2018-176-Minutes for Meeting April 12,2018 Recorded 5/22/2018•
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-65%0
9.00 AM
Recorded in Deschutes County CJ2018-176
Nancy Blankenship, County Clerk
Commissioners' ,journal 05/22/2018 9:44:36 AM
THURSDAY, APRIL 12, 2018
2018-176
BARNES & SAWYER ROOMS
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present mere
Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Keith, Board
Executive Assistant. Several citizens and representatives of the media were in attendance.
CALL TO ORDER: Chair DeBone called the meeting to order at 9:02 a.m.
PUBLIC HEARING: Appeals of Hearings Officer decisions related to the
KCDG/Tanager applications
Anthony Raguine, Senior Planner reviewed the hearing procedures. Commissioner
DeBone explained the time expectations. Regarding the Board's disclosure,
Commissioner Baney explained there were many emails that came through to the
Board and those emails will be entered into the record. The Board did not have any
conflicts to disclosure and hearing no challenge from the audience, Commissioner
DeBone opened the public hearing.
Ken Katzaroff, co -counsel representing the applicant presented on behalf of
Tanager. A copy of the presentation is included with the record. There are two
projects involving Tanager Development for a site development and recreational
PAGE 1 OF 10
facility and a separate KCDG project for surfacing mining. Mr. Katzaroff reviewed
maps of the subject property from 1994 to present time. Mr. Katzaroff explained
the history of the applications and Hearings Officer's decision in 2016. The planned
development includes ten lots to be 2 acres or greater in size. In order to achieve
the planned configuration the development will require lot line adjustments.
Wendy Wente, Wildlife Biologist with Mason, Burse & Girad presented her
testimony of her wildlife habitat plan for the proposed open space. The property is
ponderosa pine and juniper and has some vegetation. Ms. Wente reviewed the key
elements of design planned for wildlife. Ms. Wente spoke on the requirements of
Oregon Department of Fish and Wildlife.
Mr. Katzaroff explained their opinion on the development's harmonious
compatibility and explained their review of potential traffic, visual, and sound
impacts.
Liz Fancher, co -counsel representing Tanager spoke to the major issues in the
Hearings Officer's decision in 2016. Ms. Fancher explained her conclusions.
Mr. Katzaroff states they are asking the Board to approve the surface mining
permit.
He also addressed the plan amendment, stating it was approved but they do not
feel it is necessary, however they ask the Board to approve the plan amendment as
well.
RECESS: A short recess was taken at 10:58 a.m. and the hearing was reconvened at
11:06 a.m.
Carol MacBeth, gave testimony on behalf of appellant Central Oregon LandWatch.
Ms. MacBeth stated the complexity of the record can be traced to code
enforcement. Ms. MacBeth spoke on the deer winter range boundaries and the
allowed uses compatible in those areas. Recreational facilities are among those
activities that are not allowed in the deer winter range. Oregon Department of Fish
and Wildlife set these categories due to their requirements for the species. Ms.
PAGE 2_OF10
MacBeth noted relative to the season of winter deer range verses the summer time
recreation it is physically displacing the species. Central Oregon LandWatch feels
the ponds are acceptable to the area but the recreational facility is not compatible.
Ms. MacBeth recalled a situation in Alfalfa where someone tried to develop a water
ski lake and was told by the County it was unlawful and was required to fill in the
excavated area and Central Oregon LandWatch would request the same response
for this applicant.
Jennifer Bragar representing appellant Thomas Bishop presented in opposition to
the application. Ms. Bragar spoke on the many instances of opposition by
community members for many years. The Bishops had submitted complaints to
the Tumalo Irrigation District regarding water transfer in 2014. Ms. Bragar
presented historical information on the subject property and of the proposed
development. She noted large recreational facilities are prohibited in the winter
deer range. The application focuses on surface mines rather than wildlife habitat
and the conditional use is not compatible. Ms. Bragar also opined KCDG has not
disclosed full and accurate data regarding the surface mining. She spoke on the
impacts to the area. Ms. Bragar commented the answer to the problem is to fully
reclaim the site. Ms. Bragar will present a map to the Board showing the Bishop's
property and road access points. Ms. Bragar stated Tumalo Irrigation District would
need to fill the lake with water but there is no way to send the water back through
the piping. Ms. Bragar stated the neighboring property owners shouldn't have to
suffer from the impacts of this activity. Ms. Bragar requests that the applications
be denied.
Commissioner Baney asked Mr. Raguine to clarify the comments regarding
definitions in surface mining as well as a County Legal interpretation.
Commissioner Henderson would like time to review the actual statutes.
RECESS: At the time of 12:32 p.m. the Board took a recess and reconvened at 1:20
p.m.
Commissioner DeBone noted the time expectations for the testimony. At this time,
Commissioner DeBone opened the hearing for public testimony.
PAGE 3OF10
Paul Lipscomb: full time resident of the Sisters Country area and is not a neighbor
of the area of the subject property. He noted his history as a circuit court judge and
spoke on the rule of law. He asks the Board to not allow this development to
proceed.
Roy Dwyer: spoke on opposition to the developer's proposal. He is a resident near
the subject property and spoke of the beauty of the area. Mr. Dwyer stated the
planned subdivision is acceptable but not the ski lake.
Dr. Archie Bleyer: spoke on his employment history and he and his wife have been
a homeowner here for more than 40 years. He spoke on the open space
requirements. He asked the Board to deny the recreational facility.
Scott Waters: Resident of Bend since 1992. He thanked the Board for hearing the
appeal. His property is bound on two sides of the subject property. Mr. Waters
noted his full support of the applications. When he purchased the property ten
years ago, the realtor mentioned there was a possibility of the development of a ski
lake.
Andy Niedzwiecke: fully supports the project. When he first became aware of the
surface mining he was amazed at the process. For habitat impacts, he would rather
look at the lakes than dry empty pits.
lacqueline Newbold: presented a message on behalf of 79 elk as they do not have
a voice and they ask the Board to protect their habitat. People want to move here
because they love the nature and wildlife. She has lived in the area for 33 years but
doesn't remember the elk always being there other than a few years ago. She is
worried their land is getting fractured.
Harris Kimble: is a member of KCDG development and thanks the Board for the
hearing. One point to make is the top soil proposed for removal and relocation on
site would require less than 18 inches to cover the area and would not create a
sunken meadow. The other point was regarding gravel that was supposedly
exported to another property which Mr. Kimble said was incorrect. Mr. Kimble
stated when developing the ponds he was told there was no need for a permit and
met with Planning from 2004 and 2013. The plan was developed in 2005. The only
time he was told of a permit was if there was a recreational facility there would be a
required permit.
PAGE 4 OF 10
leff Perrault: spoke on the comments from Judge Lipscomb on ignorance of the
law. When he looks at the map he sees two features that shouldn't be there. There
should have been a public process prior to the construction. There should be a
sense of fairness of an honest debate.
Susan Strauss: noted that she and her husband have a light industrial building and
they have always done everything correct in regards to their business. She feels
that professional advice should have been requested for this development. She is
not in support of this project. Her family has lived here since 1979. She
commented that wildlife are being diminished and what upsets her is the proposed
use of ground water for this development.
Scott Peters: commented that he assumes the Board knows the law and speaks on
behalf of the community's rights to develop land and to use water as intended. He
and his wife plan to purchase a parcel in the proposed development.
Veronica Newton Hudson: Talked on behalf of the deer. She spoke on the deer
and elk life on the winter deer range. Bend was built right in the middle of these
wintering grounds and Highway 97 cuts right through. She spoke on the impact of
human life on the wildlife. Dr. Hudson commented on the excavation of land to
create the water ski lake and how the development will affect the deer.
Will VanVector: represents his client ERMK, LLC that has concern the development
will affect their open surface mine adjacent to the subject property. Mr. VanVector
asked the Board to approve the conditional use as it protects existing use and
compatibility.
Gerardo Pandal: just moved here a few months ago with his family. He has been
to the property a few times and would love to buy a lot there.
im Holt: lives near a former surface mine that has been recovered. He spoke on
building his house and the process. Mr. Holt spoke on TID's involvement and the
piping.
Janet Sleath: She and her husband live Y2 mile south of the proposed development
and they feel this would have a significant negative affect in the neighborhood.
They feel the development would have a negative effect on their property value.
One of the reasons they chose the home was for the rural nature of the
neighborhood and it is so peaceful. They are also concerned with the impact on
PAGE 5OF10
wildlife. She stated water is a precious commodity and using water to fill a ski lake
is not a good use.
Beverly Morales: She and her husband own property two properties from the
south lake and immediately across from the north lake. She is concerned because
it is a rural residential area and is beautiful. There will be increased traffic. She
spoke on a statement from a water expert that the water would need to be used by
the lakes and residents and there is no public water as the residents have drilled
wells. She spoke on the increase of noise that is expected with this type of use.
Jamie Hildebrandt: operates Rock Springs Ranch and owns a PUC regulated water
system and the thought of pumping ground water to supply the lakes is ludicrous.
Lance lulander: owns 14 acres adjacent to the property and is supportive of the
project. Mr. Julander stated he moved back to Bend from Houston and lived on a
100 -acre water ski lake.
Carl Cadwell: is a water ski nut and feels the lakes are pristine and quiet and a
great place for families. This has been a difficult process for the family and stated
this project is awesome.
Judy Campuzano: lives at the south part of the south lake and they have been
through the beginning before it was mined. The noise study was done and the
neighbors were invited and not one person went to this. Ms. Campzano spoke on
the wildlife in the area as well as the maintenance and gravel done to the access
road.
Bob Varco: has lived here since 1956 and works at Tumalo Irrigation District. He
spoke on the abandoned surface mines. Mr. Varco commented on the condition of
Harris's residence that was well done. They have the blessing for the development
of the ski lakes. Mr. Varco asked why TO is interested in water storage because
they need to deliver a supply of water. Commissioner Baney asked for clarification
if there is an ability for water circulation. Mr. Varco explained the plan for the
reservoir and the plans for a pumping station. Mr. Varco talked about the Two Bulls
Fire and the generosity of the Cadwell family to use the water to fill the equipment
for firefighting. Mr. Varco clarified water use relative to the water storage
reservoirs.
PAGE 6OF10
Will Hammock: Is a neighboring property owner. Mr. Hammock showed a map of
the area showing the reservoir and has been able to see the process. Mr.
Hammock spoke on the wildlife in the area.
Caroline Bearden: She is not a resident of Bend and lives in the tri -cities and have
known the Cadwell family for quite some time.
Taylor Geraths: is a native Oregonian. He said as a kid there were no fires and the
first he recalls was in 1988 and since the lakes have been there the reservoirs have
fought the fires over the years.
Katie Anderson: commented on the unwillingness to compromise. She was asked
by the Cadwells to assist on a professional development standpoint. Ms. Anderson
explained an Easement Maintenance Agreement relative to planned communities.
Elizabeth Hoefle: has a property that borders the subject property and reduces the
overall quality of life for not only the neighbors but wildlife. Regarding the ground
water, if her water usage is affected it will cause a great impact. She spoke on the
condition and impact of the gravel road. Ms. Hoefle commented the Cadwells have
proceeded without approval and permits for the development.
Charles Wilkinson: spoke on the surface mine and the progression of the
development which makes sense to him. He supports the project.
Betsy Magdall: lives in the neighborhood and is opposed to the development. A
competition ski lake is not consistent with a rural neighborhood. She sees this as a
danger and as a waste of ground water. Ms. Magdall stated you can't claim the use
of water for firefighting when it is a private use ski lake and what happens if there is
a fire during a ski competition.
Patrick Geary: lives in the area and is 610 feet away from the proposed ski lake.
Mr. Geary has been on the property before it was mined. He purchased his
property since 1986 and enjoys the quiet community. The water ski lake is invasive
to their community. There is a concern on impact and deprivation of water. Mr.
Geary reviewed the cost to the community to defend their private property.
Written testimony of Cynthia Johnson was submitted to Anthony Raguine for the
record.
PAGE 7 OF 10
Nunzie Gould: lives in rural Tumalo. She commented it was clear that removing
the lake is in the Board's better short-term and long-term choice. Her testimony
explained comment on home affordability, private use, ground water use,
compatibility, wildlife habitat overlay zone, and CDD enforcement. She asked the
Board to have vision as the public rely on the Board.
David Knauss: thanked the Board for their hard work and noted opposition makes
things better and causes refinement. He knows the Cadwells and highly
recommends them.
Commissioner Baney inquired if there is marketing materials specific to rentals.
Mr. Raguine said there was not.
RECESS: A short recess was taken at 3:39 p.m. and was reconvened at 3:51 p.m.
lennifer Brager: requested the Board leave the record open. Ms. Brager spoke on
the development and the process that should have taken place. In the context of
existing code enforcement violations, Ms. Brager compared this application to a
marijuana production application submitted by the Fagens and disallowed by
Hearings Officer Fancher (co -counsel for applicant) due to existing code violations.
Carol MacBeth: spoke on decibel levels and sound levels can be interpreted
differently by different people. Central Oregon LanclWatch has two tables noting
sound levels.
Ken Katzaroff: responded on the claims they should have acquired the proper
permits. He spoke on the road access. Mr. Katzaroff reviewed the legal history of
the application. His feeling is the deer are more abundant due to the existence of
the lake. Mr. Katzaroff explained the slope and depths of the lakes and stated
fencing is not required as there is no safety risk. He explained there will not be any
impacts to the ground water. He clarified there was a permit for rock crushing to
take boulders from the south pond to be used for gravel for road construction. Mr.
Katzaroff stated even if a violation occurred in 2014 Deschutes County Code is
limited as how long you can prosecute. Mr. Katzaroff stated they don't feel they did
PAGE 8OF10
make a violation but even if they did Deschutes County is not able to prosecute
them.
Commissioner Baney asked for clarification on water storage and right of first
refusal of water. TID has an agreement with them and recorded against their
property. The statement they didn't apply for an operating permit is incorrect.
Commissioner Baney requested a comment back in writing regarding clarification
of the excavation work and permit process. Commissioner Henderson requested
clarification on the road access and maintenance. Liz Fancher responded on the
purpose of on-site road construction for the subject property.
Liz Fancher would like to review the Fagen marijuana production application and
respond to the statements in an earlier testimony. At the time of application for
that specific case, there weren't any code violations. Ms. Fancher also provided
information on definitions of surface mining through state law.
Mr. Katzaroff reviewed the subject property and the plan to turn them into 19
potential home sites. Commissioner Baney inquired on impact and if there would
be rental properties. Mr. Katzaroff stated there is the possibility of homes being
rented. If the Board has restrictions on that, then the applicant might consider. Mr,
Katzaroff stated he can have as many people over that he wants at his property.
Only one boat is allowed on the lake at a time and they don't see that as a problem.
Mr. Katzaroff stated it is a private facility and has never been intended for
commercial use. Commissioner Baney commented on the noise level. Mr.
Katzaroff stated they don't have any information on that level. Commissioner
Henderson inquired on the definition of re -regulation. Mr. Katzaroff noted it allows
Tumalo Irrigation District to store the water there and could pump out of the north
pond. Commissioner Henderson would be interested in legal briefing on the issue
of alleged reasonable reliance on statement by planning staff. Mr. Katzaroff stated
the belief in what staff say but they were told they didn't need a permit.
Commissioner Baney explained that something in writing from staff may have been
beneficial to the development.
Anthony Raguine spoke on the calendar of events for this item. Commissioner
DeBone noted this was the oral portion of the hearing. Mr. Raguine noted one of
the parties could request a longer period. The second seven days is for rebuttal to
additional testimony. The third seven days is just for the applicant. The appellant
requested 14 days for the written record. The applicant would request only seven
days for written record, seven day rebuttal, and a final 14 days for response. The
PAGE 9OF10
appellant and Central Oregon Landwatch agreed with a 14, 14, and 14 calendar.
The applicant prefers 7, 7, and 7.
Mr. Raguine noted new written testimony would be due April 20th at 5:00 p.m., the
next round for rebuttal is due April 27th at 5:00 p.m., and the final argument for the
applicant is May 4th at 5:00 p.m. A Work Session would be the next step.
Deliberations would then be scheduled. The final date for 150 -day clock is June 30th
and is extended additionally by the open record period.
Commissioner Baney commented on the testimony received today and thanked the
audience.
Being no further items to come before the Board, the meeting was adjourned at 5:14- p.m.
DATED this—ADay of 2018 for the Deschutes County Board of
Commissioners.
PAGE 10 OF 10
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
PUBLIC HEARING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
9:00 AM, THURSDAY, APRIL 12, 2018
Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend
Call to Order
PUBLIC HEARING
1. Public Hearing: Appeals of Hearings Officer decisions related to the
KCDG/Tanager applications. - Anthony Raguine, Senior Planner
Adjournment
To watch this meeting on line, go to: www.deschutes.org/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
Deschutes County encourages persons with disabilities to participate in all programs and
activities. To request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschu!gs.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Board of Commissioners Public Hearing Agenda Thursday, April 12, 2018 Page 1 of 1
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Public Hearing of April 12, 2018
DATE: April 6, 2018
FROM: Anthony Raguine, Community Development, 541-617-4739
TITLE OF AGENDA ITEM:
Public Hearing: Appeals of Hearings Officer decisions related to the KCDG/Tanager
applications.
RECOMMENDATION & ACTION REQUESTED:
KCDG applied for conditional use permit and plan amendment approval for surface mining and
to add a portion of the subject property to the Non -Significant Mineral and Aggregate
Inventory, respectively. Tanager applied for conditional use permit and site plan approval for a
recreation -oriented facility (ski lake), along with conditional use permit and tentative plan
approval for a 10 -lot subdivision.
The Hearings Officer denied the conditional use permit for surface mining and the conditional
use permit for the ski lake. The Hearings Officer approved the plan amendment, and the
conditional use permit and tentative plan for the subdivision. A total of three appeals were filed
in response to the Hearings Officer's decisions. On April 12, 2018, the Board of County
Commissioners will conduct a public hearing on all three appeals.
ATTENDANCE: Anthony Raguine, Senior Planner
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TO: Ken Katzaroff
FROM: Patrick Cole
DATE: 4/11/2018
SUBJECT: PURA VIDA P.U.D. TENTATIVE PIAN
Ken,
I'm writing to clarify which properties are being used in the proposed Pura Vida P.U.D. development.
The property consists of 3 legal lots of record. These lots of record are proposed to be subdivided into 10
new lots as a planned development and an open space area. Each created lot will be 2.00 acres or greater in
size, as required under state law.
Patrick Cole
PIS 79157
62930 O. B. Riley Road, Suite 100 ♦ Bend, OR 97703
(541) 389-9351
www.hwa-inc.org
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May 16, 2017
KC Development Group, LLC
63560 Johnson Road
Bend OR. 97703
DS -S -AL Acoustical Engineer, inc.
15399 SW Burgundy Street
Tigard, OR 97224
Attn: Ken Katzaroff, General Counsel & Special Projects
Re: Tanager Development Project
DSA File: 101171
At your request, I reviewed the proposed Tanager development project materials you sent me to
determine if the proposed housing development would have any effect on the results of the noise
study conducted by Daly-Standlee & Associates, Inc. in 2015. The 2015 study concerned the
impacts to existing residences caused by motorized boating noise generated at the South Pond of
the proposed recreation -oriented facility at 63560 Johnson Road northwest of Bend, Oregon.
The study results showed that there would be insignificant impacts on those residences if ski -
boat operations proposed by KC Development Group, LLC were allowed on the water facility.
The materials reviewed to develop the conclusions presented in this letter include the proposed
layout of the Tanager development, the topographical data. for the development site and adjacent
property, the Deschutes County yard and setback requirements that would be applicable to
structures constructed on the development lots, and your notes concerning the fact that
development on the individual lots along the water facility will be required to have at least a 50
foot setback from the edge of the water facility.
To determine the effect that houses in the Tanager development site will have on the conclusior->s
presented in the Daly-Standlee & Associates, Inc. September 28, 2015 noise study report, I
assumed new houses would be oriented on water -side lots with the main roof ridgeline oriented
on a north/south line. An orientation such as that would be expected if the houses are
constructed to highlight the South Pond views. In addition, I assumed the elevation at the base
of the houses would be the ground elevation currently found approximately 50 feet from the top
edge of the rock bed that forms the sides of the pond and I assumed the houses would be two
stories. Finally, I assumed the houses constructed on the lots located along the South Pond
would likely be 50 to 60 feet deep from front to back given the general size of homes in the area.
Given the assumptions described above, new houses constructed on lots located along the South
Pond will act as sound barriers between a ski -boat and existing homes as the boat traverses along;
the waterway. The new homes will not produce a continuous barrier between the pond and the
existing homes but they will be a barrier to the sound traveling to the existing homes when they
break the line -of -sight between the boat and those homes. Given the presence of partial barriers
along the edge of the South Pond, I estimate the noise level increases presented in ['able l of the
September 28, 2015 Daly-Standlee & Associates, Inc. report (on page 31 of the report) could be
reduced by 2 to 3 dB. Given the fact that the original report concluded the noise generated by
101171 KC Development Letter - 170516 Page 1 of 2
Exhibit GG
1 of 2
DSA. . acoustical Engineers, Inc. Tanager Development Project
ski -boat operations on the South pond will have an insignificant impact on the acoustic
environment typically found at existing residences located around the pond, with a reduced level
of sound reaching the residences, the impact will be even less significant than originally
predicted. The sound of ski boat operations is less than any regulated standard, including both
the Deschutes County Noise Ordinance and Oregon Department of Environmental Quality
standards. and will likely often be less than the general ambient sound level in the area.
Finally, you recently asked me if I could address the operating hours that I believe the
conclusions presented in the original report and in this letter would apply. Given the fact that the
noise impact analysis was based on ambient noise measured on a Sunday, the quietest day of the
week, I can state that I would expect the conclusions discussed above would be consistent with
your proposed operating hour restrictions of between 7:00arn and 1 O:OOpm.
If you have any questions about the information presented in the letter, give me a call to discuss
them.
Sincerely,
DSA Acoustical Engineers, Inc.
Kerrie O. Standlee, P.E.
Principal
f , N rFD� €rt
101171 KC Development Letter - 170516 Page 2 of 2
Exhibit GG
2 of 2
f �
Kate l3ro n, Governor
November 9, 2017
Bank of the Cascades
1700 NE 3rd St.
Bend OR 97701
RE; DOGAIMI MLRR ID No. 09-0079
Release of Assignment of Deposit No. 106971
Dear Sirs,
lDepa:ctin—E nt of Geology anel Mine--ral Irxduistries
Mineral Land IZeguIation and Redainalion
229 Proadalbin Street SW
Albany, OR 97321-2246
(541) 967-2039
F -ax; (541) 967-2075
�:�ti�y���,oregong;colon}y.orl;
KC Development Group applied for an operating permit for DOGAMI site # 09-0079, located in
Deschutes County site at tax lot 824 sec. 13 T17S RI lE on October 8, 2014. The permit was intended by
the applicant to cover excavation work previously done as part of the construction of a water ski lake.
The applicant was unable to obtain the land use approval necessary for DOGAMI to issue the permit.
There is currently no active permit application for this site. The site currently meets the reclamation
requirements of the proposed operating and reclamation plan. DOGAMI is not actively undertaking any
enforcement actions related to the site at this time.
The Assignment of Deposit referenced above for $ 500, executed December 10, 2014, with KC
Development Group LLC as principal, may be released effective upon receipt of this letter.
All obligations to the State of Oregon DOGAMI have been fulfilled, and the file has been closed.
Sincerely,
Vaughn Balzer
Lead Reclamnationist
Mineral Land Regulation & Reclamation
c: KC Development Group LLC
63560 Johnson Road
Bend OR 97703
;;oE;CHU iES/'s4-0079 1 09-17F.W/a
.IVIL ; SU ?VLYING PLANN11"lG
FROM: Mark Douglas, P.E.
DATE: 03/26/18
SUBJECT: KC Development Pond Slopes
This memo describes the natural and developed slopes on the KCDG and Cadwell properties. Hickman
Williams is extremely familiar with the property because it has provided surveying (including topographical)
and civil engineering support to KCDG and the Cadwells. As shown on the attached Site Plan, the property
has significant topographical changes. Steep elevation changes persist throughout the property, including
nearly vertical slopes at Tumalo Creek and to the north of the south pond.
Hickman Williams designed the south pond improvement. The design took advantage of the former mining
pit. Questions have been raised regarding the developed slopes at the south pond. The slopes were
specifically designed to allow vegetation to take root and to resist erosion. The same slope grade is also
typically used in Centra) Oregon and is acceptable per J106.1 of the Oregon Structural Specialty Code, and
the International Building Code,
Serving Our Clients Since 1987
62930 0. B. Riley Road, Suite 100 0 Bend, OR 97703
(541) 389-9351
www.fiwa-inc.org
Date: April 11, 2018
From: R. Scott Wallace, R.G., Wallace Group, Inc.
Subject: KC Development Group Site
63560 Johnson Road
Deschutes County, Oregon
Project: 10793(l)
wallaceGROUP
Central. oregon's
geosystenr experts
OREGON
RENr::WS
This memorandum describes on-site soil conditions for a rural residential development
proposed by KC Development Group in Bend, Oregon. The Wallace Group was commissioned
to perform subsurface geotechnical exploration as part of site development design work in
February 2017. Forty (40) test pits were excavated at representative locations across site to
characterize the nature of on-site native soils, aggregate mine reclamation fill, and assess the
suitability of these materials for use with standard residential septic disposal systems.
Subsurface conditions on the proposed residential lots generally consisted of native or existing
fill soil comprised of silty -sand with gravel, cobbles and scattered boulders to the full depth of
exploration (4 to 8 feet below ground surface). Bedrock, groundwater or evidence of historic
groundwater was not encountered in any of the test pit explorations.
We understand that Hickman Williams & Associates (project Civil Engineer) incorporated on-
site soils and elements of a former aggregate surface mine to establish erosion -resistant slopes
and grades for the project. Based upon our geotechnical and geological findings, the granular
native soils, fill materials, and cobble/boulders present at the site do not appear prone to slope
failure or subsidence due to the proposed residential development or recreation -oriented
facility.
TWG18R029 Page 1 April 11, 2018
6291.5 NE 1811' St, Ste 1, Bend, OR 97701 p 1541,382.4707 f 1541.383.8118 wailacegroup-inc.com
C. �
TANAGER
MEMORANDUM
DATE: April 10, 2018
TO: Deschutes County Board of County Commissioners
FROM: J. Kenneth Katzaroff, JD
SUBJECT: OWRD Stipulated Judgment and Sworn Deposition Testimony
On November 23, 2015, the Oregon Water Resources Department ("OWRD") issued an Order on
Reconsideration ("Order") that essentially revoked a limited license that allowed TID to store water in
ponds on KC Development Group LLC's ("KCDG") lands. The Order's issuance was a surprise,
particularly the conclusion that TID had knowingly violated the law. TID filed for judicial review of that
Order.
Since then, extensive discovery, including sworn depositions of OWRD staff, TID staff and Board
members, and KCDG members has taken place, resulting in a negotiated stipulated judgment ("Stipulated
Judgment"), attached as Exhibit A.
The Stipulated Judgment withdraws the finding of knowing violation and also:
• Allows TID to continue irrigation deliveries to KCDG and the Cadwells;
• Allows the ponds to remain at least at their current levels throughout the entire land use process,
including any and all appeals;
• Allows the ponds to remain at least at their current levels throughout any water rights
applications, including any and all appeals, filed currently or within 30 days of a final land use
decision;
• Binds OWRD to expeditiously process any water rights applications filed regarding the ponds
and storage of water.
Throughout the discovery process, local OWRD staff Kyle Gorman and Jeremy Giffin were deposed.
Both staffers opined that the pond system was one of the most efficient in Central Oregon. These
deposition transcripts are public record, but we have submitted select portions of each. See Deposition of
Kyle Gorman, Exhibit B, and Deposition of Jeremy Giffin, Exhibit C.
Page 1 of 1
2/12/2018 11:10 AM
16CV01703
1
2
3
4 IN TIIE CIRCUIT COURT OF THE STATE OF OREGON
5 FOR THE COUNTY OF DESCHUTES
6 TUMALO IRRIGATION DISTRICT, Case No. 16CVO1703
7 Petitioner, STIPULATED GENERAL JUDGMENT
8 V.
9 OREGON WATER RESOURCES ORS 20.140 - State fees deferred at filing
DEPARTMENT,
10
11 Respondent.
12 This matter comes before the court on a Petition for Judicial Review filed by Petitioner
13 Tumalo Irrigation District ("TID"), seeking review of the final order entitled "Order on
14 Reconsideration" that was issued by the Oregon Water Resources Department ("OWRD") on
15 November 23, 2015. This Judgment resolves the petition for judicial review of OWRD's Order
16 on Reconsideration, which is attached and incorporated herein as Exhibit 1. This Judgment also
17 addresses the use of the two lined ponds that are located within the lands served by TID and on
18 property currently owned by KC Development Group LLC. Based on the stipulation below of
19 TID and OWRD collectively the "Parties," and in the interest of avoiding further litigation; now,
20 therefore;
21
22 IT IS HEREBY ADJUDGED:
23 1
24 TID enters into this Judgment solely for the purpose of settlement, and nothing contained
25 herein may be taken as or construed to be an admission or concession of any violation of law,
26 rule, or regulation, or any other matter of fact or law, or of any liability or wrongdoing, all of
Page 1 - STIPULATED GENERAL JUDGMENT
EXHIBIT A
1 which TID expressly denies. TID does not admit any violation of state water laws. Specifically.
2 TID denies any wrongdoing as alleged by OWRD. No part of this Judgment, including its
3 statements and commitments, shall constitute evidence of any liability, fault, or wrongdoing by
4 TID,
5 2•
6 This Judgment shall not be construed or used as a waiver or limitation of any defense
7 otherwise available to TID in any action, or of TID's right to defend itself from, or make any
8 arguments in, any private, individual, regulatory, governmental, or claims or suits relating to the
9 subject matter or the terms of this judgment.
10 3.
11 The Parties expressly understand and agree that this Judgment is a compromise of
12 disputed claims and that the execution of and performance of obligations under this Judgment are
13 not to be construed as an admission of liability, law, or fact by any of the Parties subject to this
14 Judgment.
15 4•
16 This Judgment does not limit OWRD's right to proceed against TID in any form for any
17 future violations not expressly settled herein.
18 5•
19 The Parties agree to defend and comply with the terms of this Judgment.
20 6.
21 OWRD's finding of a "knowing violation" in the final order is withdrawn, including the
22 second sentence in paragraph number five in the Findings of Fact and the Ultimate Findings of
23 Fact on page 3 of the final order.
24
25
26
Page 2 - STIPULATED GENERAL JUDGMENT
7.
2 OWRD's finding that TID lacks authorization to store water in the North and South
3 Ponds is affirmed, including the "Enforcement Authority" paragraph on page one of the order,
4 and the "Conclusions of Law" in paragraph number one on page 3.
5 8.
6 OWRD will issue an order to drain the North and South Ponds to the bulge in system
7 level for irrigation purposes should land use proceedings and all corresponding appeals result in
8 an ultimate denial of all of the Deschutes County land use application numbers 247-17-000639
9 and 247-17-000627. If either or both of the land use applications are approved, then the ponds
10 will continue to be managed in accordance with this Judgment until OWRD issues a final agency
11 order on water right application(s) pending or filed within 30 days of the final land use approval,
12 seeking to store water in the South and North Ponds, and all appeals and remands on such final
13 agency order(s) are resolved. OWRD agrees to timely review and process any water right
14 application submitted for storage of water in the South and North Ponds. If no water right
15 application for storage of water is ultimately approved, then OWRD will issue an order to drain
16 the ponds as soon as reasonably possible to a bulge in system level for irrigation purposes. In the
17 event of an order to drain, TID will ensure the ponds are drained as soon as reasonably possible.
18 9•
19 TID may deliver irrigation and stock water from the TID canal into the South Pond to
20 serve lands identified in Certificates 74146 and 74147 and any applicable transfers that are
21 located around the North and South Ponds. TID shall lower the standpipe between the North and
22 South Ponds so that the water in the South Pond shall not exceed the water level observed as of
23 February 5, 2018. The staff plate gage in the South Pond shall be reset to equal zero for the
24 water levels observed as of February 5, 2018. The South Pond water level shall not exceed zero
25 on the reset staff plate gage at any time. Although the North Pond level will fluctuate, it shall
26
Page 3 - STIPULATED GENERAL JUDGMENT
I not exceed l .0 feet, as measured on the existing staff plate gage located in the North Pond, at the
2 end of each irrigation season.
3 10,
4 During the irrigation season and any time while water is being delivered to the South
5 Pond, TID shall:
6 A. Monitor and continuously record water delivered to the South Pond;
7 B. No less than every seven days, monitor and record, to the nearest one-hundredth
8 of a foot, the water -level gage heights of the South and North Ponds; and
9 C. No less than every seven days, monitor and record diversion out of the South and
10 North Ponds for irrigation for the preceding seven days
11 Such measurements shall include a record of the date and time the measurement was taken.
12 TID shall gather the data and submit a report in an electronic format acceptable to the
13 Watermaster, no less frequently than every fourteen days, that includes the above information.
14 TID shall retain data collected pursuant to this paragraph for a minimum of five years. The
15 Parties recognize and agree that there will be losses in the system and measurement
16 uncertainties, and that the water delivered to the South Pond and removed for irrigation from the
17 South and North Ponds may not be equal,
18 11.
19 Upon reasonable notice, TID shall Secure access to OWRD's staff to survey, test and
20 inspect the ponds, water delivery systems, standpipe, monitoring equipment, staff plate gages
21 and measuring devices. OWRD may place its own measurement devices at its discretion.
22 12,
23 OWRD agrees not to issue a notice of civil penalties for violations noted in the final
24 order; provided however, that TID remains in compliance with this judgment.
25
26
Page 4 - STIPULATED GENERAL .IUDGMENT
1 13,
2 If OWRD issues a right to store water in the ponds that is ultimately upheld following
3 appeal as set forth in paragraph 8, or such water right is ultimately denied, the Parties shall be
4 released from compliance with the terms of paragraph 9, 10, and 11 of this Stipulated Judgment.
5 14.
6 The Parties shall each bear their own fees and costs.
7 IT IS SO STIPULATED;
8
9 Dated: C
;LILABETl1 E. HOWARD #012951
10 Attorney for Petitioner
Tumalo Irrigation District
11
12
Dated: !�
13 C, COTTON # 085986
Attorney for Petitioner
14 Tumalo Irrigation District
15
16 Dated:
MARK G. R MNECKE
17 Attorney for Petitioner
Tumalo Irrigation District
18
19 /)
Dated: `� l
20 NICOLED FEVER # 030929
nior Assistan Attorney General
21 for espondent
Orego Water Re ounces Department
22
igned: 2/12/2018 03:28 PM
23
24
25
Circuit Court Judge Wells B. Ashby
26
Page 5 - STIPULATED GENERAL JUDGMENT
BEFORE THE OREGON WATER RESOURCES DEPARTMENT
In the Matter of the Tumalo Irrigation ) ORDER ON RECONSIDERATION
District. )
APPEAL RIGHTS
This is a final order in other than a contested case. This order is subject to judicial review under
ORS 183.484. Any petition for judicial review must be filed within the 60 -day time period
specified in ORS 183.484(2), Pursuant to ORS 536.075 and OAR 137-004-0080 you may either
petition for judicial review or petition the Director for reconsideration of this order. A petition
for reconsideration may be granted or denied by the Director, and if no action is taken within 60
days following the date, the petition was filed, the petition shall be deemed denied.
DISPOSITION
This order on reconsideration affirms the Oregon Water Resources Department's
Enforcement Order of June 16, 2015 finding that the Tumalo Irrigation District (TID) lacks
authorization to store water in the North and South ponds, The order finds that after April 30,
2015, the TID knew or should have known that it did not have authority to fill the ponds
pursuant to either T -I 1833 or T-11951. Therefore, the Department may not find that the TID did
not knowingly violate state laws regarding a water use permit. This order reverses the
Department's decision to allow a Limited License in Conjunction with Enforcement Order and
cancels the Limited License in Conjunction with Enforcement Order,
AUTHORITY
Enforcement Authority
No person may appropriate water for beneficial use without first obtaining a permit from
the Oregon Water Resources Department (Department). ORS 537.130 et seq.; ORS 540,720.
The Water Resources Director acting through watermasters, regulates distribution of water from
streams, lakes, or other sources in accordance with the priority dates of the various water rights
of record. QRS 540.010 — 270. Unauthorized use of water may be regulated off by the
watermaster who may take control of works in order to execute the water laws of this state. Id.
Distribution of water within an irrigation district shall be under the exclusive control of the
directors of the irrigation district unless the watermaster has been requested by the district to
distribute the water. ORS 540.270. Notwithstanding, the watermaster may control district points
of diversion and irrigation works outside of an irrigation district, that are appropriating public
waters and may issue enforcement orders requiring unauthorized use of water to cease.
PAGE I - ORDER ON RECONSIDERATION (Tumalo Irrigation District)
Exhibit 1
Page 1 of 5
Limited License in Conjunction with Enforcement Order
The Water Resources Director may issue a limited license in conjunction with an
enforcement order to address an illegal water use, including irrigation use or a use specifically
prohibited by a basin program. The director may issue a limited license for such a use upon a
finding that:
(a) The person did not knowingly violate state laws regarding a water use permit;
(b) The immediate termination of the illegal use would cause serious and undue hardship to
the water user that could be ameliorated by providing a period of time in which to achieve
compliance with the law; and
(c) The continued use under a limited license outweighs the public benefits of termination,
including deterrence of illegal uses and protection of the water source. ORS 537.143(4)
FINDINGS OF FACT
1. Two ponds are located within the Tumalo Irrigation District (TID) on property owned by
the KC Development Group (KCDG). The KCDG property is located in Section 13 Township
17 South, Range I 1 East. The ponds are excavated and without dams and are commonly referred
to as the "South Pond" and the "North Pond". The South Pond is filled by diverting water from
Tumalo Creek or the Deschutes River into the South Pond. Water from the South Pond is passed
through an outlet at the north end of the South Pond and is the sole means of filling the North
Pond with water. Up to 14.4 acre feet of water may be lawfully used as a bulge for irrigation in
the North Pond pursuant to water right certificates 74146 and 74147.
2. On June 11, 2014, the TID filed a Temporary Transfer Within District application
pursuant to ORS 540.570 proposing to change the place of use of a portion of Certificate 76684.
The Department assigned the application number T-11833. The TID proposed to temporarily
transfer 108 acre feet of water stored under Certificate 76684 in the Upper Tumalo Reservoir to
change the location of water stored to the North Pond and the South Pond. This application was
denied by the Department in a final order dated April 29, 2015. This order was served on TID
on April 30, 2015.
3. On September 25, 2014, TID filed with the Department a notice of intent pursuant to
ORS 540.580 to permanently transfer a portion of water stored under Certificate 76684 to the
North and South ponds. Subsequently, the TID filled the North Pond and the South Pond with
water that would otherwise have been stored in Upper Tumalo Reservoir.
4. On December 22, 2014, TID filed an application for a District Permanent Water Right
Transfer for a Change in Place of Use. The Department assigned the application number T-
11951. The TID proposed to permanently transfer 124.79 acre feet of water stored under
Certificate 76684 in the Upper Tumalo Reservoir to change the location of water stored to the
North Pond and the South Pond. The application was denied by the Department in a final order
dated April 29, 2015. This order was served on TID on April 30, 2015.
PAGE 2 —ORDER ON RECONSIDERATION (Tumalo Irrigation District)
Exhibit 1
Page 2 of 5
5. The TID believed it was authorized to transfer water from the Upper Tumalo Reservoir to
the North pond and the South Pond when it filled the ponds under ORS 540.580. However, after
April 30, 2015, the TID knew or should have known that it did not have authority to fill the
ponds pursuant to either T-11833 or T-11951.
6. On the morning of June 3, 2015, and after obtaining consent to enter KC Development
Property, Watermaster Jeremy Giffin and Region Manager Kyle Gorman entered property owned
by KCDG and observed water being diverted through TID diversions located on Tumalo Creek
into the South Pond. The source of water diverted was either Tumalo Creek or the Deschutes
River where it intersects the Tumalo Feed Canal. The water in the South Pond was being stored
without any authorization from the Water Resources Department. On June 3, 2015, Gorman and
Giffin observed that the water in the North Pond contained approximately 35 more acre feet than
is authorized as a bulge to irrigate 55 acres of land within the TID. This conclusion was arrived
at by calculating the approximate number of acre feet being stored in the North Pond (50 acre
feet) and subtracting 14.4 acre feet of water allowed as a bulge. The difference between the
estimated amount of water stored in the North Pond minus that allowed as a bulge equaled
approximately 35.6 acre feet.
7. On June 9, 2015 at about 0800, Giffin, after obtaining permission from TID to observe
the South Pond from TID property observed and measured 0.73 cubic feet per second (CFS) of
water flowing into the South Pond from the TID diversion on Tumalo Creek. Giffin did not
observe the North Pond on June 9, 2015.
ULTIMATE FINDINGS OF FACT
I . Between June 3, 2015 and June 9, 2015, TID unlawfully diverted water from Tumalo
Creek to fill the South Pond.
2. After April 30, 2015, the TID knew or should have known that it did not have
authorization to fill the South Pond or the North Pond pursuant to either T-11833 or T-11951 and
therefore had no authority to divert water into the South Pond from the TID diversion on Tumalo
Creek.
CONCLUSIONS OF LAW
1. The diversion of water for storage in the South Pond is unauthorized and storage of water
in the North Pond beyond that amount needed to serve as a bulge for irrigation of 55 acres
pursuant to water right 74146 and 74147 is unauthorized.
2. A limited license in conjunction with enforcement order is not permitted. ORS
537.143(4)(a).
PAGE 3 — ORDER ON RECONSIDERATION (Tumalo Irrigation District)
Exhibit 1
Page 3 of 5
[0 R 1
Water is not lawfully stored in the South Pond. Water is only lawfully stored in the
North Pond as that water is used for stock water purposes or as a bulge during the irrigation
season.
The TID may not divert any water from its diversions on Tumalo Creek or the Deschutes
River to fill and store water in the South Pond or the North Pond, except that the TID may divert
water for stock water purposes. During the irrigation season TID may divert water for use in the
North Pond as a bulge for up to 14.4 acre feet to irrigate 55 acres of land within the TID.
The Limited License in Conjunction with Enforcement Order is canceled and is of no
further force and effect.
DATED this 23rd day of November, 2015.
THOMAS NAUVUftR, Director
Oregon Water Resources Department
PAGE 4 — ORDER ON RECONSIDERATION (Tumalo Irrigation District)
Exhibit 1
Page 4 of 5
CERTIFICATE OF SERVICE
I certify that on November 23, 2015, I served a true and correct copy of the ORDER ON
RECONSIDERATION on the following persons by first class mail postage prepaid:
Martha Pagel
Schwabe Williamson & Wyatt
Equitable Center
530 Center St., NE, Ste. 400
Salem, OR 97301
Carl Hopp, Jr.
Attorney at Law, LLC
168 N.W. Greenwood
Bend, OR 97701
Elizabeth A. Dickson
Hurley Re PC
747 SW Mill View Way
Bend, OR 97702
Janet E. Neuman
Tonkon Torp LLP
1600 Pioneer Tower
888 SW Fifth Ave.
Portland, OR 97204
Lorri Cooper
Oregon Department of Water Resources
Exhibit 1
Page 5 of 5
I CERTIFICATE OF READINESS
2 This proposed STIPULATED GENERAL JUDGMENT is ready for judicial signature
3 because:
4 1. [ X ] Each party affected by this order or judgment has stipulated to the order or
5 judgment, as shown by each opposing party's signature on the document being submitted.
6 2. [ ] Each party affected by this order or judgment has approved the order or judgment,
7 as shown by each party's signature on the document being submitted or by written confirmation
8 of approval sent to me.
9 3. [ ] 1 have served a copy of this order or judgment on each party entitled to service
10 and:
11 a. [ J No objection has been served on me.
12 b. [ ] I received objections that I could not resolve with a party despite
13 reasonable efforts to do so. I have filed a copy of the objections I received and indicated which
14 objections remain unresolved.
15 C. [ ] After conferring about objections, [role and name of objecting party]
16 agreed to independently file any remaining objection.
17 4. [ ] Service is not required pursuant to subsection (3) of this rule, or by statute, rule,
18 or otherwise.
19 5. [ ] This is a proposed judgment that includes an award of punitive damages and
20 notice has been served on the Director of the Crime Victims' Assistance Section as required by
21 subsection (5) of this rule.
22 6. [ ] Other:
23 DATED this 9 day of February, 2018.
25
26
s/J. Nicole DeFever
J. NICOLE DEFEVER #030929
Senior Assistant Attorney General
Trial Attorney
Nicole.DeFever@doj.state.or.us
Attorneys for Respondent
Page 1 - CERTIFICATE OF READINESS
JND/j8b/8761205-v1
Department of Justice
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
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CERTIFICATE OF SERVICE
I certify that on February 9 , 2018, I served the foregoing STIPULATED GENERAL
JUDGMENT upon the parties hereto by the method indicated below, and addressed to the
following:
Martha Pagel
Schwabe Williamson & Wyatt PC
530 Center St NE Ste 400
Salem, OR 97301
Of Attorneys for Petitioner
Elizabeth E. Howard
Schwabe Williamson & Wyatt PC
Pacwest Center
1211 SW 5th Ave Ste 1900
Portland, OR 97204
Of Attorneys for Petitioner
Mark G. Reinecke
Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, OR 97702
Of Attorneys for Petitioner
Page 1 - CERTIFICATE OF SERVICE
7ND/c4m/7122764-v 1
_ HAND DELIVERY
X MAIL DELIVERY
OVERNIGHT MAIL
SERVED BY E -FILING
_ HAND DELIVERY
X MAIL DELIVERY
OVERNIGHT MAIL
SERVED BY E -FILING
_ HAND DELIVERY
X MAIL DELIVERY
_ OVERNIGHT MAIL
SERVED BY E -FILING
s/J. Nicole DeFever
J. NICOLE DEFEVER #030929
Senior Assistant Attorney General
Trial Attorney
Nicole.DeFever@doj.state.or.us
Department of Justice
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Pax: (971) 673-5000
Page 1
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES
TUMALO IRRIGATION DISTRICT, )
Petitioner, )
V. ) Case No. 16CV01703
OREGON WATER RESOURCES )
DEPARTMENT, )
Respondent. )
DEPOSITION OF KYLE GORMAN
Taken on Behalf of the Petitioner
Friday, November 3, 2017
EXHIBIT B
Gorman, Kyle
November 3, 2017
Beovich Walter & Friend
Page 2
1
BE IT REMEMBERED That, pursuant to the
Oregon
2
Rules of Civil Procedure, the deposition of
KYLE
3
GORMAN was taken before Heather Ashton, RPR,
CSR, on
4
Friday, November 3, 2017, commencing at the
hour of
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8:16 a.m., the proceedings being reported at
the
6
Justice Building, 1162 Court Street, NE, Salem,
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Oregon.
8
APPEARANCES
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SCHWABE WILLIAMSON & WYATT PC
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By Ms. Sara C. Cotton, Esq.
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1211 SW 5th Avenue, Suite 1900
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Portland, Oregon 97204
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(503) 796-7464
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scotton@schwabe.com
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Appearing on behalf of the Petitioner
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BRYANT LOVLIEN & JARVIS
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By Mark G. Reinecke, Esq.
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591 SW Mill View Way
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Bend, Oregon 97702
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(541) 382-4331
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reinecke@bljlawyers.com
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Appearing on behalf of the Petitioner
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Beovich Walter & Friend
Gorman, Kyle
November 3, 2017
Page 3
1 APPEARANCES (continued)
2 OREGON DEPARTMENT OF JUSTICE - TRIAL DIVISION
3 By J. Nicole DeFever
4 100 SW Market Street
5 Portland, Oregon 97201-5702
6 (971) 673-1880
7 j nicole.defever@doj.state.or.us
8 Appearing on behalf of the Respondent
9
10 ALSO PRESENT: Ivan Gall
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Gorman, Kyle
November 3, 2017
Beovich Walter & Friend
Page 27
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A
Well, irrigation districts, yes, in general, OWRD
2
does not regulate within the boundaries of the
3
district.
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Q
Okay. Do you have an understanding of how OWRD
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defines "beneficial use"?
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A
I don't know that we have a definition of beneficial
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use.
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Q
Have you seen one written down anywhere?
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A
No, not that I recall.
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Q
Do you have an understanding of what beneficial use
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is?
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A
Absolutely.
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Q
Okay. What is beneficial use?
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A
What is beneficial use? It is when you're applying
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water for a purpose or a need that produces a
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benefit to a person.
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Q
Is storage a beneficial use?
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A
I believe the act of storing water is a -- it's a
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legal right to use water.
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Q
So is it a beneficial use?
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A
In my mind it is, yes.
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Q
Is it common for irrigation water to be delivered to
23
a pond before being used for irrigation?
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A
Yes.
25
Q
Okay. Do you know how efficient the TID's delivery
Beovich Walter & Friend
Gorman, Kyle
November 3, 2017
Beovich Walter & Friend
Page 28
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system is?
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A
In general I do.
3
Q
Okay. How efficient is it?
4
A
In the comprehensive look at irrigation district
5
delivery systems in Central Oregon in comparison to
6
other districts, they are as good, if not better,
7
than other districts.
8
Q
Okay. Do you know how efficient the private
9
laterals in the TID are?
10
A
No.
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Q
Okay. Do you know how the ponds compare in
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efficiency?
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A
The KCDG ponds --
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Q
Yes.
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A
-- in efficiency? I know they're lined, so they
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don't seep.
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Q
Okay. Is evaporation considered waste?
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MS. DeFEVER: In your opinion.
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THE WITNESS: In my opinion, evaporation is --
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it just happens. It's not characterized as waste in
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water rights.
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Q
BY MS. COTTON: And do you know whether OWRD has a
23
stated opinion on whether evaporation is waste?
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A
No, I do not.
25
Q
I think we covered this, but I want to make sure.
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Gorman, Kyle
November 3, 2017
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- (X"- II&07_r2
Heather Ashton
RPR Certificate No. 801810
Expires 09/30/19
Oregon CSR No. 92-0246
Washington CRR No. 2929
Expires 3/31/2020
Beovich Walter & Friend
Page 71
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C E R T I F I C A T E
2
I, Heather Ashton, an Oregon Shorthand Reporter
3
and a Washington Certified Court Reporter, hereby
4
certify that said witness personally appeared before
5
me at the time and place set forth in the caption
6
hereof; that the witness was duly sworn on oath,
7
that at said time and place I reported in stenotype
8
all testimony adduced and other oral proceedings had
9
in the foregoing matter; that thereafter my notes
10
were transcribed through computer-aided
11
transcription, under my direction; and that the
12
foregoing pages constitute a full, true and accurate
13
record of all such testimony adduced and oral
14
proceedings had, and of the whole thereof.
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Witness my hand at Portland, Oregon, this 9th
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day of November 2017.
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- (X"- II&07_r2
Heather Ashton
RPR Certificate No. 801810
Expires 09/30/19
Oregon CSR No. 92-0246
Washington CRR No. 2929
Expires 3/31/2020
Beovich Walter & Friend
Gorman, Kyle
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES
TUMALO IRRIGATION DISTRICT, )
Petitioner,
AM
OREGON WATER RESOURCES
DEPARTMENT,
Respondent.
Case No. 16CV01703
DEPOSITION OF KYLE GORMAN
Taken on Behalf of the Petitioner
Friday, November 3, 2017
Beovich Walter & Friend
November 3, 2017
Page 1
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF DESCHUTES
TUMALO IRRIGATION
DISTRICT,
Plaintiff,
vs.
OREGON WATER RESOURCES
DEPARTMENT,
Defendant.
----------------------
Case No. 16CV01703
11
DEPOSITION OF JEREMY GIFFIN commencing at
9:50 a.m. on Tuesday, October 24, 2017, at 591 S.W. Mill
view Way, Bend, Oregon 97702, before COURTNEY M. MOON,
Notary Public, Commission No. 954212.
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EXHIBIT C
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For Plaintiff:
For Defendant:
Also present:
IVAN GALL
KEN RIECK
APPEARANCES OF COUNSEL
SARA C. COTTON, ESQ.
ELIZABETH E. HOWARD, ESQ.
Schwabe Williamson & Wyatt PC
1211 S.W. 5th Avenue, Suite 1900
Portland, Oregon 97204
and
MARK G. REINECKE, ESQ.
Bryant Lovl-ien & Jarvis PC
591 S.W. Mill view Way
Bend, Oregon 97702
J. NICOLE DeFEVER, ESQ.
Oregon Department of Justice
Trial Division
100 S.W. Market Street
Portland, Oregon 97201
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gravity -fed to the North Pond and they pumped out of the
North Pond.
Q. were you aware that KCDG was withdrawing water
delivered to the South Pond from the North Pond for
irrigation?
A. Yes.
Q. okay. Did you consider that proper?
A. Yes.
MS. DeFEVER: objection. when? Lack of foundation
as to time.
MS. COTTON: He's already answered the question,
but I think that we're talking about following the
submission of the temporary application. I was asking
if he was aware if they were -- if TID was delivering
irrigation water and whether he thought it was proper.
THE WITNESS: Yes.
BY MS. COTTON:
Q. okay. we've already talked about this a
little bit, but to what extent does OWRD manage water
deliveries within an irrigation district?
A. we still regulate against waste, but the
lion's share of the regulation we do within the district
is illegal use of putting water either on the wrong
location or in a location -- either an illegal use,
there's no water right there, or diverting too much
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water at a single delivery for the rate given in the
water right.
Q. And is that consistent with TID specifically
or Tumalo?
A. All districts are basically the same with
that.
Q. is it common for irrigation water to be
delivered to a pond before being used for irrigation?
A. Yes.
Q. okay. How efficient is the Tumalo Irrigation
District's delivery system?
A. It's -- I haven't run numbers on it. I guess
you're just asking for my opinion.
Q. Yeah.
A. I would say there -- they probably fall in the
middle of the group of the central Oregon irrigation
systems. I think since their piping project, they're
much more efficient. Yeah, I'd say they're in the
middle of the pack.
Q. And you had mentioned that you regulate
against waste. Can you define "waste" for me?
A. when the diversion of water is above what the
crop requirements are.
Q. is evaporation considered waste?
A. I don't consider it waste.
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Q. Does OWRD have a stated position on whether or
not evaporation is waste?
A. Not that I'm aware of.
Q. Do you have an opinion on how efficient the
private laterals in the TID -- in TID are?
A. From what I've seen, they fall, again,
probably in the middle of the road. They're probably
more efficient than COI, but less efficient than North
unit. I'd say they're right in the middle of the road.
Q. what about the ponds? How do they compare for
efficiency, if you know?
A. I think they're highly efficient due to the
lining.
Q. I want to move forward in time. we've been
discussing sort of a time period in 2014 in which TID
had petitioned for both a permanent and a temporary
transfer. Right? I want to move forward. is it your
understanding that OWRD eventually denied both
applications?
A. I'm not sure the exact process. I -- they
were either unwound or denied.
Q. Did you anticipate -- let me give you a time
frame. In 2014 when you were working with KCDG and TID
on options that they might have, did you anticipate at
that time that the transfer applications would be
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approved?
A. I did.
Q. And why?
A. After vetting internally, we didn't see a
cause for injury, enlargement concerns. It would have
been hard for an outside protest to prove -- I felt
would have been hard for an outside entity to prove
injury to their water rights due to the transaction.
Yeah, I had no reason to believe that they wouldn't go
through.
Q. Do you recall when -- or I should say did you
at some point in time come to believe that they were not
going to be approved?
A. No.
MS. COTTON: You say no. Let's look at an exhibit.
Take a quick break.
(Brief recess.)
MS. COTTON: Can you read back the last question
and answer?
(Requested portion of record read.)
BY MS. COTTON:
Q. Did you have knowledge of the Department's
eventual decision on the applications in April of 2015?
A. I was in most of what I believe were the
e-mail chains of what was going on. I was starting to
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remove myself from the situation and hand it over to the
enforcement department, so I was in the loop; however, I
was basically being told what to do, go see if water is
going into the pond, I would check. I would leave
everything, the decision-making process, up to the
enforcement department.
Q. Okay. So I guess the question previously was
that whether or not at some point you begin to
understand that these applications were not going to be
approved by the Department. I believe you said no.
A. Yes.
Q. It sounds like you were in e-mail traffic that
maybe gave you an indication that they weren't going to
be approved; is that fair?
A. well, at the point of the transfers being
turned in, I -- all along up'until the enforcement
department started issuing denials on things or
whatever, I really was removing myself from the process
at that point. I had -- I mean, I'm still the
regulatory arm on the ground, but most of the actions
that were dealing with this were being handled in Salem
at that point.
Q. okay. And do you know -- recall who was
handling it?
A. I think it was a combination of Doug woodcock
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with the State attorneys at that point. I think my
manager, Kyle Gorman, would have been in those
discussions and Kyle was relaying information on to me
as needed for field visits or such.
(whereupon Deposition Exhibit 45
marked for identification.)
BY MS. COTTON:
Q. You've been handed what's been marked as
Exhibit 45 and this is entitled "Final order Denying a
Change to water Right Certificate 76684." Do you
recognize this?
A. No.
Q. Do you ever recall receiving this?
A. I don't recall receiving it. My office
receives all the correspondence, so I'm sure in one form
or another, it made its way to our office, but I do not
recall seeing this document before.
Q. It says, "In the Matter of Transfer
Application T-11951." Is that the permanent transfer
application that we looked at in Exhibit 8, I believe?
A. I believe so because the temporary was a
different number, but we don't seem to stamp the
transfer numbers on the applications, only the
subsequent paperwork so --
Q. Right, right. I can represent to you that
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that number corresponds with the permanent transfer
application.
And do you know when this final order denying
a change to water right certificate came down?
A. I do not.
Q. Do you recall being made aware that this
determination denying the transfer application was made?
A. Yes. It was brought to my attention, I
believe, by Kyle Gorman.
Q. Do you recall when it was brought to your
attention?
A. I do not.
Q. Do you recall how it was brought to your
attention?
A. I do not.
Q. okay. were you surprised that the transfer
application was denied?
A. I was.
Q. I'd like you to turn to page 3 of Exhibit 45.
Do you see where it says, "Transfer Review Criteria"?
A. um -hum, yes.
Q. And I should say just as a foundational
question, are you familiar with orders of this kind?
A. I am.
Q. Okay. Are you familiar with transfer review
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criteria?
A. It's not something I commonly see in transfer
orders.
Q. what do you commonly see in transfer orders?
A. well, I read through transfer orders on a
daily basis and I see the originating right, the
proposed changes and then conditions and findings of
fact.
Q. So this transfer review criteria is unique to
you?
A. it looks a little unique.
Q. okay. Do you see No. 7 there under "Transfer
Review Criteria" where it says, "Certificate 76684 does
not meet the definition of a water use subject to
transfer as defined in 540.505(4)"?
A. um -hum, yes.
Q. And then, "Storage water for multiple purposes
is not, in and of itself, a beneficial use absent
specific legislation declaring it is beneficial." I
understand you don't recall seeing this order, but does
that language, is that your understanding of the
Department's view on beneficial use?
A. That is my understanding of -- yes.
Q. And would that be the new interpretation of
beneficial use?
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A. Yes.
Q. okay. Do you understand what the basis of the
denial of the permanent and temporary application was?
A. I do after reading this.
Q. what's your understanding of the basis of
those denials?
A. well, it appears that the Department denied it
on not being a water right subject to transfer. It did
not have the appropriate land use form. Apparently, the
person who did the order felt as if the place of use
that the water right was being removed from was not
going to be severed. And No. 10, I just don't
understand.
MS. DeFEVER: I'm just -- I'll just note for the
record that this doesn't appear to be the signed final
order.
MS. COTTON: This appears to be a draft, so I'm
going to get the final order when we go over that, but
for purposes of moving things along, I'm going to move
along and we'll come back to it.
BY MS. COTTON:
Q. So for our purposes, you were aware at some
point that there was a denial of the permanent and
temporary transfer applications. And following that,
did you give any direction to TID regarding the water
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that was currently in the ponds when the transfers were
denied?
A. I'm a little unsure of the time frame, but I
know that I was sent out to the site to meet with Harris
Kimble on a couple occasions to make sure that the ponds
did not store additional water.
Q. And when you say, "Sent out to the site," who
sent you out to the site?
A. it was Doug woodcock.
Q. Did you receive that direction directly from
him?
A. Yes and no. Yes, I did on occasion; however,
other occasions, Kyle Gorman, my manager, sent me out on
request of Doug.
Q. How many visits do you think you made
following the denial of the transfers?
A. I would say, roughly, three to seven.
Q. I said following the denial of the transfers.
I want to limit that a little bit more. was there
eventually an LLEO issued with respect to the ponds?
A. Yes.
Q. okay. And that LLEO was issued June 16th,
2015, so I want to know how many field visits in between
the denial on April 30th, 2015, and the issuance of the
LLEO on tune 16th, 2015. Do you think you made three to
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seven during that time frame or was that inclusive of
following the LLEO?
A. I wouldn't know between those time frames. I
don't know.
Q. okay. would you have kept a log of your site
visits to the KCDG property?
A. Generally, yes. I've been known to miss some
regulations in my log. I do a number of regulations
throughout the season, but generally, those would show
up in my online diary.
Q. And I asked whether or not you gave any
direction to TID regarding the water in the ponds and I
think we got a little turned. Did you ever give them
any direction on evacuating the ponds?
A. we had talked about the physical capabilities
of evacuating the ponds. I don't believe -- I do not
recall ever giving an order to evacuate the ponds. we
talked about the potential of evacuating the ponds and
we talked about not storing additional water in the
ponds from where we were already at. My understanding
at the time was we did have a temporary transfer that
was legal when it was put into place, water was put into
those ponds, and thereafter, water was passed over the
top of that water as their normal, legal diversion rate.
Q. For irrigation?
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161
C E R T I F I C A T E
STATE OF OREGON
COUNTY OF DESCHUTES
certify:
SS.
I, COURTNEY M. MOON, Notary Public, do hereby
That on October 24, 2017, at 9:50 a.m.,
appeared before me JEREMY GIFFIN, the witness whose
deposition is contained herein; that prior to being
examined, he was by me duly sworn;
That the deposition was taken down by me in
machine shorthand and was thereafter reduced to writing
through computer-aided transcription; that the foregoing
represents, to the best of my ability, a true and
correct transcript of the proceedings had in the
foregoing matter.
I further certify that I am not an attorney
for any of the parties hereto, nor in any way concerned
with the cause.
DATED this 1st day of November, 2017, in Bend,
Oregon.
COURTNEY M. MOON,
Notary Public -Oregon
Commission No. 954212
Expires September 8, 2020
CASCADE COURT REPORTERS, INC.
(541)385-5664
LIZ FANCHEIR, ArrO2NEY
Liz Fancher
Sue Stinson, Paralegal
April 12, 2018
BOARD OF COMMISSIONERS
DESCHUTES COUNTY
1300 NW WALL STREET
BEND, OR 97703
Re: KCDG, LLC/Tanager Appeals, Files 247 -17 -000627 -CU, 629 -PA, 636 -CU, 640 -
SP and 641 -LM
I am writing to present KCDG, LCC's view of the preemption argument relied on by the
hearings officer in the KCDG and Tanager decisions to deny approval of the recreation
oriented facility and TID's proposed use of the North and South Ponds as storage
reservoirs.
The hearing officer said that the County cannot apply the definition of "surface mining" in
its acknowledged land use regulations to decide this case. Instead, she found that the
County must use the definition of surface mining that applies to DOGAMI's operating
permit and surface mining program. This interpretation is legally incorrect and
problematic for governmental entities and property owners in Deschutes County.
The County's definition of surface mining exempts mining required as "on-site
construction" to establish the uses allowed by the County's zoning districts. This allows
an approved development project to proceed without obtaining a separate County approval
to do the earthwork necessary to construct a County approved or allowed project. The
hearings officer wrote this exemption out of the County's code and determined that uses
that involve surface mining are now prohibited. The only exception is mining in
conjunction with an irrigation district.
No law says that the County cannot apply the definitions in its acknowledged land use
rules to decide a land use application. In fact, the law requires that land use laws — not
definitions applicable to DOGAMI — be applied to decide the KCDG and Tanager
application.
Opponents have argued that a property owner should be required to rezone their property
Surface Mining if a proposed use involves mining. This approach, however, is doomed to
failure. The SM zone prohibits almost any use other than surface mining. If KCDG were
to rezone its property SM and seek approval of mining associated with its pond, the
County would deny its application because recreation oriented facilities and farm ponds
are not allowed in the SM zone.
644 NW BROADWAY STREET BEND, OREGON • 97703
PHONE: 541-385-3067 FAX: 541-385-3076
-2- April 12, 2018
The land uses that might be impacted by this ruling are numerous and are listed on
Exhibit A. These include the excavation of new ponds and lakes to hold treated effluent
such as the ponds that serve Sunriver, Sisters, Bend and Redmond. It would also prohibit
a new County landfill because new landfills are not allowed in the SM zone and could not
be built in any other zoning district because it involves surface mining unless the on-site
construction exception applies.
The following legal analysis explains why the hearings officer's decision is not correct. In
general, the Hearings Officer failed to understand that State law preempts a County's
regulation of surface mine reclamation and issuance of operating permits. It does not
preempt the County's land use regulations of surface mining because they do not seek to
issue operating permits or to approve reclamation plans.
Hearings Officer: There is no authority in the Code that allows for private surface
mining in the RR -10 zone.
Response: Private surface mining is allowed in the RR -10 zone when it is required for
the on-site construction of a use permitted outright or conditionally because the County's
definition of "surface mining" excludes mining for on-site construction from the definition
of "surface mining." The Board of Commissioners determined in its decision in File Nos.
247 -14 -000238 -PS/ -0000274-A that the construction of the south pond for water skiing
was allowed as a conditional use in the RR -10 zone; not that the use was prohibited
because it required surface mining prohibited by the County code.
Hearings Officer: DCC 18.040.030 defines "surface mining" as:
B. Does not include:
2. Excavation and crushing of sand, gravel, clay, rock or other similar materials
conducted by a landowner, contractor or tenant on the landowner's property for
the primary purpose of * * * "other on-site construction... " * * *
The County exemption for surface mining Linder its definition, set forth above, is
inapplicable for three independent reasons: (1) the Board of County Commissioners has
already determined in land use file number 247 -14 -000238 -PS that the creation of the
reservoirs should be characterized as surface mining in conjunction with an irrigation
district requiring a conditional use permit;
Response: This finding is inconsistent with the Hearings Officer's decision that mining to
create the ponds was not surface mining in conjunction with an irrigation district. Only if
the mining was conducted in conjunction with an irrigation district is it "surface mining."
Otherwise, the Board's decision in File 247 -14 -000238 -PS makes it clear that the mining
to create the ponds was "other on-site construction" that is not "surface mining."
-3— April 12, 2018
Hearings Officer: (2) the excavation and rock crushing performed by the applicant was
not for the primary purpose of construction, reconstruction or maintenance of access
roads, regardless of the fact that some material was used on an access road;
Response: KCDG agrees. The primary purpose of the excavation was to create two
ponds for recreational purposes. The secondary purposes of the excavation were to
maintain access roads, create ponds for the storage of TID irrigation water and to create
ponds for aquaculture.
Hearings Officer: the county's definition of surface mining is preempted by state law
tender ORS 517.780(1).1 * * * [T]he hearings officer cannot rely on the county's definition
of surface mining which impermissibly conflicts with the states definition in this regard
[because it exempts on-site construction]. State law is controlling.
Response: According to ORS 517.780(1), State law controls the issuance of operating
permits and mine reclamation.2 It does not control or preempt the content of the County's
zoning ordinance on other issues. This means that Deschutes County may not issue
operating permits and may not regulate reclamation. It does not mean that Deschutes
County must use DOGAMI's definition of "surface mining" rather than the definition in
its acknowledged land use regulations.
1 517.780 Effect on county zoning laws or ordinances; rules; certain operations exempt. (1)(a)
The provisions of ORS 517.702 to 517.989 and the rules and regulations adopted thereunder do not
supersede any county zoning laws or ordinances in effect on July 1, 1972. However, if the county
zoning laws or ordinances are repealed on or after July 1, 1972, the provisions of ORS 517.702 to
517.989 and the rules and regulations adopted thereunder are controlling. The governing board of the
State Department of Geology and Mineral Industries may adopt rules and regulations with respect to
matters covered by county zoning laws and ordinances in effect on July 1, 1972.
(b) If the county zoning laws or ordinances specified in paragraph (a) of this subsection are
repealed by a county:
(A) The department may allow a surface mining operation that previously operated under a valid
county operating permit and reclamation plan to continue to operate for a period not to exceed one
year if the landowner or operator applies for an operating permit under ORS 517.790 within 60 days
after the date the county's repeal of the zoning laws or ordinances becomes effective, pays all
applicable fees to the department and submits a bond or security to the department as required by
ORS 517.810. Pending issuance of an operating permit and approval of a reclamation plan by the
department, the county permit is deemed to remain in effect and is enforceable by the department.
(B) The department, in issuing a permit and approving a reclamation plan for a surface mining
operation that previously operated under a valid county operating permit as described in paragraph (a)
of this subsection, may incorporate any provisions from the county operating permit into the permit
issued by the department and the reclamation plan approved by the department if the department
determines that the provisions provide adequate protection of the public health, safety and welfare
and the environment.
(C) The department may issue a certificate of exemption from reclamation requirements as
described in ORS 517.770 (1)(b).
2 See, Exhibit B, Minutes of Joint Ways and Means Committee of the Oregon Legislature, June 3,
1971 re House Bill 3013 that included the law that became ORS 517.780(1)(IIB 3013 requires
operating permits and reclamation plans to be approved by :DOGAMI).
-4- April 12, 2018
Deschutes County is granted full authority by the State's land use laws to regulate all other
aspects of surface mining. This is clear from a long line of cases that acknowledge that
local governments have the authority to regulate where mining will occur and to require
site plan review of surface mining operations. See, Mark Latham Excavation, Inc. v.
Deschutes County, 250 Or App 543, 281 P3d 644 (2012); Eugene Sand & Gravel a Lane
County, 189 Or App 21, 74 P3d 1085 (2003). Likewise, the County may allow mining
needed to establish the uses allowed by its zoning ordinance without subjecting the uses to
a separate review as "surface mining." Deschutes County has done so by exempting on
site construction from the definition of surface mining. It could do the same thing by
specifically listing "surface mining related to permitted and conditional uses" as an
allowed use in each zoning district. As a result, it is clear that this is a form over
substance argument of no real merit.
Hearings Officer: Simply, a private property owner cannot undertake surface mining
activities in the RR -10 zone.
Response: This conclusion, if accepted by the Board, will mean that any use in any
zoning district that involves private surface mining be prohibited because private surface
mining is only listed as a permissible use in the SM zoning district.
Opponents argue that a property must be rezoned SM if the construction of a use allowed
by the zone involve enough earthwork to constitute surface mining in order to permit
earthwork. This would, however, be a pointless exercise because the SM zone prohibits
almost all uses allowed in other zoning districts. If KCDG's property is rezoned Surface
Mining (SM), opponents will surely argue that a recreation oriented facility is prohibited
by the SM zone and cannot be approved.
This hearings officer's interpretation will likely have a major, negative impact on many
property owners and will prevent property owners from proceeding with uses the County
intends to allow. A list of uses that will be prohibited if they may involve enough
earthwork to constitute "surface mining" is included as Exhibit B of this document.
Additional Consideration: ORS 517.780(1) preempts any law that conflicts with
DOGAMI's surface mining rules. If this law preempts the definition used by Deschutes
County to regulate surface mining, it logically follows that ORS 517.780(1) also preempts
all of the County's land use laws regulating surface mining. If so, surface mining would
be allowed in any zone if allowed by DOGAMI under the State law.
Thank you for your consideration of this issue.
Sincerel ,
Liz Fan
Attorney for KCDG, LLC
EXHIBIT A
Zone
Uses Prohibited if Involve "Surface Mining" As Part of On -Site
Construction
MUA
Operation, maintenance and piping of irrigation systems
Public Use
Dude Ranch
Kennel/vet clinic
Private parks, playgrounds, campgrounds, motorcycle track and other
recreational uses
Personal use airstrip
Golf courses
Processing forest products
Destination resorts
Landfills with DEQ OK
Hydroelectric facility
Churches
Schools
Cemetery
Guest lodge
OS&C
Private parks
Public parks
Utility facilities
Water supply and treatment facility
Campground
RR -10
Utility facilities (energy, water, sewage disposal)
Operation, maintenance and piping of existing irrigation systems
Public park, playground, rec facility
Dude ranch
Personal use landing strip
Recreation -oriented facility requiring large acreage
Landfill
Cemetery
Hydroelectric facility
Golf course
Church
Public uses
Schools
Rural
Road project
Service
Operation, maintenance and piping of irrigation systems
Centers
Park or playground
Church
School
Cemetery
Medical/veterinary clinic
Community center
Manufactured home park
RV or trailer park
Page 1 — Chart of Uses that May Involve "Surface Mining"
EXHIBIT A
Terrebonne
Rural
Community
Manufactured home park
Multi -family dwelling complex
Retirement center or nursing home
Church
Childcare center
Schools
Park
Public buildings
Utility facilities
Water supply or treatment facility
Road and street projects
Operation, maintenance and piping of existing irrigation systems
Motel (to 35 units with community sewer)
RV park
Large scale uses
Tumalo
Multi -family dwelling complex
Rural
Retirement center or nursing home
Community
Church
Childcare center
Schools
Park
Public buildings
Utility facilities
Water supply or treatment facility
Road and street projects
Operation, maintenance and piping of existing irrigation systems
Motel (to 35 units with community sewer)
RV park
Large scale uses
Manufacturing/assembly of electronic and precision instruments
Manufacturing of medicines
Manufacturing research project
Equipment storage for and expansion/replacement of industrial uses
existing in 1994
Primary processing, packaging, treatment, storage and distribution of
agricultural products, horticultural products, wood products and sand,
gravel, clay and minerals.
Freight deport
Contractor's/building materials business
Mini -storage facility
Manufacturing, storage, sales, rental, repair and servicing for farm and
forest uses, road maintenance, mineral extraction and other rural activities.
Concrete or ready mix plants
Rural
Utility facilities
Commercial
Recreational vehicle park
Zone
School
Page 2 — Chart of Uses that May Involve "Surface Mining"
EXHIBIT A
Page 3 — Chart of Uses that May Involve "Surface Mining"
Church
Mini -storage
Park/playground
Airport
Road construction
Development
Operation, maintenance and piping of existing irrigation systems
Zone
Utility facilities
Runway, taxiway, service road, fuel storage
Hangars, tie -down areas & parking facilities
Flood Plain
Street and road projects
Excavation, grading and fill for maintenance and repair of road
Operation, maintenance and piping of existing irrigation systems
Bridges
Utility structures
Hydroelectric facilities
Golf courses, driving ranges, tennis courts, picnic grounds
EFU
Road construction and transportation system improvements
Rest areas/weigh stations
Creation, restoration or enhancement of wetlands.
Piping of existing irrigation systems.
Fire service facilities
Churches and cemeteries
Utility facilities (sewer, water, electric, etc.)
Winery
Facility for processing farm crops or forest products
Public park and playground
Community center
Personal use airport
Living history museum
Extraction and bottling of water
County fairgrounds
Solar power generation facilities
Dog kennel
Landfill approved by DEQ
Golf course
Private parks, playgrounds and campgrounds
Public and private schools
Destination Resorts
Guest ranch
FI/F2
Uses to conserve soil, air and water quality/fish & wildlife resources
Road and highway projects
Hunting and fishing lodges
Log scaling and weigh stations
Disposal site for solid waste with DEQ permit
Private parks and campgrounds
Fire stations
Utility facilities, including sewer and power
Page 3 — Chart of Uses that May Involve "Surface Mining"
Water intake facilities, treatment facilities, pumping stations and
distribution lines
Reservoirs and water impoundments
Cemeteries
Utility transmission lines (esp. if underground)
Expansion of airports
Public parks
Facility for processing of forest products
Firearms training facility
Page 4 — Chart of Uses that May Involve "Surface Mining"
�7, ck ti 1, T71, 1
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t ljouse Bill 3013 1)�,. amended
ved tli�
11eesentati-vC NIcGj1vra , rijo'i
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"ft(,r lin 7, Page tt of the I)I-inted enurossu
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mi 11 i -n -r be reducc(l to n lalillrr�lt- Up-,�n �,ib;indonmen'
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EXHIBIT B
PiieY
?83
. ime 3, 1971
ita res^ntat:ivc P1c_t'avza't� elution to amend €lrrie�d Un=tniznu- 1 :_
E' _. _ _ -- -
y, t71 f c It at i.yc. RIC It
-rz1 moved tl�cit House Bill 30 he rE po�-tod
ottt. to , lle� yen<ite taa til elle zceoirlmend__ _ _ 1°�?. tFlat it "i3oass 1sIn�nded.'�
_ _�
ifol.iol carried tln�Inirlc7i; IV on roll
�,ott-illi t�Gc t. bi115 con:�ideLc.ci by Subconuni.ttee mild re7c� before Tu11. Ccs-,- ,ttte0
1i�� 15 Li3I 10:38--RLe l atin<1v to indcrgartens ; Ivl neling CiRU 327 .006, 3'27 .OI 0,
:3_7,(} 5 Incl 336.1.05.
iif�bout> reporte'.
.l, 1:'11;31. :)ubcoinvait tee No. 4i'E_'C.oil1"iiP-nCi :IpproL'<i1
7* this bill relit to kindf r,_ in ti -1� • It_ does not t:lake kindergartens
mandrator; hut. prc)vWes that, ' n sc.l t5�t �3a -LI bti initiation1eschoolidistric.t
School Bcar<.l, pt=t into ope.ratlol " t ndf:,T lrtcu pto LaII.
t I t .)t tile. t S l o Schoen.
4L11 hC CIILLL1eL3 re C1ve II1C111E.;' 1 tilt pt'<i 3,ti i«ndf i ° G'rtcn pUpz-ls
Support Fund on tyle basis of =a ..5 Atkl pe studs IIt lais L,,il1 de end on
tinly go to school half da"'s . Tile financial impact: €� p
t.ile rnunber of districts r? hiCli.I1operiatin of e 1 1'durin� 1970 -and 71 ,ntilc7eBosicr of sSchools
invcl lve d . �Il i_hc.
8upptal-t Fund ;;OUle? h�tve boen reduce d by rlpprokint�te ly � 1 .3'€ p�.!r student .
Tliere are 37 kindergartens in tyle tato -3t talc preycnt tirac, covering raft
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are>.a7 oz tlae s C a to , and viz can tea ort
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April 11, 2018
Deschutes County Board of Commissioners
c/o Anthony Ranguine
Deschutes County Community Development Department
117 NW Lafayette Avenue
Bend, OR 97708-6005
Re: Appeal of Hearings Officer's Decision; File Nos. 247 -17 -000629 -PA;
247 -17 -000636 -CU, 637 -TP
Commissioners,
www.colw.orcg
Central Oregon LandWatch ("LandWatch") is a conservation organization which has advocated for
the preservation of lands and wildlife in Central Oregon for over 30 years. We urge you to deny the
planned development approval and plan amendment and affirm the Hearings Officer's decision to
deny the surface mining and recreational facilities.
Deschutes County's mule deer (Odocoileus hemionus) herds have returned to the same winter ranges
over millennia. The deer are not biologically equipped to adapt to rapid changes in development
patterns in their historical winter ranges. All of the county's developed lands, including this rural
residential neighborhood, are at lower elevations, right where the wildlife need to congregate in the
winter. Mule deer are prized by wildlife watchers and hunters alike, but in recent decades their herd
numbers have plummeted. Deschutes County protects its critical deer winter range in part by
prohibiting recreational facilities there.
There is a large preponderance of evidence that mule deer population numbers are experiencing
significant decline across much of Oregon generally and in the Tumalo Deer Winter Range
specifically. Winter range is particularly important to individual deer survival and collective herd
health as it supplies critical forage and cover when the animals are at their most vulnerable, on the
very edge of survival, during Central Oregon's long and often harsh winter. Over the years this
essential habitat has seen significant cumulative impact, including the fragmentation, degradation,
barriers to wildlife movement, and disturbance to wildlife behavior that has accompanied rural
development and concomitant activity on the range, particularly in Deschutes County. Ironically,
frequent encounters with mule deer within local urban areas and neighborhoods, far from being
indicative of healthy population numbers, may well be due in large part to displacement from much
of their rural habitat. Finally, mule deer also serve as a sort of indicator species for the health of the
range and as a proxy for the other wildlife that depend on it.
We know that much of your deliberation often involves weighing conflicting perspectives on the
balance between development and resource protection. In this case, the proposed recreational
facility must be denied in compliance with the county's longstanding protections for the limited
amount of land set aside as winter range habitat. While a water ski lake can be located anywhere,
mule deer are not biologically equipped to alter their ancient patterns of returning to the same winter
range habitat year after year, so the habitat boundaries cannot be moved. We request that you uphold
the Hearings Officer's decision to deny this recreational facility in the county's winter range.
Respectfully,
A41t,
Nathan Hovekamp
Wildlife Program Director
Central Oregon LandWatch
nathan@colw.org
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In Opposition to Application Files 247 -17 -000627 -CU,
-629-PA, -636-CU, -637-TP9 -639-CU, -640-SP, and -641-LM
Chair DeBone and Fellow Commissioners Baney and Henderson:
I am AB, pediatric oncologist and OHSU faculty member. I retired 2 years ago from St.
Charles Healthcare System (SCHS) administration & cancer center, and after chairing the
SCHS Institutional Review Board for 6 years. My wife & I have been homeowners in
Central Oregon for 40+ years. At least 80% of all residential lots are required to have
open space. Our own 1.5 acres on Awbrey Butte has >95% open space that in just the
last 3 months deer, elk, coyotes, squirrels, rabbits, and chipmunksAenjoy":. mice too, both
inside and out. It is illegal for us to compromise the 80% minimum requirement!
I will address 80% open space minimum requirement vs. what I see as 9% on the revised
Water Ski Lake Location Map with tax lot numbers.
The Recreation Oriented Facility proposed lot line adjustments comprise 32.11 acres
(Lots 824,828). Of these 32 acres, 6 are planned [as I understand it] for 3 houses (Lot
823...) and their surrounding property. That leaves 26 acres of RR -10 lots for the Wildlife
Overlay Zone (WOZ). Of those 26 acres of WOZ, the liner of the two artificial,
constructed, lake structures cover —24 acres, leaving 2 acres, or 9%, of open space. How
is it legal to cover 90+% of WOZ with hardscape when no more than 20% is allowed?
Moreover, the synthetic liner is impermeable [otherwise no lake] and prevents contact of
life above with the soil underneath. It restricts 24 acres for human use [including loud
human use] and denies habitat that is reserved by community consensus, the Central
Oregon comprehensive plan, and the law, for wildlife. The liner also guarantees that all
the water used in the lakes will evaporate into the air with essentially no beneficial use
for habitat purposes and zero groundwater recharge.
As longtime residents and healthcare providers of both humans and subhuman animals,
we don't understand why you and county staff would approve converting 24 acres of
wildlife habitat space to recreational facilities on 32 acres of Goal 5 protected area.
As healthcare providers for people, pets and wildlife, we expect you to continue to
protect Central Oregon and deny the recreational facility application.
Archie Bleyer, MD,
Clinical Research Professor
Knight Cancer Institute, Oregon Health & Science University
Professor of Pediatrics, University of Texas Medical School at Houston
Maureen Bleyer, RN
40+ Year Residents of Sunriver and Awbrey Butte
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