr. Gutowsky said the County Planning Commission will eventually make
recommendations to the Board of Commissioners, but those recommendations
could be passed on to the City Council. Commissioner Luke noted that the
Planning Commission for the City of La Pine would be looking at different
things, however.
Mr. Kanner said that the County is a major landowner in that area. He asked
about the draft industrial development portion and LIGI. Ms. McMahon stated
that economic development will be properly developed but leave enough area to
avoid conflicts. There did not seem to be a need for expansion, but there are
areas in the Wickiup Junction area that might be suitable for industrial use.
Mr. Kanner stated that a concern was that the policies are so subjective, the City
can indicate they do not want certain uses allowed. Commissioner Unger added
that industry has to have certainty that their use will be allowed. Ms. McMahon
stated that the zoning ordinance would address this issue. Mr. Lewis said that
there is no plan to restrict or hinder industrial development in that area.
Mr. Lewis stated that there is a group still interested in exploring an airport in
La Pine. Commissioner Luke said that there was a study done on this at one
time, but having it near the sewage treatment plant would be hazardous because
of the birds there.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 7 of 14 Pages
Mr. Gutowsky indicated that a Measure 56 notice has been done to alert citizens
of the work they are doing. Once that this gets to the Planning Commission at
the County, the County will have to develop its own rules. The County has not
yet done an ordinance in this regard; usually it is done at the same time with
cities. Laurie Craghead stated that there will have to be a new measure 56
notice at the County level.
3. Status Update on Deschutes County Transportation System Plan (TSP).
Peter Russell presented a map of the area showing road usage levels. Most
County roads are not impacted by large amounts of traffic but there are some
locations that will need future improvements.
There are two service levels. One is delay, which is at intersections; but this
study looks at movement. If there is too much traffic for the existing lanes,
lanes may need to be added. Tom Blust indicated there are some areas where
county roads and State roads come together, causing intersection issues. Two
areas are considered sensitive now, including Deschutes Market Road and
Burgess Road.
Mr. Russell has been involved in obtaining input about transportation issues,
and the biggest changes to the Transportation System Plan will consider the
Bend Airport intersection, the Redmond Airport and its runways, and how
traffic flows might be handled in Terrebonne.
Regarding bicycle/pedestrian uses, various groups have been involved but there
is no designated bike routes in the TSP. Most County road have a fairly low
volume, so are considered accessible to bicycles. The cycling community
would like to have designated bike paths or lanes. If the fog line is a certain
width, a wider shoulder is needed and sometimes it is not possible to obtain that
land.
In regard to 19th Street, there is a possibility of the Trans-Canada natural gas
line being used for cycling. Mr. Blust said the right of way will be about 100
feet, but separating it is expensive and difficult to maintain. Chair Baney stated
that she did not feel that the County agreed to take on the maintenance of trails.
Commissioner Unger said that Bend is known to be a popular cycling area, and
more people are moving here who want to take advantage of that. This should
be included in the plan. They should not necessarily just look at the traditional
ways to do things.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 8 of 14 Pages
Mr. Russell indicated that some roads are not considered that safe by the
cycling community. Also, the pedestrian community wants more pedestrian
trails on the TSP. This would have to be pursued with the agency that owns the
property, but they feel it should be on the plan so that those possibilities can be
considered. Commissioner Unger wants to see this pursued so that viable
opportunities can be investigated. Commissioner Luke suggested that he would
like to see how other counties have handled this.
Chair Baney stated that the community of Tumalo would like to see some
linkages, and funding might be available if this is included on the TSP. Mr.
Russell said that it is easier to be an applicant if it is already on the plan. It
needs to be aspirational and clear that the County may not necessarily maintain
these improvements.
Mr. Russell said that he hopes to get the draft TSP model to the Board in early
2010. The grant expires in June 2010.
Commissioner Unger asked about how this addresses the roads that exist within
the communities, such as Terrebonne and Tumalo. Mr. Russell said that the
map was developed in 1998 and revised a few years later. This included
sidewalk plans.
Commissioner Unger said that ODOT would like to see local traffic use local
roads and not the highways. He asked if there is a secondary access to Crooked
River Ranch. Mr. Blust said there is a connection to 31St Street in the area, as
well as Holmes Road to Highway 126. Commissioner Unger feels that there
should be roads that could be extended to accommodate local traffic.
Mr. Russell said that financing plans have to be updated since the figures in the
existing plans are outdated. Some ideas are system development charges, a
regional gas tax, bonding, or a fee on studded tires. Commissioner Unger said
the fee on studded tires should be more of a state or regional issue.
Commissioner Luke said there is the ability to add a local registration fee instead.
Mr. Russell stated that ODOT is doing the traffic model for Deschutes County
now, and this work should be done by mid-December. ODOT is looking at
more aggressive access management policies regarding highways. He is
working with Community Development on notice issues, and is trying to keep
the neighborhoods and communities in the loop.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 9 of 14 Pages
In regard to Terrebonne, citizens are concerned about Lower Bridge Way; they
would like an interchange but located further north. A couplet was discussed as
well, along with a traffic signal. They also talked about a by-pass on the east
side, near the railroad.
Mr. Russell said that the O'Neil Highway area improvements were never
adopted into the previous TSP. A grant is being pursued with the City of
Prineville railroad, and some decisions will have to be made regarding this
potential realignment. The public needs to be part of the process.
Mr. Russell said that ODOT is pushing to extend Barclay Road outside of
Sisters. There is also a Central Oregon rail plan, which mostly addresses
crossings in the cities, but does include the crossing at Baker Road in Deschutes
River Woods.
Commissioner Unger stated that he feels the County should have some kind of
transit plan, like the cities have to provide. He asked if this has been addressed
as much as it should, other than park and ride facilities.
Mr. Russell provided that the need for fixed route transit exists mostly in the
cities. Commissioner Unger noted that perhaps improvements could be
considered for additional park and ride facilities, bus stop locations and so on.
There may be transit between the cities in the future.
The bicycle/pedestrian conversation will be postponed pending further
discussion, and Mr. Russell will bring back what ODOT has planned for O'Neil
Junction. The plan will then go before the Planning Commission process, and
they will make a recommendation to the Board.
4. Update of Commissioners' Meetings and Schedules.
Chair Baney said she has to attend the Ten-year Plan to Address Homelessness
on Friday, as Chair. The Department of Environmental Quality is having a
meeting in Klamath Falls the same day so she cannot attend both. She feels
that the DEQ needs to have some face time with someone from Deschutes
County. Commissioner Unger stated that he could attend the local meeting with
Erik Kropp on behalf of the County.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 10 of 14 Pages
5. Other Items.
The Board then went into executive session under ORS 192.660(2)(f), Exempt
Public Records. After executive session closed, the following action was taken.
Legal Counsel was asked to put the motion in the proper wording, as follows.
In response to the most recent request from the Bulletin for the release of
certain documents relative to a disciplinary action related to an employee's use
of a County computer to conduct a private business, and based upon the District
Attorney's letter of October 22 (date in error, should be October 21), that the
County Administrator be directed to provide the Bulletin with a redacted
version of the disciplinary action imposed without disclosing the identity of the
employee.
LUKE: So move.
UNGER: Second.
VOTE: LUKE: Yes.
UNGER: Yes.
BANEY: Chair votes yes.
The most recent District Attorney letter is to be entered into the record.
Commissioner Luke observed that the recent meeting with two Jefferson
County Commissioners ended up turning into a public hearing. He asked if the
Board intends to have another vote regarding the closure of Wimp Way, or are
false expectations being given to the public.
Chair Baney stated that the process did not work in this situation. She feels that
the engagement of the Jefferson County Commissioners was important. There
was information included in the findings that is now under dispute.
Commissioner Luke said that the Chair of the Board of Jefferson County met
with ODOT and indicated the road should be closed. People did not partake in
the process, which was a lengthy one. That is not the fault of the Deschutes
County Board. Chair Baney stated that she feels ODOT was not interested in
public input, and the people feel they need to be heard.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 11 of 14 Pages
Commissioner Luke asked if the Board is going to hear this again, so he can
prepare. The people who drive Highway 97 also need to be heard. It is a very
dangerous intersection. A school bus could not make that stop if someone
blocked the road while turning, and more information is needed from the school
district in this regard. The Sheriff is only a few minutes away.
Commissioner Unger said he did not agree with all that was included in the
letter, but some needs to be considered. Chair Baney stated there needs to be
two ways out of the area.
Commissioner Unger stated that a decision was made, and consequently work
was done by ODOT, and a compelling reason needs to be known to revisit it.
But the other issues are secondary. There needs to be a viable option to
reconsider this. It is something to which ODOT needs to be responsive. There
is a plan in place that needs to be considered. Perhaps there are options, such as
a refuge in the road at Wimp Way for safety reasons.
Chair Baney feels that the answer seems to be what was already presented. She
does not feel that the process was wrong in intent, but there are many people
who are saying that they were not heard, and Jefferson County has questions
and so does she. The right decision is to revisit it, and if the result is the same
that strengthens the decision.
Commissioner Luke said this process went well over three years. There were
meetings in Terrebonne and Crooked River Ranch. They had every opportunity
to become engaged. All of the cities voted to make Highway 97 an expressway,
resulting in limited access. ODOT's job is to make it a safe highway without
being impeded. The process did not fail. People just did not get what they
wanted; in this case, it is to turn left onto the highway. This is a dangerous
intersection.
He added that if some kind of traffic separation could be put in, that is okay, but
there was not enough money to finish this to make it safe. The traffic will
increase in flow and speed. Some roads will have to be closed whether people
like it or not. The process worked like it was supposed to, and ODOT spent a
long time listening to people. Some people tried to defend the closure and were
booed at meetings. To leave it the way it is would be a mistake. If the Board
changes its directions at this time, credibility will be lost. It takes years to
develop a relationship with this kind of agency.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 12 of 14 Pages
Chair Baney said that it is her understanding that there has never been a death at
that intersection. There are few accidents each year. Some people might need
emergency services through there. She wants to keep it open as is, but wants to
make sure that the proper process has been handled. Some statements just do
not stack up.
Commissioner Unger stated that the County should not change its mind unless
that can be defended. The transportation chair and others should understand
why this would be considered. Highway 97 is an expressway, and freight
movements are to be protected, but if there is only one road, access is needed
and it should be safe. If a safe access could be made, and it should be done.
ODOT will say they improved Lower Bridge.
Commissioner Luke asked if the Board wants to discuss this further with
Jefferson County.
Chair Baney said she is not in favor of moving forward with Wimp Way
remaining open as it is now. It will be open for ninety days, and perhaps a
traffic study would show that the Lower Bridge Way improvements have
helped. Commissioner Luke said that road was closed down entirely when the
railroad bridge was built. No one complained about it then. Governments need
to base decisions on firm agreements. Chair Baney said that she wants to know
that the Lower Bridge Way improvements are working. If they do not have the
money and it does not work, there is a bigger problem. This is a regional issue.
Commissioner Unger said that he does not think a study is merited. ODOT can
watch at peak times to know if the stacking is not working. Commissioner
Luke said that Wimp Way would stay open for 90 days, so it will not be known
until that closure. Commissioner Unger stated that the number of people using
Wimp Way is small and probably will not affect Lower Bridge. The issue is ten
or twenty years from now.
Chair Baney said she does not want to be disrespectful to agencies.
Commissioner Luke said that ODOT has been given direction. He is concerned
that there will be a lack of trust and other state agencies may be affected by it.
The process was the same process that is followed on all ODOT projects. Not
everyone will be happy with the result.
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 13 of 14 Pages
Commissioner Unger said that there has to be compelling interest to reverse a
decision. He would like to discuss why it was closed in the first place, and if
there are reasons not to close it. Most of the reasons to keep it open did not rise
to that level. He would like to know if there could be a left-in and left-out
refuge safely added. Commissioner Luke said yes, it just takes money. Chair
Baney stated that if it is that important to Jefferson County, they need to be told
that the answer is, it can be reopened if it is a big enough priority for them to do
something about it. They will say they do not have the money. The community
will have to come forward if it is that important to them. They cannot expect
ODOT or the counties to have to do this for them.
Commissioner Unger wanted to know if ODOT is able to show the changes
already made at Lower Bridge have had an impact. He added that work needs
to be done to make a secondary access, perhaps not just for emergencies.
Commissioner Luke said that there are possibilities through BLM land, but the
road would have to be improved and there is always a money problem.
It is expected that Jefferson County will send a list of what they want to discuss.
Being no further items addressed, the meeting adjourned at 5:50 p.m.
DATED this 21St Day of October 2009 for the Deschutes County Board
of Commissioners.
Tammy Baney, Chair
,CZ
Dennis R. Luke, Vice Chair
ATTEST:
Alan Unger, Commissioner
Recording Secretary
Minutes of Board of Commissioners' Work Session Wednesday, October 21, 2009
Page 14 of 14 Pages
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, OCTOBER 21, 2009
1. Presentation of ESA Risk Assessment, Final Report
2. Discussion of La Pine Comprehensive Plan - James Lewis & Deborah McMahon
3. Status Update on Deschutes County Transportation System Plan (TSP) - Peter
Russell
4. Update of Commissioners' Meetings and Schedules
5. 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.
Ifyou 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.
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MEDIA NOTICE
Tuesday, October 20, 2009
For Immediate Release -
Contact: Dave Kanner, 388-6565
The Deschutes County Board of Commissioners
Plans to Meet in Executive Session
Wednesday, October 21, 2009 at 1:30 p.m.
In the Allen Meeting Room
1300 NW Wall Street, Bend
The Board will be meeting in Executive Session under
ORS 192.660(2)0, Exempt Public Records
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06
CENTRAL OREGON ESA RISK EVALUATION
SUMMARY: FINDINGS AND
RECOMMENDATIONS
PREPARED FOR:
Central Oregon Intergovernmental Council (COIC)
Redmond, OR
Contact: Katrina Van Dis
PREPARED BY:
ICF Jones & Stokes
317 Alder Street, Suite 800
Portland, OR 97204
Contact: John Runyon
503/248-9507 x300
September 2009
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ICFStokes
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ICF Jones & Stokes. Central Oregon ESA Risk Evaluation: Summary and Key Findings. September.
(ICF J&S Project 00885.08.) Portland, OR. Prepared for COIC, Redmond, OR.
Executive Summary
Steelhead trout, which are listed as threatened under the Endangered Species Act (ESA), are being
reintroduced into the Upper Deschutes River Basin (Upper Deschutes Basin). 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 and reduce the
potential of ESA-related enforcement actions.
The Upper Deschutes Basin jurisdictions participating in this evaluation include Crook, Deschutes
and Jefferson counties, and the cities of Bend, Prineville, Redmond, and Sisters. The cities and
counties want to support successful reintroduction efforts and enhance the environment and
achieve regulatory predictability and protection from take liability.
The report describes the status of ESA-listed steelhead in the Upper Deschutes Basin and outlines
ICF Jones & Stokes' evaluation of the jurisdictions' policies and practices to determine their potential
for take of listed steelhead. Land use planning, stormwater management, herbicide and pesticide
management, and routine road maintenance operations are evaluated for all the jurisdictions.
Municipal water diversion, groundwater withdrawal, and wastewater discharge is examined for the
participating cities.
The Middle Columbia River steelhead were ESA-listed in 1999, and the listing was revised in 2006 to
delineating only anadromous steelhead (meaning those that spend part of their adult period in the
ocean) and not the resident form (i.e., rainbow trout). The Oregon Department of Fish and Wildlife
(ODFW) has developed a draft Conservation and Recovery Plan for Oregon steelhead populations in
the Middle Columbia River steelhead population segment, including the Upper Deschutes Basin
populations. The plan establishes a nonregulatory framework for implementing strategies and
actions to recover steelhead populations.
The dams that were constructed on the mainstem Deschutes River in the late 1950s and early 1960s
cut off the migration routes of steelhead and salmon to the Upper Deschutes Basin. With the recent
federal relicensing of the dams, the co-owners of the dams-Portland General Electric and the
Confederated Tribes of Warm Springs-are developing facilities for fish bypass. In anticipation of
the bypass facilities, juvenile steelhead were released into Whychus Creek beginning in 2007 and
the Crooked River basin in 2008. The National Marine Fisheries Service (NMFS) is pursuing
rulemaking to designate the steelhead above Pelton Round Butte Hydroelectric Project as an
"experimental population" under section 100) of the ESA. During the period when experimental
population is in effect, the Upper Deschutes Basin population would be treated as proposed for ESA
listing, no critical habitat would be designated, and the rule will provide limits to ESA legal liability.
Findings and Recommendations
The risk exposure to ESA enforcement actions or third-party lawsuits enforcement actions resulting
from the jurisdictions' policies and practices is evaluated based on the application of best
management practices (BMPs) and the presence of steelhead trout in the affected waterways. The
evaluation was informed by guidance on BMPs that has already been developed to assist local
governments in the modification of their activities to comply with ESA requirements for salmon and
steelhead.
In areas of the cities or counties that contain waterways where steelhead trout are (or will be)
reintroduced, the jurisdiction has more ESA risk because its policies and practices can impact water
quality and riparian habitat that has direct pathways to portions of the system where fish are
Central Oregon ESA Risk Evaluation: ES 1 September 2009
Summary of Findings and Recommendations ICF AS 00885.08
Central Oregon Intergovernmental Council
present. In the City of Bend and the counties upstream from steelhead trout-bearing portions of the
Upper Deschutes Basin, it is difficult to directly link the activities to steelhead trout population
effects or modifications to aquatic habitat. Because there are more limited pathways in these
upstream areas that can affect steelhead trout populations or aquatic habitat, there is less
ESA-related risk. For the City of Redmond, the ESA-related risk is further reduced because there are
no steelhead present in the city or direct pathways to waterways were steelhead are or could be
present.
If a jurisdiction does not authorize or participate in high-risk activities such as water diversions,
there is minimal risk that the jurisdiction's activities could directly cause steelhead trout mortality.
For the most part, the jurisdictions are applying BMPs in a manner that protects ecological
processes and water quality that support steelhead trout populations. Correct application of the
BMPs limits potential that the jurisdictions' policies and practices can affect steelhead trout or
aquatic habitat.
There are, however, policies and practices that can be improved through programmatic adjustments
to further minimize the exposure to ESA risk and enhance environmental benefits. Important areas
for improvement include riparian, floodplain development, stormwater management and sediment
control. Table ES-1 outlines the recommendations for the six categories of activity identified for
evaluation.
Table ES-1. Recommended Actions to Reduce ESA-Related Risk from the Participating Cities and
Counties Policies and Practices
City or County Policy or Practice Recommendation
Land Use The jurisdictions should consider mapping and, where appropriate,
protecting channel migration zones. This effort should be
coordinated across the cities and counties.
The jurisdictions should consider comprehensively inventorying and
mapping all riparian areas to provide information for critical
resource areas. This effort should be combined with mapping
channel migration zones and coordinated across the jurisdictions
The jurisdictions should review recent NMFS floodplain development
guidance and determine how best to implement the
recommendations so as to avoid, minimize, and/or mitigate impacts
on floodplain habitat.
Stormwater Management The participating cities and counties are revising the Central Oregon
Stormwater Manual (COSM). The jurisdictions should consider
adopting the revised COSM, and should formally encourage the
implementation of low-impact development techniques that
promote impervious surface reduction, on-site retention of
stormwater, minimize clearing of native vegetation, and provide
erosion and sediment control BMPs.
The jurisdictions should consider developing and adopting
stormwater master plans and developing stormwater utilities that
could provide permanent, dedicated funding for stormwater
program implementation, monitoring, enforcement, and reporting.
Pest Control The jurisdictions should be aware of, and if necessary apply, the
current application BMPs and guidance from NMFS.
Routine Road Maintenance Because the Oregon Department of Transportation (ODOT) Routine
Road Maintenance Water Quality and Habitat Guide has been
adopted by NMFS under the 4(d) rule for salmon and steelhead
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations ES-2 ICFAS 00885.08
Central Oregon Intergovernmental Council
City or County Policy or Practice Recommendation
trout, all of the jurisdictions should formally incorporate or adopt
procedures from the document to guide the implementation of road
maintenance procedures.
Surface/Groundwater The cities engaged in surface water withdrawals where steelhead are
Withdrawals present should follow NMFS BMPs and certification for fish screens.
Wastewater Discharge No recommendations are listed for this category.
Central Oregon ESA Risk Evaluation: ES 3 September 2009
Summary of Findings and Recommendations ICFAS 00885.08
Contents
Page
Executive Summary 1
Findings and Recommendations 1
Introduction ...........................................................................................................................1
The Endangered Species Act 1
ESA Status of Middle Columbia Steelhead Trout 2
Deschutes River Steelhead ESA Status and Reintroduction Efforts 3
Steelhead Biology and Factors Contributing to Decline 7
ESA Risk Evaluation Approach and Results 9
Watershed Context and Steelhead Presence Distribution ...............................................11
Land Use 13
Stormwater Management 14
Pest Control 15
Routine Road Maintenance 15
Surface and Groundwater Withdrawals 15
Wastewater Discharge 16
Conclusions and Recommendations 17
References .........................................................................................................................19
Appendix A. COIC Endangered Species Act Liability Risk Assessment
Tables
On Page
Table ES-1.
Recommended Actions to Reduce ESA-Related Risk from the
Participating Cities and Counties Policies and Practices
2
Table 1.
Essential Physical and Biological Features Necessary to Support
Steelhead Populations and the Associated Life Stages
8
Table 2.
How Evaluated Activity Categories Could Affect Key Factors
Impacting Steelhead Populations and Habitat
9
Table 3.
Recommended Actions to Reduce ESA-Related Risk from the
Participating Cities and Counties Policies and Practices
18
Figures
On Page
Figure 1.
Reintroduced Steelhead Range of Distribution
6
Figure 2.
Seasonal Occurrence of Deschutes River Summer Steelhead in
Freshwater by Life History Stage
7
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations I ICFAS00885.08
Central Oregon Intergovernmental Council
Acronyms and Abbreviations
BPRD
Bend Parks and Recreation District
BMPs
best management practices
COSM
Central Oregon Stormwater Manual
DEQ
Department of Environmental Quality
DPS
distinct population segments
EPA
U.S. Environmental Protection Agency
ESA
Endangered Species Act
FEMA
Federal Emergency Management Agency
jurisdictions
cities and counties of Central Oregon
MRCI
Municipal, Residential, Commercial and Industrial
NMFS
National Marine and Fisheries Service
NOAA
National Oceanic and Atmospheric Administration
ODA
Oregon Department of Agriculture
ODFW
Oregon Department of Fish and Wildlife
Recovery Plan
The Middle Columbia River Steelhead Conservation and
Recovery Plan
Upper Deschutes Basin
Upper Deschutes River Basin
USGS
U.S. Geological Survey
WSDOT
Washington State Department of Transportation
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations II ICFAS 00885.08
Introduction
Steelhead trout, which are listed as threatened under the Endangered Species Act (ESA), are being
reintroduced into the Upper Deschutes Basin. 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. Specifically, the jurisdictions desire to avoid
the "take" of reintroduced steelhead, and reduce the potential of ESA-related enforcement actions
and third-party lawsuits.
The Upper Deschutes Basin jurisdictions participating in this evaluation include Crook, Deschutes
and Jefferson Counties, and the cities of Bend, Prineville, Redmond, and Sisters. The jurisdictions
seek to proactively respond to the reintroduction of steelhead by participating in ESA certification of
practices or addressing issues through programmatic steps. The cities and counties want to support
successful reintroduction efforts and enhance the environment, as well as achieve regulatory
predictability and protection from take liability. A review of local government policies and practices
can inform city and county decision making and strategies for conserving steelhead in the Upper
Deschutes Basin.
This report describes the status of ESA-listed steelhead in the Upper Deschutes River Basin (Upper
Deschutes Basin) and outlines ICF Jones & Stokes' evaluation of the jurisdictions' policies and
practices to determine their potential for take of listed steelhead. Land use planning, stormwater
management, herbicide and pesticide management, and routine road maintenance operations are
evaluated for all the jurisdictions. Municipal water diversion, groundwater withdrawal, and
wastewater discharge is examined for the participating cities. The evaluation was informed by
guidance that has already been developed to assist local governments in the modification of their
activities to comply with ESA requirements for salmon and steelhead. The report concludes with
recommendations to improve the jurisdictions' policies and practices to better protect steelhead
populations and habitat.
The Endangered Species Act
In 2000, the National Marine and Fisheries Service (NMFS) adopted a rule prohibiting take of a
number of selected Pacific Northwest salmon and steelhead populations, including Deschutes River
Basin populations, listed as threatened under the ESA. NMFS' 4(d) Rule for Threatened Salmon and
Steelhead on the West Coast establishes a prohibition on the take of any individual member of one of
the salmon and steelhead covered by the rule (NMFS 2000). The term "take" is defined by the ESA
to mean "to harass, harm, pursue, hunt, shoot, trap, capture or collect, or to attempt to engage in
such conduct." As related to take, the term "harm" is defined by administrative rule to include
"significant habitat modification or degradation where it actually kills or injures fish or wildlife by
significantly impairing essential behavioral patterns, including breeding, spawning, rearing,
migrating, feeding or sheltering."
The ESA provides a variety of tools for restoring steelhead populations threatened with extinction
(NMFS 2000). When the activities of state and local governments and private citizens harm listed
species, section 4(d) requires that harm be controlled so it does not lead to extinction. Section 4(d)
requires NMFS to issue regulations deemed "necessary and advisable to provide for the
conservation of the species." The 4(d) rule can "limit" the take prohibitions by providing exceptions
to take so long as the take occurs as the result of a program that adequately protects the listed
species and its habitat.
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations 1 ICF AS 00885.08
Central Oregon Intergovernmental Council
Activities carried out in accordance with 4(d) rule limits can help protect threatened species and
their habitats while relieving government agencies and other entities from liability for take resulting
from those activities. In NMFS' view, the limits are justified where the described program or activity
is "specifically tailored to minimize impacts on listed threatened salmonids to an extent that makes
additional Federal protections unnecessary for conservation of the listed species" (Filippi 2000).
The final NMFS 4(d) rule for Pacific Northwest salmon and steelhead sets 13 limits on take. The
limits cover a number of activities and programs including, emergency actions related to rescuing
or salvaging injured, stranded, or dead salmonids; fishery management activities, when the activities
are specifically tailored to meet certain criteria; and artificial production activities, including the use
of listed salmon or steelhead in hatchery operations.
Included in the 4(d) rule are three limits that are particularly important for evaluating the
jurisdictions' activities:
1. Properly screened water diversions. According to NMFS, unscreened or improperly screened
water diversions can lead to the stranding of juvenile fish in diversion ditches, the impairment
of juvenile and adult migration behaviors, the entrainment of juveniles in pumping facilities, and
the impingement of fish on screens. The two basic requirements are written screen certification
by NMFS and access for inspection purposes.
2. Routine road maintenance activities in Oregon. The take prohibitions do not apply to road
maintenance activities (other than herbicide and pesticide spraying or dust abatement), so long
as the activity is covered by and conducted in accordance with the Oregon Department of
Transportation's (ODOT's) Routine Road Maintenance Water Quality and Habitat Guide
(Routine Road Maintenance Guide) (1999; updated 2004). From NMFS' perspective, the Routine
Road Maintenance Guide provides adequate safeguards for listed salmon and steelhead,
including ongoing and extensive training requirements for work crews; annual reporting of
program implementation; and ongoing coordination with NMFS staff. Significantly, the Routine
Road Maintenance Guide is also available to any state, county, city, or port, or any employee or
agent of those entities, once they have demonstrated in writing that their routine road
maintenance activities are equivalent to the ODOT document.
3. Certain Municipal, Residential, Commercial and Industrial (MRCI) Development and
Redevelopment Activities. In an effort to streamline ESA compliance, the take prohibition is
not applied where the MRCI development is governed by and conducted in accordance with
local ordinances that NMFS has reviewed and approved. This approach also shifts the burden of
developing conservation measures to local jurisdictions. The limit focuses on specific land
development issues and program implementation, including storm water discharge; riparian
buffers; stream crossings; streambanks; impacts on wetlands and surrounding vegetation;
erosion and sediment runoff during and after construction; monitoring; funding; and
enforcement.
ESA Status of Middle Columbia Steelhead Trout
Historically, Middle Columbia River steelhead trout (Oncorhynchus mykiss) spawned and reared in
nine major tributaries and smaller streams draining the east side of the Cascades Mountains in
central Oregon and south-central Washington. By the late 1900s, Middle Columbia steelhead
populations had experienced significant declines in abundance as a result of loss or change to their
natural environment. In 1999, the National Oceanic and Atmospheric Administration's (NOAA's)
NMFS listed the Middle Columbia steelhead populations as threatened under the ESA. The ESA
listing included both anadromous and resident forms of the biological species. The anadromous
forms spend a portion of their life in the Pacific Ocean before returning to spawn in rivers and
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations 2 icFAS 00885.08
Central Oregon Intergovernmental Council
tributary streams. The resident form (i.e., rainbow trout [Oncorhynchus mykiss]) spends its entire
life within the river or tributary stream system and does not migrate to the ocean.
The Middle Columbia River steelhead ESA listing was developed in response to a biological review
which concluded summer steelhead in the Middle Columbia River basins were "likely to become
endangered in the foreseeable future" (NMFS 1999). The most primary factors leading to NMFS'
conclusion that Middle Columbia River steelhead were threatened included:
• declines in abundance of wild steelhead populations and levels of abundance well below historic
levels;
• large numbers of hatchery steelhead relative to wild steelhead, and little information regarding
the impacts of hatchery steelhead on wild steelhead populations throughout the region;
• limited information regarding the interactions between resident rainbow trout and anadromous
steelhead; and
• habitat alterations in the region's rivers and streams resulting in a loss of spawning and rearing
habitat for steelhead, including habitat changes which have exterminated some steelhead runs.
In 2006, NMFS revised its species determination, delineating only anadromous steelhead distinct
population segments (DPS). The Middle Columbia steelhead DPS comprised populations within the
major river systems of the White Salmon, Deschutes, John Day, Klickitat, Umatillia, Walla Walla, and
Yakima rivers, and Fifteenmile, Rock, and Willow creeks.
The Middle Columbia River Steelhead Conservation and Recovery Plan (Recovery Plan) serves as the
roadmap for recovery of 10 steelhead populations that occupy Oregon tributaries to the Columbia
River (ODFW 2008). The Oregon steelhead populations that spawn and rear in the Deschutes, John
Day, Umatilla, and Walla Walla River basins and Fifteenmile Creek are part of the Middle Columbia
DPS. The Recovery Plan provides information required by NMFS to satisfy the requirements of the
ESA.
The Recovery Plan seeks to remove or minimize threats to the long-term persistence of Oregon's
Middle Columbia steelhead populations, and improve the population viability to the level that it can
be removed from the endangered species list. The plan contains strategies and actions for each of
the steelhead populations, including the populations found in the Upper Deschutes Basin and
focuses on primarily addressing threats to the population posed by habitat degradation in rivers and
streams, hatchery strays, and dam system development and operations. According to the ESA
mandates, the Recovery Plan is not a regulatory document and does not require an agency to
implement the plan unless legally mandated to do so. Implementation of the Recovery Plan depends
on the current social and regulatory structure for management of habitat, hydropower facilities,
harvest, and hatchery management. The Recovery Plan identifies actions necessary to achieve
recovery goals, and depends on existing entities for the implementation: federal, state, and local
government agencies and non-governmental organizations including watershed councils and land
trusts.
The Recovery Plan provides information for the following sections on Upper Deschutes Basin
steelhead ESA status, distribution, biology, and factors contributing to population decline.
Deschutes River Steelhead ESA Status and Reintroduction Efforts
The Middle Columbia steelhead DPS is divided into four major population groups: Cascades Eastern
Slope Tributaries, Yakima River, John Day River and Umatilla/Walla Walla River. The Deschutes
River steelhead population is part of the Cascades Eastern Slope Tributaries major population
group. Steelhead in this population group are exclusively summer-run fish. Within the Upper
Deschutes Basin, there are two existing and one extinct population: the Deschutes River eastside
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations 3 ICFAS 00885.08
Central Oregon Intergovernmental Council
tributaries (existing), the Deschutes River westside tributaries (existing), and Crooked River
(extinct).
Deschutes River Eastside Tributaries
This population encompasses the mainstem Deschutes River from its mouth to the confluence of
Trout Creek and the tributaries entering the Deschutes River from the east, including Buck Hollow,
Bakeoven, and Trout creeks.
Deschutes River Westside Tributaries
Steelhead in this population are separated from eastside tributary populations by habitat and life
history characteristics. This population covers the mainstem Deschutes River upstream from the
mouth of Trout Creek and tributaries entering the Deschutes River from the west, including Warm
Springs River, Shitike Creek and several smaller tributaries. Upstream movement of steelhead is
blocked at Pelton Dam at river mile 100. This dam is a barrier to steelhead to the Upper Deschutes
Basin, including the Metolious River and Whychus Creek. A management plan is place to reestablish
steelhead populations to the Metolious River and Whychus Creek.
Crooked River
Steelhead in this population once occupied the Crooked River watershed, an eastside tributary to
the Deschutes River. Because the Pelton Dam blocked passage, this historic population is now
extinct. A management plan is place to reestablish steelhead populations to the Cooked River basin.
The dams that were constructed on the mainstem Deschutes River in the late 1950s and early 1960s
cut off the migration routes of steelhead and salmon to the upper basin. Although fish passage was
incorporated into the Pelton Round Butte Hydroelectric Project, it didn't work properly because of
water currents in Lake Billy Chinook. Adult fish could pass upstream over the dams, but juveniles
could not move back downstream because of the current patterns in the lake. Steelhead populations
were effectively removed from their historic rang in the upper basin, including highly productive
spawning and rearing habitats in the Metolious and Crooked rivers and Whychus Creek (Figure 1).
For example, in the 1950s the number of steelhead counted in Whychus Creek ranged as high as 619
in 1953; counts dwindled to zero in the late 1960s (ODFW 2003).
Reintroduction Efforts
With the recent federal relicensing of the dams, the co-owners of the dams-Portland General
Electric and the Confederated Tribes of Warm Springs-are developing facilities for fish bypass. In
anticipation of the bypass facilities, juvenile steelhead were released into Whychus Creek beginning
in 2007 and the Crooked River basin in 2008. Whychus Creek, and McKay and Ochoco creeks in the
Crooked River system, are considered to have a high potential for supporting self-sustaining
populations of steelhead and were, therefore, targeted for releases of steelhead fry.
The release of juvenile steelhead in Whychus Creek and the Crooked River basin is intended to
produce enough naturally produced smolts to test fish passage effectiveness downstream through
Lake Billy Chinook and into the facility at the Pelton Round Butte Hydroelectric Project. The draft
reintroduction plan anticipates continuing annual releases of fry to supplement natural fish
production associated with the returns of adult fish.
In its 2005 Biological Opinion, NMFS concluded that reintroducing steelhead to historical habitat
above the Pelton Round Butte Hydroelectric Project would increase the viability of the Upper
Deschutes Basin population of Middle Columbia River steelhead by increasing their range. NMFS
did not find that the reintroduction effort was essential to the continued existence of Middle
Central Oregon ESA Risk Evaluation: 4 September 2009
Summary of Findings and Recommendations ICFAS 00885.08
Central Oregon Intergovernmental Council
Columbia River steelhead.
As part of the Upper Deschutes River basin steelhead reintroduction effort, NMFS is pursuing
rulemaking to designate steelhead above the Pelton Round Butte Hydroelectric Project as an
"experimental population" under section 100) of the ESA. The designation allows for greater
flexibility in managing land uses and human activities without the usual level of protection afforded
ESA-listed species. During the period when experimental population is in effect, the population
would be treated as proposed for ESA listing, no critical habitat would be designated, and the rule
would provide limits to ESA legal liability. Because the fish are considered a nonessential
experimental population, the 10(j) rule would provide exemptions from ESA's take prohibitions.
NMFS is currently developing the rule and a draft version is expected by November, 2009
(Rosemary Furfey, NMFS, personal communication 2009).
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations 5 iCFAS 00885.08
Central Oregon Intergovernmental Council
Figure 1. Reintroduced Steelhead Range of Distribution
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ESA Risk Assessment
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County Miles
Central Oregon ESA Risk Evaluation: 5 September 2009
Summary of Findings and Recommendations iCFAS 00885.08
Central Oregon Intergovernmental Council
Steelhead Biology and Factors Contributing to Decline
The Upper Deschutes River steelhead are a summer-run fish and its biology is similar to those of
other inland steelhead populations. Most fish rear for 2 years in the basin and then migrate down
the river to the ocean. The fish then spend 1 to 2 years in saltwater before reentering freshwater,
where they may remain up to 1 year before spawning. Summer-run fish enter the Columbia River
from June to August. Adult steelhead ascend the Deschutes River and tributaries throughout the
winter, hold in deeper water areas, and then spawn in the late winter and early spring. Fry
emergence typically occurs between May and the end of June. Figure 2 outlines the timing for each
of the freshwater steelhead life stages.
Figure 2. Seasonal Occurrence of Deschutes River Summer Steelhead in Freshwater by Life
History Stage
Year 1
Year 2
Year 3
Developmental Stages
M A M J
J A S G
N
D
J
F
M A
M
J
J A S
0
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M A
M
J
J
Adult Immigration
Adult Holding
Spawning
EgglAlevin Incubation
Emergence
Rearing
T
E
L
Juvenile Migration
1
7
7
7
Source: WPN 2009 and adapted from Cramer and Beamesderfer 2002.
Because steelhead spend up to 3 years in freshwater for migration and juvenile rearing, they are
particularly vulnerable to habitat modification. Each life stage-adult and juvenile migration, adult
holding, spawning, egg incubation, emergence, and juvenile rearing-can be disrupted by habitat
modifications. Steelhead eggs, for example, can be destroyed by flood events if there is not sufficient
depth gravels and floodplain connectivity to dissipate the high flows to protect the incubating eggs
from scour. Migrating adult fish can be prevented from reaching spawning areas by obstacles, such
as low water from flow diversions or other barriers to upstream movement.
Essential features of steelhead habitat include substrate, water quality, water quantity, water
temperature, food, riparian vegetation, floodplains and off-channel habitats, and safe passage. These
features also describe the habitat factors associated with viable steelhead populations. The specific
habitat requirements vary by life stage. Table 1 depicts the physical and biological features
identified as essential to the conservation of steelhead and the life stage each feature supports.
Central Oregon ESA Risk Evaluation: 7 September 2009
Summary of Findings and Recommendations ICFAS 00885.08
Central Oregon Intergovernmental Council
Table 1. Essential Physical and Biological Features Necessary to Support Steelhead Populations
and Associated Life Stages
Essential Physical and Biological
Life Stage
Features
Steelhead Trout Life Stage
Freshwater spawning
Water quality, water quantity, and
Spawning, incubation, and larval
substrate (gravel quantity and quality)
development
Freshwater rearing
Water quantity
Juvenile growth and mobility
Water quality and forage
Juvenile development
Natural habitat elements
Juvenile mobility and survival
Freshwater migration
Free of artificial obstructions, water
Juvenile and adult mobility and survival
quality and quantity, and natural habitat
elements
a Natural habitat elements include shade, large wood, logjams, beaver dams, aquatic vegetation, large rocks
and boulders, floodplain connectivity, side channels, and undercut banks.
b Forage includes aquatic invertebrate and fish species that support growth and maturation.
Source: ODFW 2008.
Building on the essential biological and physical features cited above, the Recovery Plan has
identified the specific contributing factors to population declines and recovery limitation of Upper
Deschutes Basin steelhead. These factors are as follows:
1. Hydrologic regime. Low streamflows, primarily from water diversions.
2. Channel morphology. Channelization from channel straightening and bank hardening to
protect developed areas; increased channel scour and downcutting from increased storm-event
flows.
3. Floodplain and riparian condition. Riparian vegetation density, composition and width;
floodplain connectivity to the stream and stream-associated wetlands; floodplain development
and urbanization.
4. Fish passage. Fish passage barriers from low flows and diversions and other obstacles to
migration, including culverts and dams; potential entrainment of fish at point of diversion.
S. Water quality. Primarily water temperature, which is often associated with low flows from
water diversions.
The jurisdictions' policies and practices can affect the factors limiting recovery of Upper Deschutes
Basin steelhead. Each of the activity categories-land use planning, stormwater management,
herbicide and pesticide management, transportation operations, and municipal ground and surface
water withdrawal and wastewater discharge-have the potential to affect the physical biological
features that support healthy steelhead populations.
Table 2 provides examples of how each of the jurisdictions' activity categories could potentially
affect the key factors impacting steelhead populations and habitat.
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations 8 ICFAS 00885.08
Central Oregon Intergovernmental Council
Table 2. How Evaluated Activity Categories Could Affect Key Factors Impacting Steelhead
Populations and Habitat
Activity
Example of
Potential Impact on Key Factors Limiting Upper Deschutes
Category
Policy/Practice
Basin Steelhead
Land use
• Riparian and floodplain
Channel morphology: channelization from channel
planning
development and
straightening and bank hardening; limiting channel meander
urbanization
patterns from floodplain development and bridges
• Bridge and culvert
Floodplain and riparian condition: riparian vegetation density,
placement
composition and width; floodplain connectivity to the stream
• Development of stream-
and stream-associated wetlands
associated wetlands
Fish passage: obstacles to migration from culverts and bridges
Stormwater
• Stormwater detention
Hydrologic regime: lower summer streamflows from
management
and treatment
inadequate groundwater recharge; increased high flows from
• Area in street and other
stormwater runoff during storm events
impervious areas
Channel morphology: Increased channel scour and downcutting
• Erosion control
from increased storm-event flows; sediment in channels
Water quality: degraded water quality from street and other
stormwater discharges, including hydrocarbons and other
constituents
Herbicide and
. Type of chemicals
Water quality: degraded water quality from introduction of
pesticide
applied
chemicals into waterways
management
• Application proximity to
streams
Ground and
• Water withdrawal
Hydrologic regime: low streamflows
surface water
quantity and rate
Fish passage: barriers from low flows and diversions; potential
withdrawals
• Diversion screening
entrainment of fish at point of diversion
Wastewater
• Quantity and rate of
Water quality: degraded water quality from increased water
discharge
discharge
temperature or introduction of other constituents into
• Water quality
waterways
characteristics of treated
effluent
ESA Risk Evaluation Approach and Results
The intent of the ESA risk evaluation is to describe areas of potential ESA risk for the jurisdictions to
consider when planning a strategy to support the recovery of Upper Deschutes Basin steelhead
populations. The evaluation provides a framework for responding to the presence of reintroduced
steelhead trout through take limit certification under ESA Section 4(d), or other policy or
programmatic steps.
ICF Jones & Stokes used the following documents as guidance to evaluate the jurisdictions' policies
and practices:
• NMFS Citizen's Guide to the 4(d) Rule
• ODOT Routine Road Maintenance Guide (1996; updated 2004)
• Oregon Association of Clean Water Agencies Endangered Species Assessment Manual (2000)
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These documents are particularly relevant because they include specific risk assessment standards
and criteria for activities that have been identified by the jurisdictions for evaluation.
In addition to these documents, ICF Jones & Stokes evaluated the jurisdiction's policies and practices
for conformance to other best management practices (BMPs) designed to protect water quality,
floodplain processes, and aquatic habitat These BMPs are described in a variety of documents and
scientific studies. Because they are designed for the Upper Deschutes Basin's unique climate,
hydrology, and landforms, the BMPs described in the Central Oregon Stormwater Manual (COSM)
provided additional guidance for evaluating stormwater practices.
Four categories of activities were evaluated for all of the jurisdictions:
• land use,
stormwater management,
pest control (herbicides and pesticides), and
• routine road maintenance.
For each category we identified specific criteria used to evaluate the policies and practices with the
potential to affect listed steelhead and their habitat. For each criterion we summarized the
jurisdictions' practices and assessed the current level of protection afforded to steelhead as a result
of the policy or practice. The information on each jurisdiction's practices was based on a review of
supplied documents and codes and interviews with staff from each of the participating cities and
counties.
The level of protection from ESA risk is determined within the following categories:
• Policies/practices adequately address ESA risk
• Policies/practices possess some ESA risk
• Policies/practices are inadequate and do not address ESA risk
Where the policy or practice does not conform to the accepted level of protection and presents some
ESA risk, the rationale for the variance is described. In addition and where appropriate, we
recommend potential modifications to the policy and practice to better address ESA risk.
In addition to the categories listed above, two additional categories of activities were described for
the participating cities:
• surface and groundwater withdrawals, and
• wastewater discharge.
It is beyond the extent of this evaluation to assess the likelihood of take caused by the jurisdictions'
surface and groundwater withdrawals and wastewater discharge activities. Instead, we present
BMPs for the operation of municipal surface and groundwater withdrawals and wastewater
discharge; it is assumed that these BMPs minimize the potential for take of listed steelhead. This
evaluation summarizes the ESA-related case law without applying it to current surface and
groundwater withdrawals and wastewater discharge operations.
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Watershed Context and Steelhead Presence Distribution
The ESA risk resulting from the jurisdictions' policies and practices is evaluated based on the
application of BMPs and the presence of steelhead trout in the affected waterways. In areas of the
cities or counties that contain waterways where steelhead trout are (or will be) reintroduced, there
is more potential for the jurisdiction's activities to impact steelhead because there are direct
pathways to portions of the system where fish are present. The following is a description of the
steelhead presence and associated risk of impacts on fish or habitat for the participating counties
and cities.
Crook County
The Crooked River and its tributaries flow through Crook County. Steelhead, which were
historically present in Crooked River Watershed and have been reintroduced in the system, use the
river and tributary streams for migration, spawning, and juvenile rearing. Because these fish are
present in Crook County's waterways there is risk that the County's activities could have a direct
impact on steelhead populations or aquatic habitat. Crook County does not authorize or participate
in high-risk activities (such as water diversions), so there is minimal risk that the County's activities
could directly cause steelhead mortality. Crook County's practices, however, can indirectly affect
steelhead. These indirect effects can include changes in riparian habitat, floodplain function, erosion
control, or other practices that could negatively impact fish populations or habitat where steelhead
are present.
Reintroduced steelhead are blocked from upstream movement into the historic range in the upper
watershed. Bowman Dam on the Crooked River and Ochoco Dam both prevent steelhead migration
above these barriers. As a consequence, there is minimal risk that Crook County's activities in the
areas above these dams could have a direct impact on steelhead populations or aquatic habitat.
Nevertheless, the County's practices above the dams can indirectly affect steelhead downstream
through changes in water quality, riparian and floodplain function, and other ecological processes
that support high quality aquatic habitat and water quality.
Deschutes County
Steelhead were historically present in waterways within Deschutes County, including portions of the
Deschutes River, Crooked River, and Whychus Creek. Steelhead have been reintroduced into these
waterways and use various parts of the system for migration, spawning, and juvenile rearing. There
is risk that Deschutes County's activities could impact steelhead populations or aquatic habitat,
because these fish are present in the county's rivers and streams. Deschutes County does not
authorize or participate in high-risk activities (such as water diversions), so there is minimal risk
that the county's activities could directly cause steelhead mortality. Deschutes County's practices,
however, can indirectly affect steelhead. These indirect effects can include changes in riparian
habitat, floodplain function, erosion control, or other practices that could negatively impact fish
populations or habitat where steelhead are present.
Reintroduced steelhead are blocked from upstream movement to the Upper Deschutes River at Big
Falls, approximately 30 miles downstream from the City of Bend. As a consequence, there is
minimal risk that Deschutes County's activities in areas along the Deschutes River or its tributaries
above Big Falls could have a direct impact on steelhead populations or aquatic habitat. The county's
practices, however, can indirectly affect steelhead in the Upper Deschutes River downstream of Big
Falls through changes in water quality. Loss of riparian shade through the application of county
policies, for example, could increase water temperatures in downstream portions of the Upper
Deschutes River.
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Jefferson County
There are streams and rivers in Jefferson County below the Pelton Dam that currently contain ESA-
listed Middle Columbia steelhead populations. These populations include eastside tributary
populations (Trout Creek) and westside tributaries (Shitike Creek and several smaller streams).
Steelhead were historically present and will be reintroduced in waterways within Jefferson County
above the dam, including portions of the Deschutes River, Metolious River, and Whychus Creek.
Because steelhead are present in Jefferson County's waterways there is risk that the County's
activities could have a direct impact on steelhead populations or aquatic habitat. Jefferson County
does not authorize or participate in high-risk activities (such as water diversions), so there is
minimal risk that the county's activities could directly cause steelhead mortality. Jefferson County's
practices, however, can indirectly affect steelhead. These indirect effects can include changes in
riparian habitat, floodplain function, erosion control, or other practices that could negatively impact
fish populations or habitat where steelhead are present.
City of Bend
The Deschutes River and Tumalo Creek flow through the City of Bend. Steelhead were not
historically present nor will they be reintroduced in the waterways within the City of Bend's urban
growth boundary or other areas subject to city management (e.g., water withdrawal and conveyance
from Bridge Creek). Reintroduced steelhead are blocked from upstream movement into the Upper
Deschutes River at Big Falls, approximately 30 miles downstream from the city (see Figure 1). As a
consequence, there is minimal risk that the City of Bend's activities could have a direct impact on
steelhead populations or aquatic habitat. There is no risk, for example, that the city's practices could
directly cause fish mortality through improper activities such as uptake of fish through water
conveyance systems. A change in water quality or flow in the Upper Deschutes River downstream of
Big Falls could have an indirect affect on fish populations or habitat. Any downstream effects on
steelhead populations or habitat, however, are difficult to quantify.
This evaluation does not cover the activities of either the Bend Parks and Recreation District
(BPRD), which manages a significant portion of the lands along the Upper Deschutes River and
Mirror Pond within the city, or the privately owned Old Mill Shopping District, which is located
adjacent to and along approximately 0.50 mile of the Upper Deschutes River in the city. These
entities manage practices that have the potential to impact waterways and land, which encompasses
a significant portion of the riparian areas along the Deschutes River.
Additionally, this evaluation does not cover the activities of two private drinking water purveyors in
the city, both of which rely on groundwater withdrawal for drinking water supplies.
City of Prineville
Crooked River and Ochoco Creek flow through the City of Prineville. Steelhead, which were
historically present in Crooked River and Ochoco Creek, have been reintroduced in the system and
use the river and creek for migration, spawning, and juvenile rearing. Because these fish are present
in the City of Prineville's waterways, there is risk that the city's activities could have a direct impact
on steelhead populations or aquatic habitat. There is risk, for example, that the City of Prineville's
practices could directly cause fish mortality through improper activities such as the uptake of fish
through water conveyance systems. In addition, the City of Prineville's practices can indirectly affect
steelhead. These indirect effects can include changes in water quality, streamflow, or floodplain
function that could negatively impact fish populations or habitat in the City of Prineville or the
downstream portions of Crooked River and Ochoco Creek.
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City of Redmond
There are no waterways containing steelhead within the City of Redmond's urban growth boundary.
The City of Redmond is more than 5 miles from the nearest stream that could contain reintroduced
steelhead. Because the City of Redmond does not contain waterways and there are no city activities
(e.g., stormwater discharges) that have direct pathways into streams, there is minimal risk that the
city's practices could have an impact on steelhead populations or aquatic habitat. There is no risk,
for example, that the City of Redmond's practices could directly cause fish mortality through
improper activities such as the uptake of fish through water conveyance systems. In addition, there
is limited risk that indirect effects, such as groundwater withdrawals, could negatively impact fish
populations or habitat in the Deschutes River or Crooked River.
City of Sisters
Whychus Creek flows through the City of Sisters. Steelhead, which were historically present in
Whychus Creek, have been reintroduced in the system and use the creek for migration, spawning,
and juvenile rearing. Because these fish are present in the City of Sisters' waterways, there is risk
that the city's activities could have a direct impact on steelhead populations or aquatic habitat.
There is risk, for example, that the City of Sisters' practices could directly cause fish mortality
through improper activities such as the uptake of fish through water conveyance systems. In
addition, the City of Sisters' practices could indirectly affect steelhead. These indirect effects could
include changes in water quality, streamflow, or floodplain function that could negatively impact
fish populations or habitat in the City of Sisters or the downstream portions of Whychus Creek.
Land Use
ICF Jones & Stokes evaluated the jurisdictions' land use plans, policies, and activities for their
potential to cause take of listed steelhead. The land use portion of this evaluation was based on
objectives identified by NMFS under Limit 12 of the 4(d) Rule for Threatened Salmon and Steelhead
on the West Coast-the MRCI Development, and Redevelopment limit (4(d) rule. By evaluating the
jurisdictions' plans and policies compared to the 4(d) rule objectives, ICF Jones & Stokes determined
the extent to which land use and development policies and practices adequately protect listed
steelhead. While most of the MRCI limit objectives were used as part of the land use and
development evaluation, some were addressed under other activity categories (e.g., stormwater).
The following key questions guided the land use evaluation:
• Are the locations of important natural resources and habitat areas mapped?
• Do the jurisdiction's development policies and practices adequately protect riparian areas?
• Does the jurisdiction's development code adequately protect historic stream meander patterns
and channel migration zones?
• How does the jurisdiction's development code address development in the floodplain? Is the
jurisdiction's floodplain area mapping up to date?
• Do the jurisdiction's development code and practices adequately protect wetland areas?
Land use evaluation findings:
• Most of the jurisdictions have delineated riparian areas (e.g., 100 feet along fish-bearing
streams) and have codes in place for protecting riparian vegetation. There is, however,
variability in the width of the protected riparian vegetation buffer. The quality of the inventory
and mapping of riparian habitats is variable. Some jurisdictions do not have a riparian
inventory in place; there is not a standard for inventory or mapping across all of the
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jurisdictions.
• Some of the jurisdictions have comprehensively inventoried and mapped wetland areas. While
all of the jurisdictions have codes in place to protect wetlands, the protection is variable because
several do not have comprehensive information on wetland locations.
• Most of the jurisdictions have not comprehensively mapped channel migration zones, nor are
there development restrictions in place for channel migration zones.
• All of the jurisdictions have policies in place that require Federal Emergency Management
Agency (FEMA) development standards to minimize flooding impacts on houses and property.
Very few of the jurisdictions, however, have associated floodplain policies that address the
ecological function of floodplains and historic stream channels. NMFS has recently developed
floodplain development guidance on how best to revise floodplain development requirements
so that the jurisdictions avoid, minimize, and/or mitigate impacts on floodplain habitat.
Stormwater Management
In order to protect ESA-listed fish species, NMFS requires that development ordinances adequately
prevent stormwater discharges from impacting water quality and quantity and streamflow patterns
in the watershed. These impacts include peak and base flows in perennial streams. NMFS states
that stormwater management programs must require development activities to preserve or
enhance streamflow patterns so they are as close as possible to the historic peak flows, base flows,
durations, volumes, and velocities. These flows can be accomplished by reducing impervious
surfaces and maintaining vegetation cover and natural soils. These conditions will, in turn, maintain
essential habitat processes such as natural water infiltration rates, transpiration rates, stormwater
runoff rates, and sediment filtering, and they will provide hydrographic conditions that will
maintain and sustain aquatic life.
The following key questions guided the stormwater evaluation:
• Do the jurisdiction's policies and practices ensure that stormwater from new development or
redevelopment will not impact the water quality of fish-bearing streams?
• Do development policies and practices protect historic streamflow patterns such as peak and
base flows in perennial streams?
• Do development policies and practices require BMPs that establish erosion and sediment
controls during and after construction?
• Are there mechanisms in place and adequate levels of funding and resources for program
implementation, monitoring, enforcement, and reporting?
Stormwater management evaluation findings:
• The COSM, which describes stormwater BMPs that are appropriate for the Upper Deschutes
Basin's climate, geology and land use conditions, is used by all of the jurisdictions as guidance.
None of the jurisdictions have formally adopted the COSM, and the application of its BMPs varies
considerably across the jurisdictions. The participating cities and counties are currently
revising the COSM.
• There is considerable variation in the implementation of low-impact development techniques
that promote impervious surface reduction, on-site retention of stormwater, practices that
minimize clearing of native vegetation, and the application of BMPs that provide erosion and
sediment control.
• Most of the jurisdictions do not have a stormwater master plan in place, nor do they have a
stormwater utility that could provide permanent, dedicated funding for stormwater program
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implementation, monitoring, enforcement, and reporting.
Pest Control
The evaluation of pest control focused on the jurisdiction's use of herbicides and pesticides. ICF
Jones & Stokes reviewed herbicide and pesticide management plans and policies to determine the
potential for take of listed steelhead. The evaluation was based on Oregon Department of
Agriculture (ODA) guidelines and recent guidance from NMFS.
The following key questions guided the pesticide and herbicide evaluation:
• Are there mechanisms in place and adequate levels of funding and resources for program
implementation, monitoring, enforcement, and reporting?
• What pesticides and herbicides are currently used by the jurisdiction?
• How does the jurisdiction determine what pesticides and herbicides can be used?
• Does the jurisdiction maintain guidance on appropriate locations and methods for the
application of pesticides and herbicides?
Pest control evaluation findings:
The application of herbicides and pesticides across the jurisdictions was variable; many of the
jurisdictions apply herbicides on a very limited basis and rarely apply pesticides. To the extent
that the jurisdictions apply pesticides and herbicides, they follow ODA practices and U.S.
Environmental Protection Agency (EPA) label requirements. To minimize the risk associated
with the application of pesticides and herbicides, NMFS has developed guidance for application
of specific chemicals along waterways with ESA-listed salmon or steelhead trout.
Routine Road Maintenance
The jurisdictions' routine road maintenance practices were evaluated to determine if they are
substantially similar to-and at least as protective as-the Routine Road Maintenance Guide
practices approved under the current 4(d) rule. Should the jurisdictions' practices differ from the
Routine Road Maintenance Guide, either in organization or in substance, the evaluation determined
whether the practice was less protective, as protective, or more protective than the ODOT guidance.
The evaluation also examined the extent to which the jurisdictions could identify all road locations
where maintenance activities may affect streams and the locations of critical steelhead habitat
adjacent to roads.
The following key question guided the routine road maintenance evaluation:
• To what extent does the jurisdiction rely upon and implement the Routine Road Maintenance
Guide?
Routine Road Maintenance evaluation findings:
• All of the jurisdictions apply the ODOT Routine Road Maintenance Guide. The jurisdictions,
however, have not formally adopted the guide, nor have they documented its implementation.
Surface and Groundwater Withdrawals
The Upper Deschutes Basin has been the subject of extensive hydrologic and policy evaluation. In
2001, the U.S. Geological Survey (USGS) published the Water-Resources Investigations Report 00-
4162, a basin-wide study that concluded there is a direct relationship between surface and
groundwater. Based on this study, subsequent investigations, and many years of stakeholder
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Summary of Findings and Recommendations 1cFAS00885.08
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involvement, the state legislature enacted a special mitigation program for future groundwater
withdrawals. The Oregon Water Resources Department adopted and implemented rules for the
program. In light of the Upper Deschutes Basin's complicated history and the variability between
water systems among the jurisdictions, it is beyond the extent of this evaluation to assess the
likelihood of take caused by the quantities of water withdrawn by the jurisdictions in the Upper
Deschutes Basin. Instead, we outline current BMPs for operating municipal surface and
groundwater withdrawals and use that minimize the potential for take. In addition, this evaluation
summarizes the related case law without applying it to current operations (see Appendix A, COIC
Endangered Species Act Liability Risk Assessment Memorandum, ICF Jones & Stokes, April 6, 2009).
The cities of Prineville, Redmond, and Sisters obtain most of their municipal water from
groundwater wells. The City of Bend obtains approximately equal amounts municipal water from
ground and surface water sources. All of the cities' groundwater withdrawal activities are currently
permitted by the Oregon Water Resources Department and all cities are engaged in the state's
groundwater mitigation program, which constitutes the appropriate BMPs. Several cities have
surface water withdrawals. Where steelhead are present, the jurisdiction should follow NMFS
screen certification design and operation BMPs.
The ESA prohibits take of endangered species and assigns liability to any actor who causes it, either
directly or through habitat modification. The Endangered Species Act Liability Risk Assessment
Memorandum (Appendix A) concludes, however, that citizen suits against small government actors
for permitted water withdrawal activities have not proven to be an effective mechanism for
enforcing the ESA's prohibitions. Lawsuits resulting from ESA liability are rare for permitted water
withdrawal activities and can be minimized through the appropriate implementation of policies and
practices that protect water quality, stream habitat, and direct uptake of fish.
Through careful compliance with accepted BMPs the cities' risk of ESA liability from water
withdrawal activities is minimal.
Wastewater Discharge
The discharge of wastewater into fish-bearing streams has the potential to allow the entry of
pollutants into aquatic habitats that could lead to take of listed steelhead. Since local governments
are responsible for the treatment and discharge of wastewater, they could be held responsible for
such take under the ESA.
ICF Jones & Stokes reviewed the cities' current wastewater discharge policies and practices to
determine if standard practices are preventing the discharge of pollutants to fish-bearing streams to
the maximum extent practicable. All of the cities' management of wastewater is permitted by the
State of Oregon Department of Environmental Quality (DEQ), and the wastewater activities are
designed to minimize impacts on water quality and fish habitat. Treated effluent is stored in
evaporative ponds or land applied on local agricultural or forest lands. At all times, there is no
discharge to the Deschutes River. At periodic intervals, soils in the irrigated areas are sampled for
leaching nitrates to assure that groundwater levels are not increasing.
ICF Jones & Stokes' evaluation of wastewater discharge includes a summary of the related case law
to provide the jurisdictions with an understanding of the potential risk of legal actions as a result of
permitted wastewater discharge (see Appendix A). The memorandum provided as Appendix A
concludes that through careful compliance with all permit conditions, the risk of liability from
wastewater discharge activities is minimal.
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Summary of Findings and Recommendations 16 ICF AS 00885.08
Central Oregon Intergovernmental Council
Conclusions and Recommendations
The risk exposure to ESA enforcement actions or third-party lawsuits resulting from the
jurisdictions' policies and practices is evaluated based on the application of BMPs and the presence
of steelhead trout in the affected waterways. In areas of the cities or counties that contain
waterways where steelhead trout are (or will be) reintroduced, the jurisdiction has more ESA risk
because its policies and practices can impact water quality and riparian habitat that has direct
pathways to portions of the system where fish are present.
In the City of Bend and the counties upstream from steelhead trout-bearing portions of the Upper
Deschutes Basin, it is difficult to directly link the activities to steelhead trout population effects or
modifications to aquatic habitat. Because there are more limited pathways in these upstream areas
that can affect steelhead trout populations or aquatic habitat, there is less ESA-related risk. For the
City of Redmond, the ESA-related risk is further reduced because there are no steelhead present in
the city or direct pathways to waterways were steelhead are or could be present.
If a jurisdiction does not authorize or participate in high-risk activities such as water diversions,
there is minimal risk that the jurisdiction's activities could directly cause steelhead trout mortality.
For the most part, the jurisdictions are applying BMPs in a manner that protects ecological
processes and water quality that support steelhead trout populations. Correct application of the
BMPs limits potential that the jurisdiction's policies and practices can affect steelhead trout or
aquatic habitat.
There are, however, policies and practices that can be improved through programmatic adjustments
to further minimize the exposure to ESA risk and enhance environmental benefits. Important areas
for improvement include riparian, floodplain development, stormwater management, and sediment
control BMPs. Because steelhead occupy streams and rivers that flow through all of participating
cities and counties in the Upper Deschutes Basin, the jurisdictions should continue to coordinate
planning and other activities. Steelhead recovery necessitates information and coordinated actions
at the basin-scale.
Table 3 outlines the recommendations for the six categories of activity identified for evaluation.
Regardless of whether steelhead trout are present, these recommendations should be applied
throughout the jurisdiction's management area. Improving policies and practices will help maintain
aquatic habitat and watershed processes that will yield improvements to the environment that
support steelhead trout and other aquatic and riparian-dependant species.
Central Oregon ESA Risk Evaluation: 17 September 2009
Summary of Findings and Recommendations icFAS 00885.08
Central Oregon Intergovernmental Council
Table 3. Recommended Actions to Reduce ESA-Related Risk from the Participating Cities and
Counties Policies and Practices
City or County Policy or Practice Recommendation
Land Use The jurisdictions should consider mapping and, where appropriate,
protecting channel migration zones. This effort should be coordinated
across the cities and counties.
The jurisdictions should consider comprehensively inventorying and
mapping all riparian areas to provide information for critical resource areas.
This effort should be combined with mapping channel migration zones and
coordinated across the jurisdictions.
The jurisdictions should review recent NMFS floodplain development
guidance and determine how best to implement the recommendations so as
to avoid, minimize, and/or mitigate impacts on floodplain habitat.
Stormwater Management The participating cities and counties are revising the COSM. The
jurisdictions should consider adopting appropriate parts of the revised
COSM, and should formally encourage the implementation of low-impact
development techniques that promote impervious surface reduction, on-site
retention of stormwater, minimize the clearing of native vegetation, and
provide erosion and sediment control BMPs.
The jurisdictions should consider developing and adopting stormwater
master plans and developing stormwater utilities that could provide
permanent, dedicated funding for stormwater program implementation,
monitoring, enforcement, and reporting.
Pest Control
The jurisdictions should be aware of, and if necessary apply, the current
application BMPs and guidance from NMFS.
Routine Road Maintenance
Because the Routine Road Maintenance Guide has been adopted by NMFS
under the 4(d) rule for salmon and steelhead trout, the jurisdictions should
formally incorporate or adopt procedures from the document to guide the
implementation of road maintenance procedures.
Surface/Groundwater
The cities engaged in surface water withdrawals where steelheads are
Withdrawals
present should follow NMFS BMPs and certification for fish screens.
Wastewater Discharge
No recommendations are listed for this category.
Central Oregon ESA Risk Evaluation: 18 September 2009
Summary of Findings and Recommendations ICFAS 00885.08
Central Oregon Intergovernmental Council
References
Cramer, S.P. and R.C.P. Beamesderfer. 2002. Population dynamics, habitat capacity, and a life
history simulation model for steelhead in the Deschutes River, Oregon. Prepared for PGE,
Portland, Oregon. S.P. Cramer and Associates, Sandy, OR.
Filippi, D.E. 2000. NMFS' Final 4(d) Rule for Salmon and Steelhead. Published in Oregon Insider
and by Stoel Rives LLP, Portland, OR. Available:
http://www.stoel.com/showarticle.aspx?Show=909. Accessed: August 5, 2009
National Marine Fisheries Service(NMFS). 2000. A Citizen's Guide to the 4(d) Rule for Threatened
Salmon and Steelhead on the West Coast. NMFS, Northwest and Southwest Regions.
Oregon Association of Clean Water Agencies. 2000. Endangered Species Act Assessment Manual.
Version 1. Prepared by CH2M-Hill. Portland, OR.
Oregon Department of Fish and Wildlife (ODFW). 2003. Anadromous fish and bull trout
management in the Upper Deschutes, Crooked, and Metolius River Subbasins. Oregon
Department of Fish and Wildlife, Portland, OR.
2008. Conservation and Recovery Plan for Oregon Steelhead Populations in the Middle
Columbia River Steelhead Distinct Population Segment. ODFW, Salem, OR.
Oregon Department of Transportation (ODOT) Routine Road Maintenance Water Quality and
Habitat Guide (Routine Road Maintenance Guide). 1999 (updated 2004). ODOT, Salem, OR.
Watershed Professionals Network (WPN). 2009. Whychus Creek Restoration and Management
Plan. Prepared for the Upper Deschutes Watershed Council, Bend, OR and the City of Sisters, OR.
WPN, Bend, OR.
Central Oregon ESA Risk Evaluation: 19 September 2009
Summary of Findings and Recommendations ICFAS 00885.08
Central Oregon Intergovernmental Council
Appendix A:
COIC Endangered Species Act Liability Risk Assessment
Central Oregon ESA Risk Evaluation: September 2009
Summary of Findings and Recommendations 20 ICFAS 00885.08
MMONWMM-
honesStakes8x
an ICF International Company
Memorandum
Date: April 6, 2009
To: Crook, Deschutes, and Jefferson Counties; Cities of Bend, Prineville, Redmond,
and Sisters; Central Oregon Intergovernmental Council (COIC)
From: Megan Smith, JD
Subject: COIC Endangered Species Act Liability Risk Assessment
INTRODUCTION AND SUMMARY
This memorandum and its accompanying summary have been prepared for general informational
purposes only. It does not constitute legal advice and must not be used as a substitute for the
advice of qualified legal counsel. Preparation and use of this information does not create an
attorney-client relationship between any ICF Jones & Stokes employee and any recipient of this
information.
The Endangered Species Act prohibits the take of any endangered species by anyone subject to
the jurisdiction of the United States. Daily activities such as withdrawal of surface and
groundwater, as well as permitted wastewater discharge, are suddenly high profile issues when
they become the subject of an ESA citizen suit. While performance of these activities is
commonplace nationwide, existing case law has focused on the actions of larger entities,
primarily federal, and provides little specific guidance to county and municipal actors. This
analysis discusses the procedural requirements of citizen suits under Section 11 of the ESA, as
well as under what circumstances water withdrawal and discharge of wastewater and other
constituents into streams may be the subject of a citizen suit. Due to the lack of citizen suit case
law discussing specific causes of action against counties, municipal or smaller government
entities, no specific actions or Best Management Practices are identified.
Issue One: What scope of activities is regulated by ESA?
Statutory Structure of the Endangered Species Act
Despite several subsequent Congressional amendments, the basic framework and policy of the
Endangered Species Act have remained unchanged since 1973, requiring that all federal
departments and agencies seek to conserve endangered and threatened species. The ESA divides
responsibility for its administration between the Secretary of the Interior, through its Fish and
Wildlife Service (FWS), and the Secretary of Commerce, through NOAA's National Marine
Fisheries Service (NMFS). These two agencies, jointly referred to as "the Services", have
promulgated regulations (see 50 CFR parts 401 - 453) to meet their obligations under ESA's
317 SW Alder Street, Suite 800 e® Portland, OR 97204 - 503.248,9507 - 503.2283820 fax - icti.com - jonesandstokes.com
April 6, 2009
Page 2
various provisions. Currently, there are 34 listed marine and anadromous fish species under
NMFS' purview, the majority of which are West Coast species.'
The ESA contains six major provisions. Section 4 governs FWS' and NMFS' ability and
obligation to list a species and designate the species' habitat as "critical habitat;" as well as
impose certain protections for species listed as threatened? Section 7 imposes requirements
upon all federal agencies to consult with the Services on any federal action that may affect a
listed species or adversely modify or destroy designated critical habitat and provides for issuance
of biological opinions by the Services that may include take authorization.3 Section 9 prohibits,
among other things, the "taking" of any endangered species, while Section 4(d) authorizes FWS
and NMFS to adopt administrative rules to impose the same, or varying levels, prohibitions for
threatened species.45 Section 10 authorizes the Services to grant exceptions to the "take"
prohibitions of Sections 9 and 4(d) for actions not authorized or carried out by a federal agency.b
Lastly, Section 11 details possible civil and criminal penalties for violations of the ESA, any
implementing regulations, and any permits issued under the ESA or the regulations.'
Section 9's Take Prohibitions and Habitat Modification
While Sections 4, 7 and 10 describe the obligations of the Services under the Act, Section 9, the
legal prohibition against "take" of an ESA-listed species, represents the real teeth of the Act for
private individuals.8 Along with prohibiting the importation, exportation, and interstate sale of
endangered species,9 the Act also prohibits the "taking" of any endangered species within the
United States or upon the high seas by anyone under United States jurisdiction. 10
What constitutes a prohibited take is defined broadly, and includes actions "to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such
conduct."" While affirmative actions to trap, capture, or kill a listed species should be easily
identified and avoided, it is the term "harm" that has proven most difficult to define. The ESA
defines "harm" as constituting "an act which actually kills or injures wildlife."12 Harming a
species may be indirect, in that the harm may be caused by habitat modification, but habitat
'http://www.nmfs.noaa.gov/pr/species/esa/fish.htm (last visited March 16, 2009).
216 U.S.C. § 1533 (2009).
316 U.S.C. § 1536 (2009).
416 U.S.C. § 1538 (2009).
516 U.S.C. § 1533(d) (2009).
616 U.S.C. § 1539 (2009).
7 16 U.S.C. § 1540 (2009).
816 U.S.C. § 1538 (2009).
916 U.S.C. § 1538(a)(1)(A), (E)-(F) (2009).
1016 U.S.C. § 1538(a)(1)(B)-(C) (2009).
1116 U.S.C. § 1532(19) (2009).
12 /d.
April 6, 2009
Page 3
modification does not constitute harm unless it "actually kills or injures wildlife." 13 Such act
may include significantly impairing essential behavioral patterns, including breeding,
spawning, feeding or sheltering. 14 15
Clearly, activities that reduce surface flows and cause discharge of contaminants may result in
take of a listed fish species. In response to the American Fisheries Society and numerous citizen
petitions for protection, many of the most depressed salmonid populations are now federally
listed under the ESA; at present there are 28 separate and evolutionarily distinct stocks of
salmonids in California, Oregon, and Washington listed as threatened or endangered .16 In the
vast majority of these declines, and in most every salmonid ESA listing, sheer lack of water,
resulting in part from surface diversions, has been identified as a major contributing factor. 17 In
one survey of salmon problems commissioned by the legislatures of California and Oregon,
researchers found that, "[d]iversion of water is potentially one of the most serious factors
adversely affecting salmon in western Oregon and northern California."18 Likewise, the health of
a river's habitat is clearly influenced by land use, and by the resulting quantities and quality of
wastewater discharge and stormwater runoff. 19
ESA Case Law Concerning Surface an d Groundwater Withdrawals, Wastewater Discharge
Under the ESA as defined above, both government entities and individuals are subject to the
jurisdiction of ESA when authorizing activities such as water withdrawals and wastewater
discharge. Despite the clear potential for take of listed species through these activities, there is a
nearly complete lack of published ESA case law that discusses the issue. However, the lack of
case law should not be interpreted as a lack of liability for water withdrawals and wastewater
discharges that cause take. Several factors will typically limit published cases, from a plaintiff s
13 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), 515 U.S. 687 (1995). In
upholding the definition of "harm" as encompassing habitat modification, the Supreme Court emphasized that
"every term in the regulation's definition of 'harm' is subservient to the phrase 'an act which actually kills or
injures wildlife."' Id. at 700, n. 13.
14 50 C.F.R. § 17.3 (2002).
15 The first salmonid water-related action that was barred by the courts as an illegal take under the ESA was a
federal enforcement action again Glenn-Colusa Irrigation District for entrainment of Sacramento River winter-run
Chinook by irrigation water diversion pumps. United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1135
(E.D. Cal. 1992).
16 http://www.nwr.noaa.gov/ESA-Salmon-Listings/upload/snapshot-9-08.pdf (last visited March 6, 2009).
17 See, e.g., Threatened Status for Central California Coho Salmon Evolutionary Significant Unit, 61 CFR 56, 138, 56,
141 (Oct. 31, 1996), identifying "dewatering" of river habitat as a factor in the decline of coho salmon.
18 See Botkin, D. et al. Status and Future of salmon of Western Oregon and Northern California: Findings and
Options. Report #8. The Center for the Study of the Environment, Santa Barbara, California. (1995).
19" Plainly, lack of water is not the only cause of river harm. Watercourse health is a function of the quantity and
quality of water, both of which are related and impacted by a variety of factors. The quantity of water in any
particular watercourse depends not only upon the extent of any diversions from the watercourse and any
hydrologically connected aquifers but also on land use which partially dictates the timing and quantities of runoff."
Rasband, J. Priority, Probability, and Proximate Cause: Lessons from Tort Law About Imposing ESA Responsibility
for Wildlife Harm on Water Users and Other Joint Habitat Modifiers. 33 Envtl. L. 595, 618-23, 628-30 (2003).
April 6, 2009
Page 4
choice of defendant to the ultimate goal of the suit. Here, citizen suit plaintiffs have primarily
chosen to attack the actions of the permitting authorities, typically federal agencies, when
permitted actions are perceived to cause take.
While complying with the conditions of a federally issued permit may not relieve an actor of
ESA liability, it may act to deter citizen suits. Additionally, as described below, the legal
concepts of standing and causation have made the success of a lawsuit against a permitting actor,
rather an individual permittee, more likely.
Issue Two: What actions may increase or decrease vulnerability to citizen suits?
Section 11 's Citizen Suit Enforcement Mechanism
According to the Supreme Court, the ESA's citizen suit provision, contained in Section 11, is "an
authorization of remarkable breadth," and one that has been used extensively to challenge the
way in which the Services carry out their duties under ESA.20 To encourage citizen suits, the
ESA eliminates many of the traditional federal jurisdiction requirements for jurisdiction over
citizen suit claims. Under the citizen suit provisions, any person with standing may seek to
compel the Secretary to list or delist species deemed threatened or endangered, or to designate
critical habitat for listed species.
The ESA also expressly grants to any person with standing the right to commence legal action
against any other person or entity, including the United States or any other government entity,
acting in violation of the ESA.21 But despite the breadth of the statute's authorization, the ESA
also encourages low-level case resolution. Case law review shows that the § 1540(g)(1)(A) suits
against non-federal actors rarely result in court opinions. Two possible explanations may lie in
the jurisdictional and remedy portions of the statute.
Under Section 11, a citizen may not bring suit prior to sixty days after written notice of an
alleged violation has been given to the Secretary and alleged violator, a jurisdictional
requirement that must be met before a case can proceed? "A failure to comply with the notice
requirement acts as an absolute bar to bringing suit under the ESA .,,23 The purpose of the 60-day
notice provision is to put the agencies on notice of a perceived violation of the statute and an
intent to sue. When given notice, the agencies have an opportunity to review their actions and
take corrective measures if warranted, to eliminate the perceived taking or to apply to the
Services for the appropriate authorization. The provision therefore provides an opportunity for
settlement or other resolution of a dispute without litigation.
20 Bennet v. Spear, 520 U.S. 154, 164 (1997).
21 A citizen suit not related to the Secretaries' obligations under ESA is known as a §1540(g)(1)(A) suit.
22 Southwest Ctr. for Biological Diversity v. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir.1998).
23 id.
April 6, 2009
Page 5
Also encouraging settlement is Section I I's limited remedy scheme. The only remedy afforded
a Section 11 plaintiff in a citizen suit for violation of ESA is injunction; Section I I's civil and
criminal penalties are reserved for enforcement actions and are not remedies available to private
party plaintiffs.24 Thus, if early notice gives the parties an opportunity to resolve the perceived
harm, the injury has been redressed and the plaintiff no longer has standing before the court. The
ESA expressly authorizes the Court to award attorney fees "whenever the court determines such
award is appropriate" to further encourage settlement in good faith 25
Common Citizen Suit Subject Matter
The perception exists that most ESA citizen suits are brought by organizations seeking to
broaden the scope of the ESA; however, citizen suits that have developed the water withdrawal
take area of the ESA case law are often challenges to limitations in water deliveries imposed on
Bureau of Reclamation (Bureau) by the Services. The clearest instance in which a court upheld
water diversions alone as constituting a prohibited take is a Klamath Basin case challenging the
legitimacy of ESA-required irrigation reductions for users of the Bureau's Klamath Irrigation
Project (Project) 26 Pursuant to Section 7 consultation, the Services required the Bureau to
sharply reduce Project water deliveries to keep more water in-river for threatened coho salmon
and in Upper Klamath Lake for resident sucker fish. The Project-dependent irrigators sued to
overturn those 2001 BiOps in Kandra v. United States; the court held that the water-scarcity
mitigation measures that_protected ESA-listed fish could be required of the Bureau and were
27
consistent with the ESA.
The Interplay of Causation and Standing
Harmful habitat modification is most often the result of multiple actors, that reality can make it
2416 U.S.C. § 1540 details civil penalties that can range from $500 to $25,000 per violation. Knowing violations of
the ESA, rules adopted pursuant to the ESA, or permits or certificates issued under the ESA can result in civil
penalties ranging from $12,000 to $25,000. Any other violation can be assessed a civil penalty of up to $500 per
violation. A person who knowingly violates most provisions of Section 9 of the ESA is subject to criminal penalties
of a fine of not more than $50,000 or imprisonment of up to one year, or both. A person who knowingly violates
any other provision of the ESA can be fined up to $25,000, imprisoned up to 6 months, or both. A knowing
violation occurs when the violator knowingly commits the action, regardless of whether or not he is aware the
action violates the ESA.
2516 U.S.C. § 1540(8)(4) (1999)
26 During 2000, the Bureau of Reclamation had failed to consult under Section 7 on the impacts of its Klamath
Project's 2000 Annual Operations Plan, resulting in a lawsuit. On April 3, 2001, the Bureau was ordered to consult
with the Services on its 2001 Annual Operations Plan, and was also enjoined from any further water deliveries to
its contract irrigators until it did so. Pac. Coast Fed'n of Fishermen's Assns. v. U.S. Bureau of Reclamation, 138 F.
Supp. 2d 1228, 1250 (N.D. Cal. 2001). Two 2001 BiOps were issued that, for the first time, were based on flow
needs for lower river coho salmon developed in the Hardy Flow Study and on minimum lake level needs for
endangered suckers. Pac. Coast Fed'n of Fishermen's Ass'ns. v. U.S. Bureau of Reclamation, No. C02-02006-SBA,
2003 U.S. Dist. LEXIS 13745, at *13-* 14 (N.D. Cal. July 14, 2003), rev'd on other grounds, 426 F.3d 1082 (9th Cir.
2005).
27 Kandra v. United States, 145 F. Supp. 2d 1192, 1207 (D. Or. 2001).
April 6, 2009
Page 6
difficult for a defendant to establish "standing". Standing is defined as the right to commence
legal action, established by showing a concrete, imminent injury traceable to the defendant's
action that can be redressed by a favorable decision. 28
While a plaintiff may be able to establish that an agency's actions resulted in foreseeable harm,
stopping that action may not redress the harm if the other habitat modifiers continue. A variety
of actions combine to cause take; diversion, stormwater runoff, and groundwater pumping can
combine to result in harm to of a listed fish species. Where enjoining the actions of a few
defendants is insufficient to redress the harm, the plaintiff has no standing to bring suit.
The traditional causation analysis applied in ESA cases requires a defendant's actions be the
proximate cause of the death or injury of the wildlife harmed, requiring that the harm be a
foreseeable consequence of a knowing action.29 However, in at least one 9th Circuit case, this
approach was not employed.
In Pyramid Lake Paiute Tribe v. U.S. Dept of Navy, the plaintiff alleged the Navy violated ESA
Section 9 because its diversions from the Truckee River in Nevada lowered the water level in
Pyramid Lake, and consequently, the clearance at the delta between the Lake and the Truckee
River, up which the fish must travel to spawn.30 Denying the plaintiff s claim, the court held that
no harm was shown, as "[t]he evidence does not establish that any one year's diversions of
Project water has actually caused the cui-ui's spawning problems"; and the Tribe failed "to
distN.uish the Navy from other users of Truckee River water," one of whom was the Tribe
itself. 1
Conclusion
ESA-prohibits take of endangered species, and assigns liability to any actor who causes it, either
directly or through habitat modification. However, citizen suits against small government actors
have not proven to be a popular mechanism for enforcing the Act's prohibitions. Nevertheless,
these entities face possible liability when their actions through water withdrawals and wastewater
28 Standing is defined as "the question of... whether the litigant is entitled to have the court decide the merits of
the dispute or of particular issues." Worth v. Seldin, 422 U.S. 490, 498 (1975). Article Three of the United States
Constitution requires a plaintiff establish standing by showing:
(1) it has suffered an injury in fact that is
(a) concrete and particularized and
(b) actual and imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
29 Sweet Home, 515 U.S. at 700, n.13, calling for the application of "ordinary requirements of proximate causation
and foreseeability."
30898 F.2d 1410 (9th Cir. 1990). The 9th Circuit's decision reflects the unresolved difficulty in applying traditional
tort law concepts such as proximate cause to water withdrawal issues, in which users are not equally positioned,
due to the first-in-time, first-in-right nature of water use seniority. See Rasband, J., above at fn. 19.
31/d.at 1420.
April 6, 2009
Page 7
discharge result in take of a species through habitat modification. Through careful compliance
with all permit conditions, the risk of liability can be further reduced.
CENTRAL OREGON ESA RISK EVALUATION:
DESCHUTES COUNTY FINDINGS AND
RECOMMENDATIONS
PREPARED FOR:
Central Oregon Intergovernmental Council (COIC)
Redmond, OR
Contact: Katrina Van Dis
and
Deschutes County
Bend, OR
Contact: Dave Inbody
PREPARED BY:
ICF Jones & Stokes
317 Alder Street, Suite 800
Portland, OR 97204
Contact: John Runyon
503/358-9608
September 2009
wwwww~
1CF1Sct'ao"kse"s'a~IQ Mrmnvood fonpany
ICF Jones & Stokes. Central Oregon ESA Risk Evaluation: Deschutes County Findings and
Recommendations. September. (ICF J&S Project 00885.08) Portland, OR. Prepared for COIC, Redmond,
OR.
Contents
Page
Introduction ...........................................................................................................................1
Context and Steelhead Trout Presence 2
Land Use 2
Stormwater Management 5
Pest Control 7
Routine Road Maintenance 8
Conclusions and Recommendations 9
Appendix A Detailed Description of Deschutes County's Codes and Policies
Reviewed and the Evaluation for ESA Risk
Tables
On Page
Table I. Pesticides that Require No-Spray Buffers to Protect Threatened and Endangered Pacific
Salmon and Steelhead 8
Table 2. Recommended Actions to Reduce ESA-Related Risk from Deschutes County Policies
and Practices 10
Figures
On Page
Figure 1. Reintroduced Steelhead Range of Distribution 3
Acronyms and Abbreviations
BMPs
best management practices
COIC
Central Oregon Intergovernmental Council
COSM
Central Oregon Stormwater Manual
County
Deschutes County
DEQ
Department of Environmental Quality
ESA
Endangered Species Act
FEMA
Federal Emergency Management Agency
jurisdictions
cities and counties of central Oregon
MRCI
Municipal, Residential, Commercial, and Industrial
NFIP
National Flood Insurance Program
NMFS
National Marine Fisheries Service
ODA
Oregon Department of Agriculture's
ODOT
Oregon Department of Transportation
T2
Technology Transfer
WSDOT
Washington State Department of Transportation
Introduction
Steelhead trout, which are listed as threatened under the Endangered Species Act (ESA), are being
reintroduced into the Upper Deschutes Basin. The cities and counties of central Oregon (the jurisdictions)
are evaluating whether current local government policies and practices are sufficiently protective of
steelhead trout and their habitat. Specifically, the jurisdictions desire to avoid the "take" of reintroduced
steelhead trout, and reduce the potential of ESA-related enforcement actions and third-party lawsuits.
This report describes ICF Jones & Stokes' evaluation of Deschutes County's (County's) policies and
practices to determine its potential for take of listed steelhead trout. ICF Jones & Stokes gathered the
information for this evaluation from County documents and during a meeting with County staff on
February 19, 2009.
The intent of this evaluation is to describe areas of potential ESA risk for the County to consider in
planning a strategy to support the conservation of steelhead trout while achieving regulatory predictability
and protection from take liability. The County's ESA risk evaluation, in combination with information
from the evaluation of the other Upper Deschutes Basin cities' and counties' policies and practices,
provides a framework to respond to the presence of reintroduced steelhead trout through take limit
certification under ESA Section 4(d), or other policy or programmatic steps.
ICF Jones & Stokes used the following documents as guidance for the evaluation of the County's policies
and practices:
• National Marine Fisheries Service (NMFS) Citizen's Guide to 4(d) Rules
• Oregon Department of Transportation (ODOT) Routine Road Maintenance Water Quality and Habitat
Guide (Routine Road Maintenance Guide
• Oregon Association of Clean Water Agencies Endangered Species Act (ESA) Manual
• Washington State Department of Transportation (WSDOT) Road Maintenance Manual
These documents are particularly relevant because they include specific risk assessment standards and
criteria for activities that have been identified by the jurisdictions for evaluation.
In addition to these documents, ICF Jones & Stokes evaluated the County's policies and practices for
conformance to other best management practices (BMPs) designed to protect water quality, floodplain
process, and aquatic habitat. These BMPs are described in a variety of documents and scientific studies.
Because it is designed for the Upper Deschutes Basin's unique climate, hydrology, and landforms, the
BMPs described in the Central Oregon Stormwater Manual (COSM) provided additional guidance for
evaluation of stormwater practices.
This report focuses on the four categories of activities identified by the County for evaluation:
• land use,
• stormwater management,
• pest control (herbicides and pesticides),
• routine road maintenance,
For each category we identified specific criteria used to evaluate the policies and practices with the
potential to affect listed steelhead trout and their habitat. For each criterion we have summarized the
County's practices and assessed the current level of protection afforded to steelhead trout as a result of the
policy or practice.
Central Oregon Intergovernmental Council and
Deschutes County
The level of protection from ESA risk is determined within the following categories:
Policies/practices adequately address ESA risk
Policies/practices possess some ESA risk
Policies/practices are inadequate and do not address ESA risk
Where the policy or practice does not conform to the accepted level of protection and presents some ESA
risk, the rationale for the variance is described. In addition and where appropriate, we recommend
potential modifications to the policy and practice to better address ESA risk.
Appendix 1 contains a detailed description of the County codes, policies and practices reviewed and the
evaluation for ESA risk. The following is a summary of our findings.
Context and steelhead trout presence
Steelhead trout were historically present in waterways within Deschutes County, including portions of the
Deschutes River, Crooked River, and Whychus Creek (Figure 1). Steelhead trout have been reintroduced
into these waterways and use various parts of the system for migration, spawning, and juvenile rearing.
Because these fish are present in the County's rivers and streams, there is risk that the County's activities
could impact steelhead trout populations or aquatic habitat. Because the County does not authorize or
participate in high-risk activities, such as water diversions, there is minimal risk that the County's
activities could directly cause steelhead trout mortality. The County's practices, however, can indirectly
affect steelhead trout. These indirect effects can include changes in riparian habitat, floodplain function,
erosion control, or other practices that could negatively impact fish populations or habitatwhere steelhead
trout are present.
It is important to note that reintroduced steelhead trout are blocked from upstream movement to the Upper
Deschutes River at Big Falls, approximately 30 miles downstream from Bend. As a consequence, there is
minimal risk that the County's activities in areas along the Deschutes River or its tributaries above Big
Falls could have a direct impact on steelhead trout populations or aquatic habitat. The County's practices,
however, can indirectly affect steelhead trout in the Deschutes River downstream of Big Falls through
changes in water quality. Loss of riparian shade through the application of County policies, for example,
could increase water temperatures in downstream portions of the Deschutes River.
Land use
ICF Jones & Stokes evaluated the County's land use plans, policies, and activities for its potential to cause
take of listed steelhead trout. The land use portion of this evaluation was based on objectives identified by
NMFS under Limit 12 of the 4(d) Rule for Threatened Salmon and Steelhead on the West Coast-the
Municipal, Residential, Commercial, and Industrial Development, and Redevelopment (MRCI) limit (4(d)
Rule). By evaluating the County plans and policies compared to the 4(d) Rule objectives, ICF Jones &
Stokes determined the extent to which land use and development policies and practices adequately protect
listed steelhead trout. While most of the MRCI limit objectives were used as part of the land use and
development evaluation, some of the MRCI limit's objectives were addressed under other activity
categories.
Oregon ESA Risk Evaluation: Z September 2109
Deschutes County Findings and Recommendations ICF AS 00885.09
Central Oregon Intergovernmental Council and
Deschutes County
Figure 1. Reintroduced Steelhead Range of Distribution
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Legend
Central Oregon
C County Boundary Private Individuals or Companies N ESA Risk Assessment
Urban Growth Boundary Forest Service
W+L
- Highway Bureau of Land Management Figure 1.
9treamslRivers Tribal 5
Stesihead Distribution h4~ state 0 b 10 Reintroduced Steelhead
0 Dam Locations Bureau of Reclamation Range of Distribution
® Warm Springs Reservation County Miles
Oregon ESA Risk Evaluation: September 2009
Deschutes County Findings and Recommendations 3 1CF AS 00885.08
Central Oregon Intergovernmental Council and
Deschutes County
Land Use Question 1: Are the locations of important natural resources and habitat areas mapped?
Answer: Most County natural resources have been inventoried and mapped. Wetland areas in the north
county area closest to steelhead habitat are comprehensively mapped, but portions in the southern portions
of the County are not inventoried or mapped.
Risk Assessment: ' Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: During interviews, the County stated their intention
to conduct a wetland inventory to gather more comprehensive wetland data, particularly in south
Deschutes County. This action should address ESA risk.
Land Use Question 2: Do the County's development policies and practices adequately protect riparian
areas?
Answer: Though development is prohibited within the riparian corridor, vegetation removal is allowable
in all but the 10 ft conservation easement along waterways.
Risk Assessment: Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: The removal of riparian vegetation up to 10 ft from
streams could result in impacts to steelhead habitat. In addition, removal of riparian vegetation along the
Deschutes River and other streams above steelhead habitat can contribute to water quality impacts such as
temperature increases and sedimentation that could affect steelhead populations. The County should
consider applying more restrictive vegetation removal limitations within riparian corridors.
Land Use Question 3: Does the County 's development code adequately protect historic stream
meander patterns and channel migration zones?
Answer: The County has not comprehensively mapped channel migration zones, nor are there
development restrictions in place for channel migration zones. New stream crossings are permitted within
a floodway, subject to approval provisions but the county currently has few river crossings.
Risk Assessment: Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: Maintaining channel migration zones are critical for
protecting floodplain and riparian habitats and ecological functions that are important for steelhead. The
County should consider mapping and, where appropriate, protecting channel migration zones.
Land Use Question 4: How does the County's development code address development in the
floodplain?
Answer: Floodplain protection ordinances specify design requirements to minimize property loss and
damage as per FEMA regulations.
Risk Assessment: *Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: In September 2008, NMFS issued a Biological
Opinion for the Puget Sound region of Washington State as a result of a lawsuit filed by the National
Wildlife Federation (NWF v. FEMA, 2003). In the Biological Opinion, NMFS states that it considers the
issuance of floodplain development permits as a take under the ESA unless impacts on listed species are
addressed. The reasons given by NMFS for how implementation of the National Flood Insurance Program
(NFIP) affects listed species and their habitat are as follows:
• NFIP minimum criteria allow new development in the floodplain if placed on fill or stem walls at
or above the bankfull elevation.
Oregon ESA Risk Evaluation: 4 September 2009
Deschutes County Findings and Recommendations ICFAS00885.08
Central Oregon Intergovernmental Council and
Deschutes County
• Existing structures may be expanded or redeveloped so long as the project does not exceed 50% of the
building's value-this expansion is not subject to the more stringent NFIP standards for new
development.
NMFS considered these actions harmful to listed salmon and steelhead because they:
• reduce the habitat area for fish;
• limit refuge during flood events;
• increase blockages and stranding risks; and
• allow the removal of native vegetation.
A similar lawsuit was filed in federal court in Portland June, 2009. The lawsuit alleges that the Federal
Emergency Management Agency (FEMA) has violated federal law by enabling floodplain development in
Oregon without considering impacts on threatened and endangered fish and wildlife species. The
complaint and injunction request asks the court to prohibit "FEMA's issuance and authorization of flood
insurance policies for new development within the geographic range of the potentially impacted listed
species in Oregon until FEMA completes consultation with the Secretary and ensures that continued
implementation of the NFIP does not jeopardize listed species in Oregon." The complaint was filed by the
Pacific Environmental Advocacy Center for the Audubon Society of Portland, Northwest Environmental
Defense Center, National Wildlife Federation, Willamette Riverkeeper and Association of Northwest
Steelheaders.
The County contains waterways where steelhead trout were historically present and are being
reintroduced, which means that there can be impacts on steelhead trout habitat from floodplain
development. To help promote quality habitat and ecological processes, the County should consider
impacts on floodplain areas. The County should review the Biological Opinion issued by NMFS
(http://www.nwr.noaa.gov/Salmon-Habitat/ESA-Consultations/FEMA-BO.cfm) and determine how best
to implement the recommendations for revising floodplain development requirements so that the County
avoids, minimizes, and/or mitigates impacts to floodplain habitat.
Land Use Question 5: Does the County's development code and practices adequately protect wetland
areas?
Answer: The County has development restrictions for wetland areas. Wetland areas in the north county
area closest to steelhead habitat are comprehensively mapped, but portions in the southern portions of the
County are not inventoried or mapped.
Risk Assessment: Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: During interviews, the County stated their intention
to conduct a wetland inventory to gather more comprehensive wetland data, particularly in south
Deschutes County. This action, combined with implementation of proper development restrictions for
wetland areas, should address ESA risk.
Stormwater management
In order to protect ESA-listed fish species, NMFS requires that development ordinances adequately
prevent stormwater discharges from impacting water quality and quantity and stream flow patterns in the
watershed. These impacts include peak and base flows in perennial streams. NMFS states that stormwater
management programs must require development activities to preserve or enhance stream flow patterns so
they are as close as possible to the historic peak flows, base flows, durations, volumes, and velocities.
These flows can be accomplished by reducing impervious surfaces and maintaining vegetation cover and
Oregon ESA Risk Evaluation: 5 September 2009
Deschutes County Findings and Recommendations ICFAS 00885.08
Central Oregon Intergovernmental Council and
Deschutes County
natural soils. These conditions will, in turn, maintain essential habitat processes such as natural water
infiltration rates, transpiration rates, stormwater runoff rates, and sediment filtering, and they will provide
hydrographic conditions that will maintain and sustain aquatic life.
Stormwater Management Question 1: Do the County's policies and practices ensure that stormwater
from new development or redevelopment will not impact water quality offish-bearing streams?
Answer: During the ESA risk assessment interview, Deschutes County staff indicated that stormwater
controls are inconsistently addressed in the development review process. Standards contained in the
COSM are not necessarily included in site plan applications unless the applicant voluntarily does so.
County Environmental Health personnel occasionally conduct informal stormwater reviews during on-site
wastewater treatment system permitting and installation inspections, but this is not done routinely.
Risk Assessment: ' Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: The County's current approach to stormwater
management is inadequate to ensure that stormwater from new development will not impact the water
quality of fish-bearing streams. The County and other participants are in the process of updating the
COSM. Once revisions are completed, the County should consider adopting applicable portions of the
COSM, and fund staff to specifically enforce the drainage design provisions contained in this manual.
The County should consider mapping and providing routine maintenance on the piped stormwater system
in La Pine that discharges untreated stormwater into a wetland adjacent to the Little Deschutes River, at
least until these functions can be taken over by the City of La Pine.
Stormwater Management Question 2: Do development policies and practices protect historic stream
flow patterns such as peak and base flows in perennial streams?
Answer: County staff direct project designers to the COSM, but the manual has not been officially
adopted by the County and therefore cannot be enforced. Although County Code states that all drywells be
constructed to current Oregon Department of Environmental Quality (DEQ) standards, County staff have
not allowed drywells for several years, and instead require the use of drainage swales.
Risk Assessment: 6 Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: Low-impact development techniques emphasize on-
site treatment of stormwater, which minimize stormwater conveyance to streams. The County and other
participants are in the process of updating the COSM. Once revisions are completed, the County should
consider adopting appropriate portions of the COSM, and encourage the use of low-impact development
techniques that promote impervious surface reduction, the on-site retention of stormwater, and that
minimize clearing of native vegetation.
Stormwater Management Question 3: Do development policies and practices require best
management practices (BMPs) that establish erosion and sediment controls during and after
construction?
Answer: Existing requirements for erosion and sediment controls are weak and scattered throughout the
Deschutes County Code, which could result in significant on-site erosion during site clearing, grading, and
construction.
Risk Assessment: ' Policies/practices are inadequate and do not address ESA risk
Risk Assessment Rationale and Recommendation: The current status of erosion control practices could
result in significant on-site erosion as well as the discharge of sediment-contaminated stormwater into
catch basins, dry wells, wetlands, and water bodies including the Little Deschutes River, the Deschutes
River, and Tumalo Creek. The County and other participants are in the process of updating the COSM.
Once revisions are completed, the County should consider adopting appropriate portions of the COSM,
Oregon ESA Risk Evaluation: 6 September 2009
Deschutes County Findings and Recommendations ICFAS 00885.08
Central Oregon Intergovernmental Council and
Deschutes County
particularly the erosion and sediment control measures described in Chapter 9 of the Manual.
Stormwater Management Question 4: Are there mechanisms in place and adequate levels of funding
and resources for program implementation, monitoring, enforcement, and reporting?
Answer: The County does not have a stormwater utility that could provide permanent, dedicated
funding for stormwater program implementation, monitoring, enforcement, and reporting. During the
interview, County staff indicated that there are no immediate plans to develop a stormwater master plan.
Risk Assessment: e* Policies/practices are inadequate and do not address ESA risk
Risk Assessment Rationale and Recommendation: The County's current approach to stormwater
management does not provide adequate levels of funding and resources for program implementation,
monitoring, enforcement, and reporting. The County should consider forming a stormwater utility, or
investigate other mechanisms to adequately fund stormwater program implementation including planning,
public education, maintenance, monitoring, enforcement, and capital facilities improvements.
Pest control
The evaluation of pest control focused on the County's use of pesticides. Pesticide management plans and
policies were reviewed to determine the potential for take of listed steelhead. The evaluation was based on
the Oregon Department of Agriculture's (ODA's) guidelines and recent guidance from NMFS.
Pest Control Question 1: What pesticides are currently used by the County?
Pest Control Question 2: How does the County determine what pesticides can be used?
Pest Control Question 3: Does the County maintain guidance on appropriate locations and methods
for the application of pesticides?
Answer: County does not use pesticides; the County applies herbicides approved by the Oregon
Department of Agriculture (ODA) and per EPA label guidelines.
Risk Assessment: Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation:
The County rarely applies herbicides that are of concern. A pesticide's label is the law and should be
followed. In most cases, use restrictions on a pesticide's label are designed to minimize risks to the
environment. However, the County should be aware of, and when appropriate, recommend conservative
buffer zone restrictions outlined in the Washington Toxics Coalition (WTC) ruling of 2004. The
pesticides and waterways impacted are listed on the following website:
(http://www.oregon.gov/ODA/PEST/buffers.shtml).
In general, the following "no-spray" buffer zones are required for the application of the pesticides listed in
Table I along waterways with listed salmon or steelhead trout:
• 20-yard no-spray buffer for ground application, and
• 100-yard no-spray buffer for aerial application.
Oregon ESA Risk Evaluation: September 2009
Deschutes County Findings and Recommendations ICF AS 00885.08
Central Oregon Intergovernmental Council and
Deschutes County
Table 1. Pesticides that Require No-Spray Buffers to Protect Threatened and Endangered
Pacific Salmon and Steelhead
2,4-D (aquatic uses only)
Azinphos-methyl
(Guthion)
Carbofuran*(Furadan)
Bensulide (Prefar) Bromoxynil (Buctril)
Carbaryl (Sevin)
Diazinon (many brand
names)
Ethoprop (Mocap)
Dimethoate(Cygon)
Fenbutatin-oxide
(Vendex)
Methidathion (Supracide) Methomyl (Lannate)
Naled (Dibrom) Phorate (Thimet)
Triclopyr BEE (Garton 4) Trifluralin (Treflan)
Source: Oregon Department of Agriculture
Routine road maintenance
Chlorothalonil (Bravo) Chlorpyrifos (Dursban,
Lorsban)
Disulfoton (Di-Syston)
Diuron (Direx, Karmex) -
non-crop uses
Lindane (Lindane)
Malathion (many brand
names)
Methyl-parathion
Metolachlor (Dual)
(Penncap-M)
Prometryn (Caparol)
Propargite (Omite,
Comite)
The County's routine road maintenance practices were evaluated to determine if they are substantially
similar to-and at least as protective as-the ODOT Routine Road Maintenance Guide (ODOT Guide)
practices approved under the current 4(d) Rule. Should the County's practices differ from the ODOT
Guide, either in organization or in substance, the evaluation will determine whether the practice is less
protective, as protective as, or more protective than the ODOT guidance. The evaluation also examines
the extent to which the County can identify all road locations where maintenance activities may affect
streams and the locations of critical steelhead trout habitat adjacent to roads.
Routine Road Maintenance Question 1: To what extent does the County rely upon and implement the
ODOT Routine Road Maintenance Guide?
Answer: The County applies the ODOT Guide but has not specifically adopted it.
Risk Assessment: Policies/practices possess some ESA risk
Risk Assessment Rationale and Recommendation: Because the ODOT Guide has been adopted by
NMFS under the 4(d) Rule for salmon and steelhead trout, the County should formally incorporate or
adopt procedures from the guidance to guide how it conducts road maintenance procedures. The County
should also consider the following recommendations to ensure adequate documentation exists on how it
conducts road maintenance in the event an incident occurs that impacts a steelhead trout-bearing
waterway:
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 streams and rivers.
Oregon ESA Risk Evaluation: September 2009
Deschutes County Findings and Recommendations 8 ICF AS 00885.08
Central Oregon Intergovernmental Council and
Deschutes County
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 Guide 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; and
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 maps 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.
Conclusions and recommendations
The risk exposure to ESA enforcement actions or third-party lawsuits enforcement actions resulting from
Deschutes County's policies and practices is evaluated based on the application of BMPs and the presence
of steelhead trout in the affected waterways. In areas of the County that contain waterways where
steelhead trout are (or will be) reintroduced, the County has more ESA risk because the County's policies
and practices can impact water quality and riparian habitat that has direct pathways to portions of the
system where fish are present.
In the areas of the County upstream from steelhead trout-bearing portions of the Upper Deschutes Basin, it
is difficult to directly link the County's activities to steelhead trout population effects or modifications to
aquatic habitat. Because there are more limited pathways in these upstream areas that can affect steelhead
trout populations or aquatic habitat, there is less ESA-related risk.
Because the County does not authorize or participate in high-risk activates such as water diversions, there
is minimal risk that the County's activities could directly cause steelhead trout mortality. For the most
part, the County has applied BMPs in a manner that protects ecological processes and water quality that
support steelhead trout populations. Correct application of the BMPs limits potential that the County's
policies and practices can affect steelhead trout or aquatic habitat. These BMPs, in combination with the
fact that harmful habitat modification is most often the result of multiple actors, means that the County has
minimal exposure to the risk of ESA enforcement actions or third-party lawsuits (see COIC Endangered
Species Act Liability Risk Assessment Memorandum, ICF Jones & Stokes, April 6, 2009).
Oregon ESA Risk Evaluation: September 2009
Deschutes County Findings and Recommendations 9 iCFAS 00885.08
Central Oregon Intergovernmental Council and
Deschutes County
There are, however, policies and practices that can be improved through programmatic adjustments to
further minimize the exposure to ESA risk and enhance environmental benefits. Important areas for
improvement include riparian, floodplain development, stormwater management and sediment control
BMPs. Table 2 outlines recommended actions for the four categories of activity identified by the County
for evaluation. Regardless of whether steelhead trout are present, these recommendations should be
applied throughout the County's jurisdiction. Improving County policies and practices will help maintain
aquatic habitat and watershed processes that will yield improvements to the environment that supports
steelhead trout and other aquatic and riparian dependant species.
Table 2. Recommended Actions to Reduce ESA-Related Risk from Deschutes County Policies
and Practices
County Policy or Practice
Recommendation
Land Use
The County should conduct a wetland inventory to gather more comprehensive
wetland data and mapping in south Deschutes County.
The County should consider applying more restrictive vegetation removal
limitations within riparian corridors.
The County should consider mapping and, where appropriate, protecting channel
migration zones.
The County should review recent NMFS floodplain development guidance and
determine how best to implement the recommendations for revising floodplain
development requirements so that the County avoids, minimizes, and/or
mitigates impacts to floodplain habitat.
Stormwater Management
Once revisions to the COSM are completed, the County should consider adopting
applicable portions of the COSM, and fund staff to specifically enforce the
drainage design provisions contained in this manual.
The County should consider mapping and providing routine maintenance on the
piped stormwater system in La Pine that discharges untreated stormwater into a
wetland adjacent to the Little Deschutes River, at least until these functions can
be taken over by the City of La Pine.
Once revisions to the COSM are completed, the County should consider adopting
portions of the COSM, and encourage the use of low-impact development
techniques that promote impervious surface reduction, the on-site retention of
stormwater, and that minimize clearing of native vegetation.
Once revisions to the COSM are completed, the County should consider adopting
portions of the COSM, particularly the erosion and sediment control measures
described in Chapter 9 of the Manual.
The County should consider mechanisms to adequately fund stormwater
program implementation.
Pest Control
The County should be aware of, and when appropriate, use "no-spray" buffer
zones designated by the 2004 WTC ruling.
Routine Road Maintenance
Because the ODOT Road Maintenance Guide has been adopted by NMFS under
the 4(d) Rule for salmon and steelhead trout, the County should formally
incorporate or adopt procedures from the guidance to guide implementation of
road maintenance procedures.
Oregon ESA Risk Evaluation: 10 September 2009
Deschutes County Findings and Recommendations ICF AS 00885.08
Appendix A:
Detailed Description of Deschutes County's Codes and
Policies Reviewed and the Evaluation for ESA Risk
Central Oregon ESA Risk Evaluation: September 2009
Deschutes County Findings and Recommendations ICF AS 00885.08
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Appendix A
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
Caplan
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 pestcides.
ESA Risk Assessment Evaluation Central Oregon Intergovernmental Council
4 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/
DATE: October 21, 2009
MEMORANDUM
TO: Board of Commissioners
FROM Nick Lelack, Planning Director
SUBJECT: City of La Pine Comprehensive Plan
The purpose of this work session agenda item is to provide an opportunity for the City of La
Pine's Comprehensive Plan consultants, Deborah McMahon and James Lewis, to briefly
present and discuss with the Board the City of La Pine's draft of its first Comprehensive Plan.
The County is one of the largest property owners in the City, a service provider, and partner with
the City on several initiatives such as improving the transportation system. Therefore, the
County has a significant interest in the Plan.
On October 13, 2009 the City of La Pine Planning Commission conducted its first public hearing
on the draft Plan and establishment of an Urban Growth Boundary (UGB). The City is aiming to
adopt the Plan in mid 2010.
Within the proposed UGB, which is proposed to be the same boundary as the incorporated City
limits boundary, a corresponding Comprehensive Plan Map is also being considered. Please
find the map attached as well as a description of the proposed transition areas (hatched areas
on the map). A part of the County-owned New Neighborhood is included in a transition area. In
addition, a 500-foot wide open space corridor is proposed through a previously planned 200-foot
corridor.
Quality Services Perfonned zvith Pride
FOR INCLUSION IN URBANIZATION SECTION GOAL 14
Transition Areas
The two Transition Areas within the City (as shown on the Comprehensive Plan map) are
located along the Burgess Road and Highway 97corridors (in the northern part of the
City) and on some undeveloped properties in the southern part of the City where single
family residential land abuts industrial land. The Transition Areas, which total 158.5
acres, were so designated due to the fact that these areas were primarily undeveloped
larger lots and are located in areas where adjoining land uses and transportation facilities
could cause conflicts between uses. Additionally, these properties are located in areas
where increased residential density and/or a mix of residential and commercial uses may
be appropriate due to their proximity to major transportation corridors and existing
facilities and services.
North Transition Area
The Transition Area in the north is approximately 110 acres and includes a large
undeveloped area on the north side of Burgess Road and an undeveloped parcel along
Highway 97 south of the Burgess/Highway 97 intersection, as well as the majority of the
length of the south side of Burgess Road. Although the underlying designations on the
Comprehensive Plan map for these areas are shown as Master Planned Residential,
Multi-Family Residential and Forest, it is assumed that there may be necessary changes
to the land use development pattern in the future as a result of recent and planned
transportation system improvements. A traffic signal was recently installed at the
intersection of Burgess Road and Huntington Road (two arterial roadways) due to the
surrounding development pattern, the presence of a new school, the existing volume of
traffic, and the expected increase in volume of traffic in the immediate area. Also, the
Oregon Department Transportation has planned a new interchange at the Burgess Road
and Highway 97 intersection (Wickiup Junction) - this busy intersection has been a
safety hazard in the area for many years as it is a primary access point between the
western portions of La Pine and outlying areas, and the north/south Highway 97 corridor.
Because an increase in traffic volume can be expected on the roadways serving these
areas, it is assumed that this will have a long term influence on the livability and desired
development pattern. Also, because these areas lie adjacent to and between the
transportation facilities and areas with existing development (a large area developed with
single family residential on large lots north of Burgess Road), it is appropriate that any
development within these areas serve as a transitional buffer between the road corridor
and the existing and anticipated development. Further, because the Transition Area is in
close proximity to existing and planned commercial services, a school and a potential
transit corridor, an increase in density would be appropriate as more residents can be
served efficiently and effectively from these locations.
As the development and improvements to the transportation facilities occurs in the future,
a development pattern that includes a mixture of service commercial uses and medium
density residential development is desired. Such development should occur in a master
Paoa 1
planned fashion and should treat all sides of the development in a similar fashion - the
development must not be linear in nature and should tie together all sides of the
surrounding development.
South Transition Area
The Transition Area in the south is approximately 50 acres in area and includes large,
undeveloped parcels that lie along the southeastern edge of the City's Industrial district.
This area overlaps land that is currently designated for Single Family Residential uses,
but if developed as such, could pose compatibility problems with the anticipated
surrounding industrial development. Because of the Transition Area's location between
the main commercial center to the west and the industrial district to the east, it is a prime
area for multi-family dwelling development constructed in a fashion where higher
densities occur along the industrial edge and lower densities along the single family
residential edge.
As development of the industrial and single family residential areas occurs over time, the
development of the transition area as a graduated multi-family residential buffer between
the uses is desired. It is anticipated that the average density within the transition area will
be medium density, but portions along the edges will vary in their densities in a manner
that corresponds with the desired development pattern in the adjoining district. Such
development should occur in a master planned fashion and should treat all sides of the
development in a similar fashion - the development should be done in a manner where it
is integrated into the surrounding development pattern and be respective of all sides of
the surrounding uses.
Goals
1. Recognize that future infrastructure development, specifically transportation
improvements, will cause a change to the existing and anticipated land use
patterns over time.
2. Recognize that buffer development between potentially incompatible land
uses shall be implemented.
Policies
1. Transition Area Overlay Zones shall be created and located in portions of the
City where anticipated infrastructure development and adjoining land uses
may cause a change in the desired underlying land use patterns, and where
buffers between potentially incompatible land uses are necessary.
2. Development within Transition Areas shall be master planned to show an
inter-relationship between the proposed development, and infrastructure and
adjoining land uses.
3. Transition Area development shall allow increased residential densities along
primary transportation corridors.
4. Transition Area development shall not be linear in nature and shall be
comprised of a pattern that is integrated into and respective of the surrounding
development to the greatest extent practicable given parcel size and
configuration.
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5. Densities may be averaged over the entirety of the parcel, but shall transition
from higher densities adjacent to adjoining uses with the highest intensity to
lower densities adjacent to adjoining uses with lower intensities.
6. Guidelines for Transition Area development shall be implemented, but such
guidelines shall not be so specific as to prevent adaptability over time or to
limit good design.
Programs
1. Draft zoning regulations that specify land use guidelines for the Transition
Area Overlay Zones. Such regulations shall include provisions for master
plan development.
2. Coordinate transportation infrastructure improvements with State and County
agencies to ensure compatibility with adjoining land uses within Transition
Areas.
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Community Development Department
Planning Division Building Safety Division Environmental Health Division
117 NW Lafayette Avenue Bend Oregon 97701-1925
MEMORANDUM (541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
TO: Dave Kanner, County Administrator
FROM: Peter Russell, Senior Transportation Planner
DATE: October 13, 2009
MEETING: October 21, 2009
SUBJECT: Status report on Deschutes County Transportation System Plan (TSP) Update
BACKGROUND
The Deschutes County Transportation System Plan (TSP) was adopted on Aug. 26, 1998, by
the Board of County Commissioners as Ordinance 98-044. Given the dramatic changes in the
County in the intervening decade, the County began a TSP Update in Jan. 2007. The TSP
Update is funded by a $100,000 grant from the Transportation and Growth Management (TGM)
Program, which is run jointly by the Department of Land Conservation and Development
(DLCD) and the Oregon Department of Transportation (ODOT).
Staff has held kick off meeting in fall 2007 in Bend, La Pine, Redmond, Sisters, Terrebonne, and
Tumalo to solicit public input on transportation issues. Staff has also worked with the County
Road Department, the Deschutes County Bicycle and Pedestrian Advisory Committee (BPAC),
local jurisdictions, and ODOT to identify transportation issues.
The TSP, while centered on roads, covers a variety of modes. The various modes and the
issues raised are provided below. Staff hopes to have a draft TSP to submit to the Board by
late winter/early spring 2010. The TGM grant expires June 30, 2010.
Air
The major change will be moving the language related to the Bend Airport from the
comprehensive plan into the TSP. Staff will also work with the City of Bend staff and their
consultants, to incorporate changes to the Bend Airport Master Plan into the TSP as needed.
The future runway extensions for the Redmond Airport will be added to the TSP and how those
affect the alignment of OR 126. No issues have been raised regarding the Sisters Airport.
While there! is a group who has advocated an airport within La Pine, the City has declined to
pursue that facility at this time and the site lies outside the jurisdiction of the County.
Bike/ped
CDD and the Road Department have worked with BPAC and Sen. Wyden's Committee on
Central Oregon Recreational Assets. There was a fair degree of overlap in their desires for the
County to designate bicycle routes on selected County roads. (Currently, the County only has
shared shoulder bikeways.) This would require changes to shoulder widths, width of fog lines,
and signing the routes.
Quality Services Performed with Pride
r.-- c-,
The Wyden committee has identified a "Three Sisters Scenic Byway" that examined improving
road cycling in the County. Specifically, the Wyden subcommittee proposed 1) improving USFS
Road #41 between Bend and Sunriver; 2) provide a paved route between Sisters and Bend
besides U.S. 20; 3) identify key road segments to improve cycling between Bend, Sisters, and
Redmond.
Pedestrian concerns centered along identifying a trail system that utilized canal ditchrider roads
to reach Smith Rock State Park from Bend and Redmond. (Bike could use these, too). Finally,
the Tumalo areal desires a pedestrian trail along the Deschutes River from Tumalo State Park
to the community. In the past the County has not designated specific pedestrian trails or off-
road bicycling routes as these recreational amenities were provided by the US Forest Service
(USFS) and Bureau of Land Management (BLM) lands and that the County did not have a parks
district component.
Staff's proposal is to include the identified bike routes and trails on the TSP map. Having the
routes and trails on an adopted map can give an advantage when seeking grants to fund the
planned improvements.
Finance
Update the financial forecasts of the current TSP with those prepared for the establishment of
the County's transportation system development charge (SDC). Review project costs for those
carryovers from the current TSP. Review funding proposals including timely review of SDC
rate, regional gas tax, fees on studded tires, and bonding.
Roads
ODOT's Transportation Planning and Analysis Unit (TPAU) in Salem is producing the
transportation/land use model. The horizon year is 2030 and County staff have provided land
use and road information. The base year (2008) has been completed and calibrated. The
future volumes should be done by mid-November. Once those are done, the model will indicate
which segments on the state highway system and the County system are performing with
standard or are deficient.
During public outreach and working with the Road Department and ODOT the following topics
have been mentioned. These are given in particular order of importance.
19th Street: Staff is applying to amend the TSP map to add this rural arterial between
Deschutes Market and Redmond. The plan amendment requires an exception to Goal 3
(Agriculture). The first evidentiary hearing before the Planning Commission will be Dec. 17,
2009.
Terrebonne: Lower Bridge Way/97, potential solutions range from interchange, an overpass, a
couplet using 97 and 11th, or disconnecting and installing a traffic signal at B or C and 97, or a
bypass.
O'Neil Highway. Potentially an overpass as the first phase at O'Neil/97 with an interchange as
the ultimate fix; likely, this would be tied to development of a reload site on Prineville Railroad.
Curves on the Crook County end of O'Neil are causing length restrictions for trucks.
Smith Rock Way. Weight restrictions on bridges are adversely affecting trucks. The
combination of gravel trucks originating in Crook County destined for Redmond with length
restrictions on the O'Neil and weight restrictions on Smith Rock Way have led to truck using
17th, which was not designed with heavy loads and thus is rapidly deteriorating.
2
U.S. 97: Working with ODOT to add conceptual maps and more detail to a system of frontage
roads and medians between Bend and Redmond. This is furthering the "four phase" policy
approach in the current TSP on how to go from a two-lane highway to a four-lane facility via
passing lanes, raised medians and other access management tools, frontage/backage roads,
and grade-separated interchanges.
Deschutes Junction: Adding 19th Street and reclassifying Deschutes Market Road as an arterial
(the Board did this as part of the Bend UGB process, but the reclassification was tied to the
state approving the Bend UGB). Working with ODOT to get a conceptual design of an
upgraded Deschutes Junction interchange and associated access management decisions.
Tumalo: Continue working with ODOT to locate future grade-separated interchange in Tumalo
and incorporate the results of their Tumalo refinement plan into the TSP. Work with the agency
to determine the issues, opportunities, and constraints for a system of frontage/backloads and
access management to implement the "four phase approach" between Sisters and Bend.
South County. Isolated rural subdivisions needing secondary emergency access continues to
be a hot topic. Several members of the La Pine Transportation Advisory Group have expressed
interest that the County consider a roundabout at Burgess/Day when traffic signal warrants are
met.
Rail
Adopt the recommendations of the "Central Oregon Rail Plan" prepared for the Central Oregon
Area Commission on Transportation (COACT). This plan prioritizes improvements to or
closures of all at-grade rail crossings in the tri-counties.
Transit
Update the TSP to reflect the establishment of Cascades East Transit (CET) in the tri-County
area and how that ties into Bend's fixed-route service. Show location of future or expanded
park and ride lots in rural locations as identified in discussion with Commute Options and the
Bend Metropolitan Planning Organization (BMPO).
CONCLUSION
Staff welcomes any feedback from the Board on the transportation issues summarized above,
particularly those in the bike/ped portion.
3
Page 1 of 1
Bonnie Baker
From: Kellar, Scot A [scot. a.kellar@intel.com]
Sent: Thursday, October 22, 2009 5:05 PM
To: Board
Subject: Deschutes County TSP
I am writing to ask that you support the inclusion of the Three Sisters Scenic Bikeway as outlined by the Deschutes
County Bicycle and Pedestrian Advisory Committee into the county's TSP. This proposal will improve quality of life for
local residents and I believe boost bicycle based tourism in the area.
Thank you,
Scot A. Kellar, Ph.D.
(541) 362-3882
10/22/2009
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I agreed to start a column in the Newberry Eagle called "ask the Commissioner"
here are some of the questions I have been asked to respond to:
1) Who do you think should pay for the infrastructure for Destination Resorts in
Deschutes County?
Alan; Destination Resorts construct and pay for all of the infrastructure within a
resort, centralized sewer and water; roads and other utilities. They also pay their
share for off site road improvements based on a required traffic study. Lets say
that a resort contributes 25% of a road improvement we need to collect the other
75% of the cost before we can do the road improvement. Resorts pay for their
infrastructure, pay taxes, make jobs and attract people who want to recreate in
Central Oregon. (85 words)
3) Under what circumstances would a 'permit' issue be brought before a
'hearings officer' rather than before the Deschutes County Planning
Commission? Does a 'hearings officer' get involved if the applicant is unhappy
with the decision of the County Staff? If so, what staff decision was the applicant,
McDonald's unhappy about?
Specifically, why did the permitting process for the new McDonald's in LaPine
NOT go before the County's Planning Commission? Does the Planning
Commission get involved only if code needs to be changed, like a text
amendment?
Alan: To keep fees as low as possible, planning applications are only sent to a
hearings officer for a hearing if issues to be decided are unusually complex or if
staff believes the decision will be controversial. Less than 10% of decisions go to
a hearings officer. If administrative (staff) decisions are appealed, they then go to
a hearings officer. The County decided years ago to use hearings officers rather
than the Planning Commission to free up the commission for legislative matters,
such as the sign code amendments which affected the La Pine McDonald's. The
original decision approving the McDonald's was done administratively, and was
not appealed. (100 words)
4) Was the Regional Problem Solving (RPS) chapter of the County's current
Comprehensive Plan ever satisfied/completed? How can you pass the
Comprehensive Plan when/if RPS was not done? Also, South Deschutes County
has been portrayed as having a current health hazard; this is untrue,
inappropriate, and needs to be corrected
If it is necessary to carry this RPS chapter forward into the new Comp Plan, car
it be 'renamed' to reflect a favorable impression of the South Deschutes County
area? (Suggestion: "Regional Growth Solutions" for South Deschutes County).
Alan: I like changing RPS to Regional Growth Solutions. I doubt if the current
plan chapter was satisfied. Circumstances change like rates of growth over time.
Nitrates are a problem for the ground water and the rivers. Studies and the DEQ
have both said that we need to do something. Land with ground water within two
feet of the surface is not where you want to install standard septic systems. We
can debate whether we have a current or potential health hazard but we need to
reduce old contamination sources and stop new ones if we want to be
environmental stewards. This discussion is bigger than the 85 word limit for this
column. I will ask the eagle to post a longer answer to the website. (125 words)
5) The newly 'proposed' Comprehensive Plan for Deschutes County is 'weighing
in' at an over-whelming and intimidating 422 pages, and we only have a 90
day public comment period to digest it. (At the same time, residents of the
LaPine area are also being handed LaPine's first Comp Plan to digest and
comment on.)
In a transparent, good-faith effort to involve more residents in this critical review
process of the ornately detailed "future plan/challenges" facing our County, would
you, as our Commissioner, support a more 'user-friendly', streamlined version,
perhaps in two volumes; where the 30-40 pages of 'essentials'/GOALS and
ACTIONS are in one document and the 350+ pages of
SUPPORTING/HISTORICAL documents and appendages are in another?
Alan: I think you have a good idea with a streamlined version. Staff is listening
to you and they have already produced a supplement to the Comprehensive Plan
Update, that focuses entirely on the Goals, Policies and Actions. If you go to
www.deschutes.org\cdd then click on "comprehensive update plan" link you can
review the new supplement. (56 words)
6) Would you support a 'line-item' veto concerning the County's proposed
Comprehensive Plan, the blueprint for future growth?
As you said at the LaPine Town Hall Meeting on October 7, 2009, "Once it (a
Comp Plan) gets adopted ...you can't go back." I can think of two instances
where a 'line-item veto' would/should be invoked: (1) if there is a
misleading/inaccurate statement, remove it. It should not be just a matter of
rewording a statement to make it 'more correct'; either it is correct/accurate, or it
is not. And (2) if the reader would be misled due to an omission, something that
'wasn't' disclosed' in the Historical /Supporting documentation, remove the
section.
2
Alan: the public process is the right time to have these discussions. One benefit
of the County's 90 day public review period is to hear from the community about
the content of the Comprehensive Plan. If information is misleading, County staff
would appreciate hearing about it, to rectify or clarify the particular issue. I do not
believe that the Comp Plan is a final plan, it should be a living document. The
public through the Planning Commission and the Board of Commissioners can
request changes to the plan. (87 words)
7) At the October 8th County/City combined Planning Commissions Meeting in
LaPine, the audience was told there are no 'hidden agendas' regarding the
County's proposed Comprehensive Plan. Great! then there should also be no
'hidden' or unanswered questions. Asking questions is not criticizing; we have a
right and obligation to critique the County's work ...it's our job to participate and
become expert critics in the art of judging the County's work in a fact-finding
manner. This is not personal... this is our future.
Commissioner Unger: As we give our elected and appointed officials our
support and encouragement and hold the County accountable for their proposed
Comprehensive Plan, would you support a transparent process where the
County staff should have no qualms, what-so-ever, with answering all of our
questions as we go through this Update process?
In contrast, many, many questions posed to the County Staff during the
Community Conversation sessions were never answered: this was not a
transparent process. Too many things were 'bundled' together, by Peter
Gutowsky's and Nick Lelack's own admissions Just because our questions
were NEVER answered, does not negate the validity of the questions
Alan: I believe that we are conducting an open and truthful process. Our staff is
doing a professional job revising the Comp Plan. Staff welcomes public input.
Please let go of some past impressions and realize that we want to listen and
improve our communications. All I can say is that you might be asking a question
that needs a complex answer that does not have an easy yes or no. we are not
trying to avoid the answer but provide enough information to support the
conclusion. I suggest that you reask your questions until you are satisfied with
the answer. Ask other people if necessary. (105 words)
8) Please explain how it is that the County hired 360 to 390 new County
employees during this economic downturn with reduced County revenues and
what positions did they fill?
Alan: the County has reduced the number of employees from 880 to 840 over
the last two fiscal years. We might have to lay off more if revenues do not meet
expectations. We do hire new employees to fill vacant and needed positions that
are budgeted like deputies, probation officers and health nurses. (52 words)
9) How much is the County willing to work with ODOT, regarding the need for a
light at the intersection of First and Hwy 97 in La Pine. There have been
feasibility studies done in the past, and can they be utilized to speed up the
process?
Alan: the County is at every meeting with ODOT and is concerned with all
intersections in LaPine not just First and Hwy 97. A new study using county funds
and services with support from ODOT and the City of LaPine will look for the right
solution. Government is deliberate and that takes time. We need to be patient,
helpful but insistent that we reach a timely decision that increases safety and
promotes business. In the mean time we should do what is necessary to protect
our children's safety. (88 words)
4