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2019-468-Minutes for Meeting October 21,2019 Recorded 11/13/2019BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County Nancy Blankenship, County Clerk CJ2019-468 Commissioners' Journal 11/13/2019 1:55:47 PM 1101 901111111111111111111111 111 BOCC MEETING MINUTES 1:00 PM MONDAY October 21, 2019 ALLEN CONFERENCE ROOM Present were Commissioners Phil Henderson, Patti Adair and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Keith, Board Executive Assistant. Several citizens and several identified representatives of the media were in attendance. CALL TO ORDER: Chair Henderson called the meeting to order at 1:00 p.m. ACTION ITEMS 1. Pelton Round Butte Project Update Eric Underwood and Megan Hill of Portland General Electric gave an update on projects and fisheries reintroduction efforts. Handouts are attached to the record. The history of the water quality study was reviewed from 2015 through 2017. The key finding was with fish passage there was increased algae growth in the lower river system. Historically when dams were built the water was all bottom draw and now the surface water sent downstream is warmer and which has more nutrients which end up downstream. Any scenarios reviewed had trade-offs, including algae and water temperature. The water quality workgroup will review all of the scenarios and present BOCC MEETING OCTOBER 21, 2019 PAGE 1 OF 8 recommendations. The goal is to balance the upper and lower Deschutes River. Additional efforts are focused on restoring salmon and steelhead in the Deschutes River. A monthly newsletter reports fish counts. 2. PAC West Legislative Session Planning Whitney Hale, Public Information Officer and Phil Scheuers of PAC West presented the planning for priorities for the 2020 legislative session. Laura Skundrick Administrative Assistant provided clerical support for the 2019 legislative session. Commissioner Henderson feels it isn't beneficial to have a large spreadsheet of bills and would like to see someone from PAC West prepare the bill tracking. Commissioner Adair doesn't feel the 7:00 a.m. conference calls were effective. Commissioner Adair expressed the need to lobby now for a new judge position for Deschutes County. Commissioner DeBone feels the phone calls have been productive in the past. Commissioner Henderson feels that the current conference call structure is generally unproductive. Commissioner Adair feels it is important to have presence in Salem. Phil Scheuers reported on a tracking system of legislative bills called Bill Tracker. PAC West can identify priority bills for Deschutes County and provide system permissions for review and comments. Mr. Scheuers requested a top 5 priority list from the Commissioners. Mr. Scheuers would provide training on the Bill Tracker system. Commissioner Henderson requested a presentation of the Bill Tracker system within the next month. Regarding the legislative phone calls, Commissioner DeBone suggested video conference calls as an option. The legislative calls last session were poorly attended by legislators. Commissioner Adair supports additional in-person meetings with legislators. Mr. Scheuers recommends pairing calls to legislators down to just the priority bills rather than the entire list of bills. The Board recommended contacting legislators to find a consensus of times that work for a legislative conference call. Commissioner Adair recommends a pre -session call as well and to poll them for best times for the calls to be scheduled. County Administrator Anderson noted the departments are also BOCC MEETING OCTOBER 21, 2019 PAGE 2 OF 8 asked to review the bill list to set priority as well and recommends the departments be mindful of narrowing their priority list. At present, the #1 priority of the Deschutes County Commissioners remains securing an additional circuit court judge position. Mr. Scheuers explained this may not be a red flag item for the short session and the Legislature will not be looking at substantially expanding the budget during the short session. He did note that pressing for revised eligibility criteria for courthouse expansion funding should fit well in the short session. Mr. Scheuers commented on a proposed letter of support for Community Dispute Resolutions for University of Oregon and reported there has been decreased funding in this type of service. Discussion held on the hemp industry and if it is going to be considered in the short session. Mr. Scheuers reported on issues that will most likely be considered: cap and trade, specialty spirits, agriculture fix bill, coordinated care organization implementation, prevailing wage for enterprise zones, and public records. Accessory dwelling units will remain a topic Community Development Department will track. 3. Natural Resource Protection FTE Increase and Consideration of Budget Adjustment County Forester Ed Keith presented the proposed FTE request for the Natural Resources Protection Department and consideration for budget adjustment. The Board had directed Mr. Keith to draft a job description that would replace the current contract for the Project Wildfire Director. Commissioner Henderson reiterated the one goal of this change was due to the need for further work to be done and explained with an independent contract there are certain time limitations whereas an actual employee could operate full time and focus on increasing the number of Firewise communities. Mr. Keith has worked with Human Resources to draft a job description for a Fire Adapted Communities Coordinator. The position would start an employee at step 1 of $28.54 per hour. HR used data for equivalent jobs with similar programs. The estimated time of start would be as soon as possible. BOCC MEETING OCTOBER 21, 2019 PAGE 3 OF 8 The current contract for project wildfire ends January 31, 2020 and this would allow for an overlap of staff support for better transition for coverage. Commissioner Adair supported having a candidate with a skill level and appreciated the Associates degree in Forestry. Mr. Keith explains this requirement stresses the need for experience working in the field of forestry. HR gave input on the education originally recommending a simple high school education would be sufficient. The Board feels a higher level of education is necessary for natural resource and forestry training and supported to have clarification on the education requirement. This Fire Adapted Communities Coordinator position replaces the contract of the Project Wildfire Coordinator and Mr. Keith will include a bullet item to the job description that this position provides staff support to Project Wildfire. Commissioner Henderson is open to the overlap efforts if there is a need for a transition level. Commissioner Henderson inquired if the budget transfer should be considered for additional work. Mr. Kropp noted the Board set aside lottery funds this year for fuels reduction. Commissioner DeBone explained the guidance for the dollars he could see allocating $50,000 and if there are other projects we could find the funding. Commissioner Adair would support $40,000 for fuels reduction. Revisions will be made to the job description. Commissioner Adair inquired if Mr. Keith would be contacting the community colleges for recruitment. The Board gave authority to begin the recruitment process. A revised resolution will be considered by the Board at the Wednesday, October 30, 2019 BOCC meeting. 4. Consideration of Board Signature of Order No. 2019-044, Extending Resolution of Intent to Rezone Resolution No. 2009-035 Will Groves, Community Development Department presented this item for discussion and reported on the proposed rezoning of the surface mine in 2009. Mr. Groves gave history on the property. A copy of the presentation is attached to the record. The original application of Lower Bridge Road, LLC was approved by the Board of Commissioners in 2009 and was granted an extension in 2015 and in 2017. The applicant has requested an extension of an additional year to finish the environmental work. Mr. Groves explained BOCC MEETING OCTOBER 21, 2019 PAGE 4 OF 8 there are no applicable criteria for the extension. Assistant Legal Counsel Adam Smith reported on comments received asking for a public hearing. Commissioner Adair stated upon reading the land use file, Deschutes County would still be within the rules of the land use application. The current extension expires on October 26, 2019. This agenda item is limited to the single issue of the applicant's request for an additional one year extension to complete the mandated environmental due diligence/work as required by the 2009 approval. Discussion on extension time frames. The Board expressed support. DEBONE: Move approval of Order No. 2019-044 ADAIR: Second VOTE: DEBONE: Yes ADAIR: Yes HENDERSON: Chair votes yes. Motion Carried 5. Projects Update/Status Discussion Community Development Department Director Nick Lelack presented the project update for the Community Development Department including the vacant land opportunities in the rural counties, wildfire mitigation advisory committee, Terrebonne feasibility study, flood plain, and non -prime resource lands. Commissioner DeBone offered lottery funds to assist the department with affordable housing efforts. Mr. Lelack stated grant applications are in the process for funding. Commissioner Henderson explained he is in support to move the non -prime resource item forward. Commissioner DeBone is also supportive. Commissioner Adair is supportive of moving forward and has always been supportive. Mr. Lelack explained this will initially be scheduled for deliberations / consideration and recommendation from the Planning Commission. BOCC MEETING OCTOBER 21, 2019 PAGE 5 OF 8 6. Preparation for Public Hearing: Flood Plain Amendments Nicole Mardell, Community Development Department presented a summary of the model code amendments in preparation for a public hearing. Staff are seeking to update the County Code to be consistent with state law and with cluster/planned unit developments and split zone properties. Ms. Mardell reported on the requirements related to flood plain zones and the national flood insurance program. FEMA had prepared a flood plain map and flood hazard data for Deschutes County. A public hearing is scheduled for the BOCC meeting of November 6. Staff are meeting with stakeholders for input on modifying the code. Assistant County Legal Counsel Adam Smith reported on the public process with the flood plain and by splitting into three parts to consider it helps to identify areas of agreement to create an amendment that is acceptable to all parties. 7. Review of Draft Presentation for Bend Rotary Club Public Information Officer Whitney Hale presented a draft for the Commissioners presentation at the Bend Rotary Club that is scheduled for October 22, 2019. The Board made recommendations for change. 8. Update on Overturf Tower 911 Operations Director Sara Crosswhite and Facilities Director Lee Randall provided an update on the Overturf Tower. Ms. Crosswhite has requested an update from ADCOMM. The generator is in the process of procurement as well as the pole. The pole has engineered specifications. Commissioner Henderson inquired why it is necessary to have ADCOMM working on a construction project that does not appear to require that level of skill/expertise. Commissioner Henderson was also curious as to why the project has been delayed, noting that it was authorized in January 2018. Ms. Crosswhite shared a timeline for the project. Mr. Randall explained the specifics in the bid for procurement items including timing for the project. The original bid date prevented a number of contractor bids due to their BOCC MEETING OCTOBER 21, 2019 PAGE 6 OF 8 responsibility on other projects. Commissioner Henderson inquired why Deschutes County Facilities is not doing the work in-house. Dan Hopper reported there was coordination and dovetail of systems. Mr. Randall explained the department would need to provide full time on-site supervision and the department doesn't have that capacity and would also require a support level for contract work. There is concern of moving a 70 foot pole through the neighborhood and will require excavation and/or blasting to place cable in the ground. A revised RFP will be sent out November 5. Since we are close to the winter season, the work may be delayed based on weather. COMMISSIONER UPDATES • Commissioner DeBone attended a court mediation ceremony and an innovation lunch meeting. • Last week, Commissioner Adair also attended the court mediation. The Bend Venture conference as well as the OTC/COACT meeting. Commissioner Adair contacted the Bend Parks and Recreation about the fire station on the east side that is being used for storage inquiring if it could be used as a homeless warming stations. She contacted DHS regarding sexual abuse reporting and a problem with the reporting phone number. • Commissioner Adair contacted the Forest Service, Ducks Unlimited, and the Deschutes County Sheriff's Office regarding the Deschutes River corridor resident's concerns of duck hunting. She has also contacted Congressman Walden's office to consider a land trade with the Forest Service. After discussion, the Commissioners would like to conduct a site visit to the property. Commissioner Adair expressed the need to provide safety. Commissioner DeBone would advocate for clear signage of the areas that are in the no shooting areas. EXECUTIVE SESSION: At the time of 4:36 p.m., the Board went into Executive Session under ORS 192.660 (2) (e) Real Property Negotiations. The Board came out of Executive Session at 4:55 p.m. to proceed as discussed. BOCC MEETING OCTOBER 21, 2019 PAGE 7 OF 8 OTHER ITEMS: • A notice of a public hearing was received today regarding the Stevens parcel and Mr. Lewis reported on the Stevens Road tract. A press release was sent out today the state land board stating it is for sale and they are taking public comment but hasn't declared it a surplus. • The Board conducted the annual jail inspection today and discussed options of improvements. Commissioner Henderson will draft a response to bring to the next BOCC meeting. • County Administrator Anderson reported there is an affordable housing advisory committee meeting in Redmond. James Lewis, Property Manager reported there are ten members on the committee. The City of Redmond will have this project on the agenda for the Joint Meeting with the BOCC on November 12, 2019. ADJOURN Being no further items to come before the Board, the meeting was adjourned at 5:08 p.m. DATED this 3 Day of CCt 2019 for the Deschutes County Board of Commissioners. ATTEST: RECORs.. ING SECRETARY BOCC MEETING PHILIP G. ENDERSON, CHAIR PATI ADAIR, VICE CHAIR ANTHONY DEBONE, COMMISSIONER OCTOBER 21, 2019 PAGE 8 OF 8 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.org BOCC MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:00 PM, MONDAY, OCTOBER 21, 2019 Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend This meeting is open to the public, and allows the Board to gather information and give direction to staff. Public comment is not normally accepted. Written minutes are taken for the record Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Boards ability to address other topics. Meetings are subject to cancellation without notice. Item start times are estimated and subject to change without notice. CALL TO ORDER ACTION ITEMS 1. 1:00 PM Pelton Round Butte Project Update - Eric Underwood, PGE 2. 1:30 PM Pac/West: Legislative Session Planning - Whitney Hale, Public Information Officer 3. 2:00 PM Natural Resource Protection FTE Increase and Consideration of Budget Adjustment - Ed Keith, Forester 4. 2:20 PM Consideration of Board Signature of Order No. 2019-044, Extending Resolution of Intent to Rezone Resolution No. 2009-035 - William Groves, Senior Planner 5. 2:45 PM Projects Update/Status Discussion - Nick Lelack, CDD Director 6. 3:00 PM Preparation for Public Hearing: Flood Plain Amendments - Nicole Mardell, Associate Planner Board of Commissioners BOCC Meeting Agenda of 2 Monday, October 21, 2019 Page 1 7. 3:15 PM Review of Draft Presentation for Bend Rotary Club - Whitney Hale, Public Information Officer 8. 3:30 PM Update on Overturf Tower COMMISSIONER'S UPDATES EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN 11\ Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar Meeting dates and times are subject to change. If you have questions, please call (541) 388-6572. Board of Commissioners BOCC Meeting Agenda of 2 Monday, October 21, 2019 Page 2 �J Agency vw ,)__ \(,N, c), .) ,i,,J _,., v cesk ____ c (--- BOCC MEETING (Please Print) Name .......,,L,. Q._._ .,__ , Page # of Pages Please return to BOCC Secretary. CONFEDERATED TRIBES OF WARM 1855 SPRINGS June 2019 N/ Deschutes Water Quality and the Pelton Round Butte Project Frequently Asked Questions 2019 Water Quality Study: Design and Process 1. Why was this study conducted? Since our salmon and steelhead reintroduction efforts in the Deschutes Basin began, PGE and the Confederated Tribes of Warm Springs have worked together to make well-informed, science -based decisions for the benefit of fish and water quality above and below the Pelton Round Butte Hydroelectric Project. Several years ago, it became clear we needed a better understanding of water quality conditions in the upstream tributaries, reservoirs and Lower Deschutes River to continue making these informed decisions. • This report supplements our ongoing fisheries research and water quality monitoring program. It is one collection of information within a larger dataset, helping us and the Pelton Round Butte Fish Committee make thoughtful decisions backed by an ever-growing body of scientific evidence. • While the study was designed primarily to give decision -makers in the basin the data needed to make informed management decisions, we know many other people care about the river as well, including anglers, tribal members and environmental advocacy groups. This study will help give everyone a deeper understanding of what's going well on the Deschutes and what we might be able to do together to make basin -wide improvements. 2. Who conducted the study? This water quality study was conducted and authored by Joe Eilers and Kellie Vache of MaxDepth Aquatics. They are respected experts on water quality and modeling, with extensive water quality research experience in the Deschutes Basin and throughout the region. 3. What's in the study? The study has two main parts: water quality monitoring and scenario modeling. • The monitoring section aims to describe the status of water quality in the river and reservoirs and assess historical changes. • The modeling section forecasts possible outcomes that could result from changes in operation of the project, as well as changes driven by climate change. These results help us understand the current impact of the Pelton Round Butte Project and assess the feasibility of various operational scenarios. • For a breakdown of topics in the study, see our Reading Guide at www.portlandgeneral.com/waterquality. 4. How were the study sites and parameters chosen? We chose sites distributed along the Lower Deschutes in order to represent the entire length of the river below our project. Fewer sites were sampled in the reservoirs and tributaries since the focus of the study was the Lower Deschutes. • We also determined sites based on their accessibility over multiple seasons and years so that the data could track variability over time. • Where we could access them, we selected a subset of sites from a similar study that was conducted in 1997, allowing for historical comparison. • To evaluate water quality, we studied parameters that measure water chemistry (pH, dissolved oxygen, temperature and conductivity), nutrients (nitrogen and phosphorus), and biological factors (periphyton, phytoplankton and zooplankton). • These parameters allowed us to evaluate the productivity and overall condition of the water. 5. Why doesn't the water quality study discuss fish, macroinvertebrates or other wildlife? We conduct ongoing fisheries research in the Deschutes Basin and completed a macroinvertebrate study in 2016. These studies have already given us extensive information about fish and insect life in the basin, and will be considered along with the results of the water quality study when making decisions about how the project is managed. Adding more biological components to our large water quality dataset would have made an already complex study unwieldy without yielding any more definitive answers to our management questions. 6. How and why does the water quality study use models to generate and analyze data? A model is a mathematical tool that provides a simplified description of what's happening in the river and reservoirs. The models in this study are used to organize and interpret large datasets to help us understand how water quality might change with different operational scenarios. Although all models are simplifications of natural systems, they can be extremely helpful for isolating key factors in lake and river behavior, thereby demonstrating how a waterbody might respond to changes. We can use this information to decide whether changes would be effective, whether we need to conduct more evaluation or try a different approach. 7. Are these models accurate? Robust models like the ones used in this study require extensive data inputs, rigorous calibration and testing. To ensure their utility and quality, the models used in the study went through this process. These models are widely - accepted among water quality scientists and researchers and have been thoroughly tested. • However, the models do have their limits. Certain parameters, such as temperature, can be modeled with a high degree of accuracy, whereas complex biological factors, such as algae growth, are more difficult to model precisely. • The scenarios are not intended to provide hard-and-fast direction for management change, but provide insight into what types of changes might be worth exploring and the potential results if changes are adopted. Before implementing any long-term policies or projects based on the scenarios, we will likely need to perform pilot tests or collect and assess additional information. • The models are a starting point and will be a useful tool moving forward in this process. They will also be useful in helping us rule out actions that would be ineffective for achieving desired results. 8. How and why did this study go through an independent technical review? Scientifically -sound studies are typically reviewed by independent scientists prior to publication. Technical reviewers provide suggestions for improvement, allowing the authors to strengthen their analysis and reporting before finalizing the study. • Tetra Tech, an engineering, construction and environmental consulting firm, provided two rounds of review, reading drafts of the study and offering their suggestions. Tetra Tech has the modeling, biological and water quality expertise to critically review the report. 9. Why did this study take so long to complete? Comprehensive, large-scale studies like this one, with widely -dispersed sites sampled over the course of several years, take time. Our sample collection produced a high volume of data that had to be reviewed, analyzed and interpreted. • The complex models used in the study take months to build, calibrate and test. • Once a draft of the study was completed, it was also important to allow time for independent technical review. While the measured pace of science can be frustrating, multi-year studies are worth the extra time, capturing variation in the environment and producing results that are more likely to reflect nature's complexities. For example, Central Oregon experienced drought in 2015 and record snowfall in 2017. A one-year study would not have captured this variation and could have led to misleading conclusions. 10. How is this study different from other reports that have been generated on Deschutes water q uality? We — and the independent consultant we commissioned to conduct this study — follow rigorous protocols for data collection, analysis, review and publication. Our goal with this report was to provide comprehensive, independently reviewed analysis of the complexity of water quality in the Lower Deschutes. • The scope and scale of the study is much broader than others that have been conducted on the river, examining multiple water quality factors (including temperature, algae, nutrient composition, dissolved oxygen and pH) in multiple areas (the tributaries, reservoirs and lower river) at multiple time scales (variation throughout the day, from season -to -season, from year- to-year and historical changes over several decades). • Additionally, this is the first report on the Deschutes Basin to develop and utilize models to understand interactions and forecast changes that affect the Lower Deschutes River. Background Information: Water Quality Management at Pelton Round Butte 11. What does the Selective Water Withdrawal (SWW) do? Is it working as intended? The Selective Water Withdrawal, completed in 2010, is the centerpiece of the Pelton Round Butte Project's Fish Passage Plan. The facility has effectively reconnected the Deschutes Basin, which was artificially divided for half a century. The SWW is working as intended; fish are now migrating both downstream and upstream of the project and benefiting from a more natural seasonal temperature pattern. • The SWW was designed with direction given by stakeholders involved in the relicensing process in the late '90s and early 2000s. • It works by creating attractant currents in the surface of Lake Billy Chinook, pulling in juvenile fish and enabling their transport downstream. Prior to the SWW's installation, juvenile fish were unable to find the outlet to the lower river and couldn't continue their ocean-going migration. Since construction, over 1.2 million juvenile fish have been passed through the system on their way downstream to the ocean. • By mixing water from both the surface and depths of the reservoir, the SWW also reduces the project's effect on water temperature in the Lower Deschutes. The water blend released downstream targets what temperatures would be like without the dams' presence, restoring natural seasonal temperature patterns. This restored temperature regime helps juvenile salmon emerge from their spawning gravel earlier. For fall Chinook, this allows the juveniles to grow larger before leaving the river, so they have higher survival rates when they enter the ocean — as reflected in the high return rates of adult fall Chinook the Deschutes has enjoyed since the system became operational. The large-scale, long-term Deschutes reintroduction effort is widely - supported by many individuals and partnering organizations. While most of the SWW's outcomes were anticipated by the licensees and our partners, they were not necessarily expected or welcomed by some members of the public. To some, the warmer water temperatures, though more natural, feel abnormal because they're different from the unusually cold spring and early summer temperatures of the previous six decades. This discrepancy and the slow pace of adult fish returns have contributed to a perception that the SWW is damaging the river and the reintroduction effort is failing, when in fact, they're both working as intended and improving each year, albeit slowly and subject to many factors outside our control. 12. What is the process for deciding when to release surface water, bottom water, or a blend? We release 100% surface water from late fall through early spring to optimize fish collection. As temperatures at the ReRegulating Dam rise in the late spring, we begin increasing the percentage of bottom water added to the blend. • We determine the timing of the start of bottom water mixing by comparing discharge temperatures to a model of how the river would warm without the dams (without -project temperatures). The timing varies from year to year depending on weather and conditions in the tributaries. • Throughout the summer, we continue to add bottom water to the mix, still comparing the discharge temperatures to the model. Typically, by late summer we are releasing the maximum amount of bottom water (GO%) to the blend. By early November we go back to full surface -water release to conserve cold water for the following summer. • We always consult with our two water quality regulators (the Oregon Department of Environmental Quality and Tribal Water Control Board) once we've called for a blending change. All decisions regarding blending are directed by state standards and the guidelines written in our Water Quality Management and Monitoring Plan. 13. Why is surface water released into the lower river throughout most of the year? Why is warm water released when the weather gets warmer? We are trying to reduce our own impact on the river. One of the ways we do this is by releasing water downstream that matches "without -project" temperatures — temperatures that would occur naturally if the dams weren't there. • This target temperature is calculated using measurements from the incoming tributaries. Water is warmer in the summer than it is in the spring — that's what's natural, so that's what we release downstream. • Cold water from the depths of Lake Billy Chinook is a finite resource that can be depleted if we release too much bottom water early in the year. If we do that — as we did before the SWW was constructed — we will cause the river to be unnaturally warm in the late summer and early fall. To create natural and more optimal conditions for fish, we add the available cold water to our blend strategically, to closely match "without -project" temperatures for as much of the year as possible. • Juvenile fish also tend to move in the top layers of Lake Billy Chinook. To effectively capture and transport these fish, we need to pull water from the surface of the reservoir. 14. How do managers of the Deschutes Basin balance water quality objectives with fish passage goals? Both aspects of SWW operation — water quality and fish passage — have standards that we are required to meet as part of our regulation under Oregon Department of Environmental Quality and the Tribes' Water Control Board. PGE and the Tribes, with consultation from the Fish Committee, make management decisions to optimize both outcomes. • We've made changes over time to improve both fish collection and water quality, bringing us closer to our long-term goals. These changes include nighttime generation to increase our fish collection numbers and modifying our blending schedule to more closely predict project outflow temperatures. • These changes are a result of our adaptive management philosophy; we identify an issue, gather more information and make operational changes to improve the outcome. The same methodical process is used to improve progress toward water quality objectives and fish passage goals. • This water quality study is a prime example of our methodical, science - based approach. The Fish Committee will review information from this study in conjunction with numerous other reports, working to identify potential solutions that maximize results throughout the entire basin. 2019 Water Quality Study: Results 15. Is the Deschutes River healthy? There is no single measurement that can provide a complete answer as to whether any river is healthy or not. There are many ways in which the Deschutes is thriving — record Fall Chinook migration, robust fish and bird populations and successful restoration projects throughout the basin. Other aspects of river health, such as nutrient and algae levels, are more concerning. • Throughout the entire Deschutes River Basin, conditions are highly variable from section to section. For example, the Metolius River boasts clear and cold waters that are largely unaffected by human activity. However, the reaches of the Deschutes below Wickiup Reservoir and the city of Bend are warmer with higher nutrient levels, likely caused by the effects of agricultural and urban runoff. Some measurements of water quality assessed in the report, like high nutrient levels, contribute to undesirable water quality conditions such as toxic cyanobacteria blooms. We will target these parameters when considering management changes. • Other parameters, such as higher temperatures in the early spring, are less troubling because they were intended outcomes of the SWW, designed to aid fish development. The Deschutes continues to provide abundant habitat for a variety of fish and wildlife species and remains a world-class destination for people who want to enjoy the basin's recreational opportunities. 16. How does water quality in the Deschutes compare to other rivers in the region? All rivers have unique characteristics that make them difficult to compare. The source of water (i.e. spring fed vs. snowmelt), underlying geology and degree of human influence can all have a significant effect on water quality and vary widely from river to river, even within the state of Oregon. • The Deschutes is unique in one major way: it has an extremely stable flow. This can influence periphyton (attached algae) production because the river rarely experiences scouring events in which large flows flush these algae downstream. This type of event is far more common in other river systems. • Phosphorus in the Deschutes is also naturally elevated due to geologic sources. • The water quality study did find that the Deschutes has higher levels of chlorophyll and nitrate compared to most other Oregon rivers, although the Rogue is higher in nitrate. pH levels on all the rivers compared in this study are high but are highest in the John Day and the Lower Deschutes. The Deschutes has typical levels of dissolved oxygen. 17. What is water quality like in the three main tributaries to the Deschutes (the Metolius, Crooked and Upper Deschutes Rivers)? How have these rivers changed over time? The Metolius, Crooked and Upper Deschutes Rivers have distinct characteristics with respect to hydrology, temperature and chemistry. • The Metolius River, which provides nearly 40% of the inflow to Lake Billy Chinook, is the coldest of the three tributaries. It is primarily fed by groundwater discharge from the Cascade Mountains and is not impeded by reservoirs. • Flows in the Crooked and Deschutes are highly regulated by reservoirs and irrigation withdrawals. The Crooked River is the warmest on average, but the Upper Deschutes has the highest peak temperatures in the summer. • Compared to the other tributaries, the Crooked River is the largest source of nitrate and ammonia, contributing 86% of the dissolved nitrate to Lake Billy Chinook. It is also the most turbid. • All three tributaries have increased in temperature since 2007, with the largest increase taking place in the Upper Deschutes. pH has increased in all three tributaries since 1960, with most of the increase occurring prior to 1990. • All three tributaries have high concentrations of phosphorus, primarily a result of the underlying geology of the region. 18. How much influence do these tributaries have on the condition of the Lower Deschutes River? The condition of the Lower Deschutes River is, in many ways, a direct reflection of water quality in the tributaries, especially with regard to flows, temperature and nutrients. Our license requires that we operate our project as "run of the river," which means that flows entering Lake Billy Chinook are roughly the same as our output at the ReRegulating Dam. The SWW allows us to do the same for water temperature, creating a blend of surface and bottom water that more closely matches what downstream temperatures would be like without the project's presence. • Higher temperatures in the tributaries are directly translated into higher temperatures downstream. Nutrient laden waters from the tributaries are discharged downstream as well, which means that improving water quality in the Deschutes will require basin -wide strategies. 19. What changes has the SWW caused in the reservoirs and in the Lower Deschutes River? The SWW has changed flow patterns in Lake Billy Chinook, creating attractant currents in the surface of the reservoir to pull in juvenile fish. Before the SWW was constructed, only cold water from deeper in the lake was passed through the project — until that cold water was depleted in midsummer, after which the entire outflow was unnaturally warm. Now, in the spring and early summer, a larger proportion of the discharge from Round Butte Dam is comprised of water from the Crooked River, which is warmer, less dense and floats toward the surface of the reservoir. Because the Crooked River has higher nitrate levels, more nutrients are transported to the Lower Deschutes River than before, potentially causing elevated rates of algae growth downstream. Additionally, algae production has increased in the reservoir itself — a result of Crooked River water being pulled further down the reservoir, closer to the project. The composition of algae and cyanobacteria has also likely changed in Lake Billy Chinook, and there is more mixing (less stratification) in the reservoir. Concentrations of nitrate have increased in the Lower Deschutes River since 2010. It is possible that additional nitrate has allowed for an increase in periphyton, but we currently lack the data to confirm this hypothesis. • The SWW has allowed for the passage of fish downstream, so there are more juvenile fish in the Lower Deschutes River now than prior to 2010. More importantly, fish are now able to migrate freely throughout the entire Deschutes Basin, more closely reflecting the natural processes that occurred in the ecosystem prior to dam construction. 20. Has there been an increase in algae on the Lower Deschutes? Unfortunately, algae data collected in the Lower Deschutes River during a 1997 study were not properly processed by the taxonomist. Consequently, our two datasets cannot be compared. Although we cannot use this data to confirm whether algae composition or quantity has changed in the Lower Deschutes, summer increases in nitrate concentrations, pH and dissolved oxygen suggest that algae has likely become more abundant. 21. What causes algae? Are they a problem? Algae are a natural part of any ecosystem and are present in all rivers and reservoirs. They can be found attached to substrate on the river floor (periphyton) as well as suspended in the water (seston). Algae growth can be exaggerated by excess nutrients, especially phosphorus and nitrogen, and are typically more abundant in slower flowing, warmer waters. • There are multiple types of algae in the Deschutes, some of which form the base of the aquatic food web, others of which are considered "nuisance" algae. These algae can be inconvenient for river users and are typically less nutritious to aquatic organisms. Algae can become a problem when rapid blooms lead to mass decomposition, using up oxygen and creating "dead zones" in the water. Some toxic algae can be harmful to human health. • Managing algae can be challenging because project operations intended to improve water quality can create conditions that favor the growth of one form of algae over another. There is no evidence to suggest that Deschutes algae are hurting fish. 22.What influences pH levels on the Deschutes? Are pH levels concerning? Higher pH values in Lake Billy Chinook can be attributed to an increase in algae production, while pH in the Lower Deschutes River varies throughout the day in response to periphyton activity. pH has increased over the full period of record (1960-2017) and has not shown a more pronounced increase since the SWW went into operation. pH levels recorded on the Deschutes are comparable to other Oregon rivers, and we have no indication that current levels are harmful to fish. 23. How have agriculture, urbanization and development in Central Oregon affected the condition of the Deschutes Basin? There is a long history of development in Central Oregon, which has certainly had consequences for the Deschutes River ecosystem. • Hydropower projects constructed in the basin, including Pelton Round Butte, have caused major changes over the last century. In addition to blocking or limiting fish passage, dams have altered temperatures, changed the composition of nutrients and disrupted the flow of gravel and woody debris downstream. While many of these problems are now being corrected, there will be some long-lasting effects on the ecology of the basin. Irrigation withdrawals for urban and agricultural purposes have affected the timing and magnitude of river flows. Additionally, runoff from agricultural and urban areas has likely contributed to poor nutrient chemistry, especially in the Crooked and Upper Deschutes Rivers. Development in the Crooked Basin began as early as the late 1800s — there are hundreds of years of damage to undo. • Deschutes County is the fastest-growing county in Oregon. As urbanization increases throughout the basin, we may see impacts on water quality. • On the other hand, conservation practices and habitat restoration projects in recent years have helped improve or restore conditions for fish and wildlife in the Deschutes. 24. What role does climate change play in the condition of the Deschutes River Basin? Deschutes River Basin weather is often reflective of climate conditions throughout the Columbia Basin, and there are predictable effects of climate change we can anticipate. • Wildfires in the upper basin can increase nutrient input and sediment loading and elevate water temperatures by destroying streamside vegetation. As the size and frequency of wildfires increase, these effects may become more pronounced. • Snowpack and precipitation directly affect the amount of water available throughout the Deschutes, both above and below the project. Drier, warmer winters will result in less available cold water, making it increasingly difficult for project managers to conserve and strategically release bottom water from Lake Billy Chinook. 25.How do variable weather conditions from year to year (including snowpack and air temperature) affect the Deschutes? Years with less precipitation and a smaller snowpack result in lower flows on the Deschutes. Low flows can facilitate periphyton growth, especially during warm weather. High precipitation events typically result in high flows, flushing periphyton from the river and improving fish passage. 26. Does water quality in the Deschutes have a negative effect on fish returns? Water quality conditions in the Deschutes aren't typically a significant barrier to thriving fisheries or fish passage. Ocean conditions are far more important and usually outweigh any impact that the river might have. An exception to this would be in drought years, like 2015, when water temperatures at the mouth of the Deschutes can rise dramatically. • Low flows concurrent with summertime heating of the Deschutes canyon can result in temperatures beyond the optimal range for migrating adults. In 2015, sockeye salmon, already stressed by conditions in the Columbia River, took refuge in the Deschutes at night to escape the blistering temperatures of the main Columbia. But when the sun rose, the Lower Deschutes quickly became warmer than the Columbia, causing fish to die. Abnormally high temperatures in 2015 resulted in dismal sockeye returns throughout the Columbia River Basin. • It is important to note that weather, sunlight and flows are the driving factors behind these harmful conditions, not operation of the SWW or outflow from the Pelton Round Butte Project. 27. What do the modeled scenarios suggest about the effect of potential management changes on Lower Deschutes water quality? The scenarios show that climate conditions, nutrient inputs and project operations influence water temperature and quality. In general, releasing more cold water in the spring will likely reduce growth rates of periphyton in the Lower Deschutes River and reduce the transport of phytoplankton downstream. However, there are limitations to this type of management change. • Operational changes that reduce surface water withdrawal are limited by regulatory requirements and the finite amount of cold water in Lake Billy Chinook. The challenge in maintaining this volume of cool water will likely be exacerbated by rising regional temperatures and climate change. A reduction in surface withdrawal could also significantly hinder fish passage. • The scenarios suggest that nitrogen and phosphorus reduction, particularly in the Crooked River Basin, could benefit water quality downstream. While phosphorus is more naturally occurring in the basin and therefore difficult to control, nitrogen -reduction strategies, such as streambank protection and wetland construction, will likely reduce phosphorus to some degree. • The scenario modeling the installation of an algae curtain requires further study. • It is important to note that operational changes intended to benefit the lower river will likely affect water quality in the reservoirs, often to their detriment. • The scenarios by themselves do not provide enough information to move forward with an immediate management change. The Fish Committee and project managers will need to consider many factors not addressed in the water quality study, including fish passage, license requirements and state water quality standards, before moving forward with any new action. 28. What were the limitations of this study? While this study is comprehensive and highly detailed, it cannot and does not address every facet of water quality in the Deschutes. Here are some the study's limitations: • The study does not explore fish, their potential effect on water quality or water quality's effect on fish populations. Macroinvertebrates were previously studied in 2014-2016 so are not addressed in this report. River morphometry (variation in shape and depth of the river) is not considered when analyzing periphyton. Spatial variation of water quality in the reservoirs is not addressed. Only two sites were sampled in each of the reservoirs because the focus of this study is on the Lower Deschutes. Other limitations in the monitoring include: lack of sampling for algal toxins or pesticides and limiting most sampling to daytime hours. • River discharge was relatively stable during the span of the study, as it has been for the last decade. This is the second longest period in recorded history without a large, flushing flow event on the Deschutes. Water quality conditions would likely be very different after a flushing flow. — Note that in 2019, the Deschutes did achieve a flow exceeding 10,000 cubic feet per second (CFS) for the first time since 1996. We will observe and analyze any water quality changes that followed this moderately high flow. • The models, and therefore the scenarios, are limited to measures of water quality. The feasibility of each scenario will need to be considered in conjunction with other factors, like fish passage, license obligations, public safety and recreation access. Ongoing Decisions and Next Steps 29. Now that PGE and the Tribes have more information about water quality on the Deschutes, what happens next? 30. Where can I access additional information about the study? We have shared the study with the Fish Committee, Oregon Department of Environmental Quality and the Warm Springs Water Control Board. These groups will provide guidance on potential next steps. The water quality study is an important new component in our dataset and will help us to continue making science -based decisions that benefit the entire river. The models developed for the study will continue to be used to evaluate the impact of potential management changes. As we narrow our options, we may run additional, refined scenarios through the models. In collaboration with the Fish Committee, we will consider management changes by assessing their combined long-term effect on water quality and fish passage. We will also need to consider feasibility with respect to public safety and recreation access and our ability to meet license obligations. Decisions that impact water quality cannot be made in a vacuum. • Based on the results of the study, possibilities for next steps include programs that reduce or mitigate nutrient loading, changes to SWW operations, installation of an algae screen and others. The project co- owners cannot make unilateral decisions for the project — our direction will be determined through collaboration with our stakeholders and consultation with our regulators. www.portlandgeneral.corn/waterquality — Download the study and its data, reading guides, fact sheets and additional resources. www..ortland eneral.com/health deschutes — The story of our journey toward fish reintroduction on the Deschutes. Additional information about our history, collaborative partners, ongoing studies and more. Join us at an upcoming event to learn more about the study results and ask us your questions in person. Dates, locations and other logistics can be found on our Updates and Events page. Feel free to contact us with your questions at Deschutes.Passage©pgn.com. This reference document is intended to assist your reading of the Water Quality Study. For more in-depth information about the study's design, Pelton Round Butte operations and our next steps, please visit our website or download the water quality FAQ at: Portlandqeneral.com/WaterQuality. See page 8 of this guide for a list of additional resources. Summary of Study Sections Table of Contents List of Figures List of Tables & Appendices Acronyms & Abbreviations Executive Summary An overview of the entire study, including a description of its components and a summary of major findings. 1 Introduction Background information on the Pelton Round Butte Project, objectives of the study and existing environmental regulations regarding water quality. 2 Study Area Description of project operations, as well as topography, geology, land cover, weather and water flows in the Deschutes Basin; includes maps of the region. 3 Water Quality Monitoring Methods An explanation of monitoring methods used to collect data in the reservoirs, tributaries and Lower Deschutes River; includes a description of the data review process. 4 Reservoir Water Quality Data Results Results of water quality monitoring in the reservoirs (Lake Billy Chinook and Lake Simtustus) and tributaries (Metolius, Crooked and Upper Deschutes Rivers), including comparisons to other reservoirs in the region. Water quality parameters characterized in this section include: temperature, conductivity, pH, dissolved oxygen, transparency, nutrient composition, chlorophyll, phytoplankton and zooplankton. 5 Water Quality Changes in the Reservoirs Description of changes that have taken place in the reservoirs, comparing study results to data from the 1990s and 2000s. 6 Water Quality in the Lower Deschutes Results of water quality monitoring in the Lower Deschutes River and its tributaries, including a comparison to other Oregon rivers. Water quality parameters characterized in this section include: temperature, pH, dissolved oxygen, turbidity, chlorophyll and phycocyanin, periphyton, volatile solids, periphyton chlorophyll, entrained algae, nutrient chemistry and other chemicals. 2 7 Changes in Water Quality in the Lower Deschutes River Description of changes that have taken place in the Lower Deschutes River, comparing study results to a 1997 survey and available data from Oregon Department of Environmental Quality's Ambient Water Quality Monitoring Program (AWQMP) from the late 1950s to the present. 8 Discussion Analysis of results, discussion of limitations and a summary of major findings for the monitoring portion of the Water Quality Study. 9 Water Quality Modeling in Project Reservoirs Detailed description of calibration and validation for the project reservoir models. 10 Water Quality Modeling in the Lower Deschutes River Detailed description of calibration and validation for the Lower Deschutes River model. 11 Scenario Analysis: Integrated Modeling of Project Reservoirs and the Lower Deschutes River Discussion and evaluation of eleven scenarios that model the potential effects of operational changes, reservoir management options and climate conditions on the reservoirs and Lower Deschutes River. 12 Study Conclusions Major findings from each section of the study, recommendations for water quality mitigation and future research. 13 Acknowledgments 14 Literature Cited 3 Recommended Reading The following sections are recommended for those wishing to read an abbreviated version of the study. This list includes some of the most critical parts of the study as well as sections that summarize, analyze or discuss results. Executive Summary i -iv 1 Introduction 1-4 1.1 Objectives of Water Quality Study 2-3 1.2 Water Quality and Regulatory Context 3-4 2 Study Area 2.1 The Deschutes River Basin 5-13 2.2 Project Operations 14-16 4 Reservoir Water Quality Data Results 4.2.4 Comparison with Other Impoundments 146-147 6 Water Quality in the Lower Deschutes River 6.3 Comparison with Other Oregon Rivers 247-256 7 Changes in Water Quality in the Lower Deschutes River 256-271 7.1 River Temperature 256-257 7.2 1997 Survey 257-262 7.3 ODEQ AWQMP Data 263-271 8 Discussion 8.5 Limitations of the Water Quality Monitoring Portion of the Study 301-303 8.6 Summary of Major Findings Regarding Water Quality Monitoring 304-311 8.6.1 Tributaries to Project 304 8.6.2 Lake Billy Chinook 305-307 8.6.3 Lake Simtustus 307-308 8.6.4 ReReg Dam Release 309 8.6.5 Lower Deschutes River 309-311 11 Scenario Analysis 11 Scenario Analysis 430-432 11.1 Model Limitations 432-437 11.13 Statistical Comparison of Scenario Results 525-540 11.14 Scenarios Conclusion 540-543 4 12 Study Conclusions 545-556 12.1 Overview 545 12.2 Current Status 545-548 12.2.1 Water Quality Status in the Tributaries 545-546 12.2.2 Water Quality Status in the Impoundments 546-547 12.2.3 Water Quality Status in the Lower Deschutes River 547-548 12.3 Historical Changes in Water Quality 548-550 12.3.1 Water Quality Changes in the Major Tributaries 548-549 12.3.2 Water Quality Changes in the Reservoirs 549-550 12.2.3 Water Quality Changes in the Lower Deschutes River 550 12.4 Model Development and Calibration of the PRB Reservoirs 550-551 12.5 Model Development and Calibration of the Lower Deschutes River 551-552 12.6 Scenario Analysis 552-553 12.7 Recommendations 553-556 12.7.1 Nutrient Reduction 553-554 12.7.2 Operational Considerations 554-555 12.7.3 Research Considerations 555-556 5 Glossary of Terms Definitions provided here reflect the usage within the Water Quality Study. Attractant Flow Artificial currents that mimic the natural downstream movement of water, thereby attracting fish to a specific area and enabling their collection. Benthic Relating to or occurring in the lowest depths in a body of water. Benthic organisms reside in, on, or just above the river/reservoir substrate. CE -QUAL -W2 A two-dimensional hydrodynamic water quality model used to generate simulations for the impoundments. Cladocerans Small, freshwater crustaceans sometimes referred to as "water fleas." Conductivity A measure of water's ability to conduct electricity. Used in this study as a conservative tracer to identify water from distinct sources. Conservative Conservative water quality parameters remain constant; they do not change as water flows downstream. Cyanobacteria Aquatic, photosynthetic bacteria, also known as blue-green algae. Diatoms A major group of aquatic, single -celled algae which produce silica cell walls. Diel Relating to a 24-hour period; involving regular cycles that include both day and night. Epilimnion The uppermost layer of water in a reservoir or lake. Eukaryote An organism whose cells contain genetic material housed within a distinct nucleus. Eutrophic Overly rich in nutrients, causing abundant plant growth followed by decomposition, leading to oxygen depletion. Forebay The portion of a reservoir immediately upstream of a dam. Frustule The hard silica wall of a diatom. Hypolimnion The deepest layer of water in a reservoir or lake. Impoundment A body of water confined within an area; a reservoir. Labile Susceptible to change or alteration. Lysis The breakdown of a cell membrane, causing cell disintegration. Metalimnion The middle layer of water in a reservoir or lake, also known as the thermocline, where temperature decreases rapidly with depth. Morphometry The measurement or study of stream shape, including the river's channel, slope, depth and width. 6 Nitrogen Fixation The chemical process that converts atmospheric nitrogen into organic compounds, especially by some microorganisms. Nonpoint Source A source of pollution that is widely distributed; emanating from a diffuse, nonspecific area. Peaking Generation Power generation facilitates that typically only run when demand for electricity is high. Periphyton Algae, cyanobacteria and other freshwater organisms attached to underwater surfaces, such as river rocks. Phytoplankton Microscopic algae, forming the base of the aquatic food web. Point -source A specific, identifiable source of pollution. Productive Having a high rate of generation of biomass in an ecosystem. Prokaryote A cellular organism that lacks a nucleus or any other specialized organelles. QUAL2Kw A one-dimensional water quality model used to forecast changes in the Lower Deschutes River. Rotifers Microscopic aquatic animals common in freshwater. Seston Organic and non-organic particles suspended in the water column, as opposed to attached material (periphyton). Smolt A young salmon or trout about two years old, when it begins its migration to the ocean. Sonde An underwater probe used for gathering water quality information. Stability The level of energy required to mix water of different temperatures within the water column, measured as relative thermal resistance (RTR). Thalweg The line of lowest elevation along the course of a valley or river. Thermocline Also known as the metalimnion; an area in the water column that separates warmer surface waters from colder deep waters. Tributary A stream that flows into a larger river or lake. Trophic Relating to nutrition or the availability of nutrients. Turbidity The level of cloudiness in water, typically caused by sediment. Water Age The amount of time that has elapsed since a water molecule entered an impoundment. Zooplankton Small aquatic organisms; typically microscopic. 7 Additional Resources • Deschutes water quality webpaqe Download the study and the raw data, read our answers to common questions, find additional resources. • Water Quality Study frequently asked questions Answers to common questions about the Water Quality Study, its design, results and our next steps. • Water Quality Study open houses Attend one of our informational open houses in Central Oregon (July 17), Portland (July 23) or Maupin (date TBA). • Information on water quality parameters Learn more about pH, temperature, algae, dissolved oxygen, conductivity, turbidity, nutrient composition and more. These resources explain what these water quality parameters measure and why they matter. o Fondriest Environmental Learning Center: www.fondriest.com/envrionmental-measurements/parameters/water-quality/ o Missouri Department of Natural Resources: https://dnr.mo.qov/env/esp/waterquality-parameters.htm • Contact Us Have a question that isn't answered in our other materials? Please send an email to: deschutes.passage(cr)pgn.com. 8 CONFEDERATED TRIBES:,OF.'.: WARM SPRINGS X965 The Deschutes River system is an Oregon icon, treasured for its scenic beauty, the life-giving water it brings to the high desert, and its world-class salmon, steelhead and trout fisheries. But the river and its tributaries are more than that: they're sacred to the people of the Confederated Tribes of Warm Springs and an integral part of the culture and economy of the region. As co-owners of the Pelton Round Butte Hydroelectric Project, Portland General Electric and the Confederated Tribes of Warm Springs pay close attention to the health of the river. We know that apparent changes to the Deschutes — some good, some troubling — have raised questions among river users in the region, so we want to share what we know about what's happening on the Deschutes. This pamphlet addresses some of the concerns and misconceptions we've heard. The information is based on robust and high quality scientific studies. YOU can find more at portlandgeneral.com/deschutes. We also welcome questions at deschutes.passage@pgn.com or 541-325-0960. Management The plain fact is... The Deschutes River is in The Deschutes River is not in decline. a state of rapid decline. ® River temperatures have returned to their historic, seasonal patterns. ® Fall Chinook are migrating and returning more successfully than any time since the 1960s. ® Redband trout populations and their insect food sources remain robust. ® The latest Oregon Department of Fish and Wildlife angler surveys — from 2018 and previous years — have shown excellent catch rates. ® There have been some changes on the Deschutes — some driven by our project, others driven by external factors like climate change and agriculture — but we are confident that we're making progress toward our shared long-term goals for river health and fish recovery. PGE and the Tribes are acting on their own, making changes to the Deschutes River. The plain fact is... PGE and the Tribes simply can't — and don't — do that. The Pelton Round Butte Project is co -owned and co -managed by PGE and the Confederated Tribes of Warm Springs. We operate under the direction of multiple agencies and within the parameters of our license. Management decisions are built on collaboration, sound science and comprehensive regulation. ® The Pelton Round Butte Project is regulated by the Federal Energy Regulatory Commission (FERC), the Oregon Department of Environmental Quality (DEQ), the Warm Springs Water Control Board (WCB), U.S. Fish and Wildlife Service (USFWS), the Warm Springs Branch of Natural Resources, the National Oceanic and Atmospheric Administration (NOAA Fisheries) and Oregon Department of Fish and Wildlife (ODFW). These agencies review, approve and help inform the project co-owners' management decisions. ® Representatives from state, federal and tribal agencies and local conservation organizations come together to form the Fish Committee, a collaborative group that provides consultation and guidance and participates in all project management decisions that affect fish. 3 With support from the Pelton Round Butte Fund, the Upper Deschutes Watershed Council restored this stretch of floodplain along Whychus Creek in 2014. The restoration included dam removal, large wood installation, native planting and rechannelization to improve the area for water quality, fish and wildlife. PGE and the Tribes should do more to improve the Deschutes basin. The plain fact is... Although PGE is a utility, not a public management agency, we are deeply invested in the health of the entire Deschutes basin. ® PGE and the Tribes contribute significantly to habitat restoration efforts throughout the Deschutes watershed through the Pelton Round Butte Fund. We've supported more than 45 projects to date, with 13 million awarded so far. We are on track to award a total of $21 million by 2020. O We have earmarked $10 million for projects that improve water quantity and quality. ® PGE does not have power or jurisdiction beyond the areas described in our license, so we collaborate with the Tribes and with dozens of agencies and non-governmental organizations to advance initiatives throughout the basin that complement our work at the Pelton Round Butte Project. It's time to "turn back the clock" to earlier river conditions that favored certain fish. The plain fact is... The Selective Water Withdrawal facility was put in place to solve two serious problems in the Deschutes basin: historic fish runs had been cut off for decades and seasonal river temperatures were being artificially disrupted. This was harmful to the river's natural ecosystem as well as the Tribes' heritage and culture. ® Like any living organism, the river has also evolved over time. To simply say "return it to what it was" ignores the effects of weather, climate change, river adaptation and other developments in the region. ® Our adaptive management process takes these changes into account, constantly adjusting as we perform studies and learn more. ® Abandoning our long-term, science -based strategy in the face of short- term fears would be a mistake. We continue to build on what we've learned over the years and make thoughtful decisions while keeping the health of the whole river basin in mind. ® We seek solutions and results that will benefit the overall health of the river for fish, the Tribes and all Oregonians, including anglers, for generations to come. PGE and the Tribes should simply "flip the switch" and stop using the Selective Water Withdrawal system. The plain fact is... Some Deschutes users have expressed nostalgia for the river's condition from 1964 to 2009, but these temperatures damaged native fish populations that had adapted to the river's natural rhythms. Instead of replicating these harmful temperatures, we use the SWW to create a water blend that more closely matches seasonal patterns we'd expect to see without the dams' presence. ® "Turning off" the SWW might sound like an easy way to address one concern, but it would resurface the original problems caused by dam construction in the 1960s: a lack of connectivity for migrating fish and unnatural temperatures. ® Before the SWW was built, juvenile fish development was stunted by artificially extended periods of cold temperature in the spring and early summer. These fish were smaller in size when migrating to the ocean, lowering their odds of survival. ® PGE and the Tribes cannot simply decide to "turn off" the SWW. The regulatory authorities who govern how we operate, including USFWS, NOAA Fisheries, DEQ and the WCB, mandate SWW operations in their requirements. 5 The reintroduction effort on the Deschutes is taking too long, and changes are implemented too slowly. The plain fact is... While the measured pace of high-quality science can be frustrating at times, we are more confident in our decisions because we know they are informed by accurate data and a thorough review process. ® Our biologists monitor multiple sites and collect data year-round to help us understand river conditions and how several variables affect water quality and fish survival over time. ® Together with the Fish Committee and our regulators, we evaluate our progress and make thoughtful course corrections when the science supports them. ® For example, we now generate power at night during peak fish migration to attract salmon and steelhead to the SWW with greater efficiency. We have also begun releasing juvenile fish at night so they are less vulnerable to predators. These changes have shown positive results, and we hope to see more over time. ® Patience is essential when making and evaluating our decisions because anadromous fish life cycles last four to eight years. Consequently, it may take several years for us to see the results of our most recent management changes. 6 Fish reintroduction programs are often long-term efforts. Restoring Okanagan sockeye in British Columbia took several decades of persistent, collaborative work by tribes, federal agencies, local businesses and nonprofits. The lengthy project was well worth the results, restoring fish populations from near -extinction to harvestable numbers. PGE and the Tribes constructed the SWW to increase revenue. The plain fact is... The SWW's only function is to correct issues with water temperature and fish passage, neither of which increase the amount of electricity produced by the project or the revenue it generates. • Construction of the tower in 2009 was required as part of our relicensing process. • Operations at the SWW (including temperature blends, spill regimes, river and reservoir levels) are dictated by our license. Flow adjustments, in particular, are subject to strict limits under our license from FERC. When required, adjustments are determined based on weather, river flows and overall environmental benefit. Changing SWW operations has no effect on our energy output or revenue. • In fact, some aspects of project operations, such as generating energy at night to aid juvenile fish migration, can reduce PGE's and the Tribes' potential revenue. • The tower itself cost $110 million to build, and PGE and the Tribes continue to spend more than $2 million a year on Deschutes salmon reintroduction efforts. We firmly believe that the high cost of environmental responsibility is worth it. PGE and the Tribes hide information from the public. The plain fact is... PGE and the Tribes are committed to transparency. Our studies, reports, fish counts and more are available to the public. • Every summer, we host a fisheries workshop that is free and open to the public. Visit our website for the latest announcements about this event, and for more information about our reintroduction efforts: portlandgeneral.com/deschutes. • We post announcements and featured studies on our "Updates and Events" page. You can also find fact sheets and reports about our research online. • Our monthly e -newsletter features the latest fish counts, news and information. Subscribe by sending an email to deschutes.passage@pgn.com with the subject line "subscribe." • Join our environmental community on Facebook for an inside look at our work on the river: facebook.com/groups/EnviroCommunityPGE • For additional questions, contact us at: deschutes.passage(c>pgn.com or 541-325-0960. 7 Water quality The plain fact is... PGE and the Tribes are PGE and the Tribes are dedicated to improving water ignoring water quality quality and enabling effective fish passage. Furthering concerns on the Lower these two objectives is challenging and there is no Deschutes. "silver bullet" solution. We are committed to making informed management decisions that optimize water quality and fish passage outcomes in this complex ecosystem. To learn more about how the river is changing, we recently conducted a comprehensive, multiyear water quality study, which will be finalized and released in 2019. The findings will help PGE and the Tribes, together with our partners and regulators, continue to make informed decisions and refine our fisheries and water quality initiatives. Information from outside sources shows that the Deschutes is in trouble. The plain fact is... Anecdotal reports and outside "studies" claiming to prove the river is in trouble typically have not gone through a rigorous, independent review process. Scientifically sound studies are reviewed by other independent scientists to ensure their integrity. PGE, the Tribes, ODFW and other partner agencies routinely submit their work for this kind of scrutiny. Most rigorous studies show that the Deschutes, like other Oregon rivers, is changing but continues to support a healthy ecosystem. • PGE and the Tribes follow the science and operate with a high level of scrutiny and oversight. ® Our study designs are reviewed by the Fish Committee through a formal, recorded process prior to implementation. This transparent approach also extends to our water quality monitoring program. ® All of our completed studies and reviewer comments are publicly available on our website: portlandgeneral.com/deschutes PGE and the Tribes don't care about the Lower Deschutes River. The plain fact is... Fish need the whole river. Our long-term goals for sustainable, harvestable fish runs in the Deschutes basin can only be achieved by investing in the ecosystem both above and below the dams. Fish require favorable conditions in the lower river if they are to return safely to the Upper Deschutes. • One example of our work below the project is Trout Creek — an historic homestead site on the lower river restored for the benefit of fish and wildlife. To improve spawning habitat, we planted native trees and restored the natural stream channel and floodplain. Summer steelhead were detected spawning in the area the year following construction. • We believe that our efforts throughout the Deschutes basin will ultimately increase the availability of fish for communities along the entire river, both above and below the project. PGE staff members collect extensive data at several sites along the Lower Deschutes, the reservoirs and their main tributaries as part of the multiyear water quality study. We anticipate the study's release in 2019. 9 Fish and wildlife Fish on the Deschutes are in trouble. The plain fact is... While there is still a long way to go, Deschutes basin fish are showing promising signs of recovery. • Each year we collect between 45,000 and 450,000 smolts (juvenile fish) at the SWW. Changes to hatchery practices and operations have improved our ability to capture these smolts. In 2017 and 2018, we collected a higher percentage of migrating fish than ever before, allowing us to pass the juvenile fish downstream to continue their natural migration. As we adapt our strategies to the latest data, we expect these numbers to continue rising over time, although we know external factors like snow pack will cause natural variability from year to year. ® Chinook, sockeye and steelhead now have access to 250 miles of their historic habitat that were blocked for nearly 50 years. We are excited to see adult fish returning from the ocean and completing their natural life cycles upstream of the dams. We have located spawning fish near Bowman Dam on the Crooked River, in Whychus Creek at Camp Polk and upstream of Camp Sherman on the Metolius River. ® In 2016, more than 500 adult sockeye returned to the basin after migrating through the SWW as juveniles. Apart from this exceptional year, we acknowledge that adult return rates have been low. We believe several management strategies implemented in 2017 will have real potential to improve returns. We expect to see the benefits of these changes when these fish start returning, which could be as soon as in 2019. ® While we are proud of our achievements and optimistic about the future, we also recognize that Deschutes fish are affected by external factors beyond PGE's control. Weather, climate change and conditions in the Columbia River and Pacific Ocean all contribute to the success or decline of Deschutes fish runs in any given year and over time. In 2016, 535 adult sockeye returned to the Pelton Round Butte Project after migrating through the SWW as juveniles. Toxic conditions in Lake Billy Chinook are negatively affecting fish migration. The plain fact is... Lake Billy Chinook supports thriving populations of juvenile and adult fish from several species. ® The reservoir supports a healthy population of resident kokanee and one of the strongest populations of bull trout in the nation. It is one of the only locations where anglers can catch and keep bull trout, which are listed as threatened under the Endangered Species Act. ® High summer pH levels in the reservoir are not keeping fish from entering the juvenile migrant collection system at the SWW. Our monitoring shows no indication that migrating fish change their behavior as pH levels increase through the spring. Additionally, most of the out -migrating juvenile salmon have already left the reservoir by the time pH rises in the summer. • Adult fish released into Lake Billy Chinook successfully navigate the reservoir and return to various tributaries to spawn. 11 Lake Billy Chinook supports a healthy population of Bull Trout — a species whose populations are vulnerable in other parts of Oregon and the United States. Since the changes to the system, "black spot" has appeared in Deschutes River fish. The plain fact is... Black spot disease is a parasitic infestation found in freshwater fish across the United States and Canada. It has been documented in many Oregon rivers for years, including the Metolius, the John Day and the Deschutes (upstream and downstream of the dams). • Black spot is caused by trematodes that involve three host species: snails, fish and birds. ® The parasite has not been found to affect the survival of fish. ® Fish with this condition are safe for human consumption. • Black spot appears to be on the rise throughout Oregon, not just in the Deschutes. Steelhead in the Deschutes River are in trouble. The plain fact is... Much of the change in steelhead returns can be traced to hatchery operations and poor conditions in the Columbia River and Pacific Ocean — not changes implemented by PGE and the Tribes on the Deschutes. • The size of the Deschutes summer steelhead run is highly variable, as it is in all Oregon rivers. • Run sizes are often influenced by ocean conditions in addition to freshwater conditions. • In recent years, there has been a reduction in out -of -basin stray steelhead entering the Deschutes due to changes in hatchery practices in other basins. Native Deschutes steelhead are about six pounds on average — smaller than the out -of -basin strays that sport fishermen may have enjoyed catching in the past. The fact that fewer of these strays are showing up in the Deschutes is good for our native population of wild, Deschutes River steelhead, which are more likely to thrive without the influence of hatchery fish. The Lower Deschutes River is turning into a "smallmouth bass pond." The plain fact is... Smallmouth bass have been documented in the Lower Deschutes since 1996 — well before the SWW system. However, their populations do appear to be increasing. ® ODFW is keeping a close eye on smallmouth bass. The agency has determined that there is no evidence of successful spawning by smallmouth bass in the Deschutes River; they appear to drop hack into the Columbia River in the winter. 13 The insects that redband trout depend upon are in decline. The plain fact is... The timing of the salmon fly hatch in the Lower Deschutes River has shifted — this was an expected outcome of the change in temperature patterns caused by the SWW — but evidence suggests that the size of the hatch is still strong. ® This hatch occurs approximately two weeks earlier now in response to warmer spring water temperatures. The hatch continues to support an impressive trout fishery, as measured by ODFW every year since 2015. ® ODFW electrofishing surveys in 2017 and 2018 indicate that the abundance, growth, diet and condition of redband trout is comparable to pre- SWW samples. Birds, bats and other mammals living near the Deschutes are in decline. The plain fact is... There is currently no scientific data suggesting a decline in bird, bat or other mammal populations on the Deschutes. ® PGE and the Tribes do not perform large-scale wildlife surveys in the greater Deschutes basin, but we do monitor eagles, waterfowl and hats within our project areas and deer on the Warm Springs reservation. These surveys indicate healthy populations, and our biologists frequently encounter wildlife out on the river. ® Birds that live in the Deschutes basin are migratory and have complex life histories. It would be unlikely for any decline in bird population to he directly related to dam operations. ® Aside from monitoring one colony that roosts within our project area, we do not know much at this time about bat populations local to the Deschutes. Bat numbers are in decline regionally, however, due to causes unrelated to the project. ® Overall, surveys suggest that the Deschutes is a highly productive river, supporting healthy populations of insects and fish. PGE biologists track golden eagles near the Pelton Round Butte Project to learn more about how the birds use habitat in the area. (Photo by Rick Gerhardt) 15 CONFEDERATED TRIBES OF WARM SPRINGS 1855 Visit portlandgeneral.com/deschutes for more information. We welcome questions at deschutes.passage@pgn com and 541-325-0960. Pelton Round Butte Fish Committee 1 Restoring salmon and steelhead in the Deschutes. Page 1 of 5 Reading the Data View the Data Reading the Data iew t e ata Restoring salmon and steelhead in the Deschutes. https://prbfishcommittee.com/ 10/17/2019 Pelton Round Butte Fish Committee 1 Restoring salmon and steelhead in the Deschutes. Page 2 of 5 Reviewing the road map data on this site The reintroduction road map is a high level guide to strategies current and future, to impact the goal of returning self-sustaining and harvestable runs of spring Chinook, sockeye and summer steeHead to the Upper Deschutes Basin. Learn more about the history and purpose of our work in the Executive Summary. The road map is organized Dy objectives with each strategy represented by a shape that, indicates who is recprInsihlr, and a color to illustrate whether strategies are current or planned Pelton Round Butte Fish Committee Reintroduction Road Map GOAL: SELF-SUSTAINING AND HARVESTABLE RUNS OF CHINOOK, SOCKEYE, AND STEELHEAD https://prbfishcommittee.com/ 10/17/2019 Pelton Round Butte Fish Committee 1Restoring salmon and steelhead in the Deschutes. Page 3 of 5 0 JECTWE 1: improve SWW Capture Efficiency ibjective 1: Improve SWW C OBJECTIVE 2: Increase Adult Returns :ure Efficiency A Install SWW guidance net Modify Round Butte operations OBJECTIVE 3: increase Natural Production https://prbfishcommittee.com/ 10/17/2019 Pelton Round Butte Fish Committee 1Restoring salmon and steelhead in the Deschutes. Page 4 of 5 j Reduce handling stress at the selective water withdrawal (SWW) M Incorporate wild fish into broodstock broodstock into spawning habitat Q Direct release of https://prbfishcommittee.com/ 10/17/2019 Pelton Round Butte Fish Committee 1 Restoring salmon and steelhead in the Deschutes. Page 5 of 5 Legend Present Et Future Under consideration For future consideration Basin -wide cooperative effort Co -manager led strategy Licensee led strategy © 2019 Pelton Round Butte Fish Committee. All rights reserved. Website Design by Shop. https://prbfishcommittee.com/ 10/17/2019 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 BOCC Monday Meeting of October 21, 2019 DATE: October 7, 2019 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: Pac/West: Legislative Session Planning BACKGROUND AND POLICY IMPLICATIONS: Phil Scheuers, Pac/West, will attend to discuss the upcoming legislative session and planning for the development and tracking of County legislative priorities. FISCAL IMPLICATIONS: None. ATTENDANCE: Phil Scheuers, PadWest 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 BOCC Monday Meeting of October 21, 2019 DATE: October 15, 2019 FROM: Ed Keith, Natural Resources - Forestry, 541-322-7117 TITLE OF AGENDA ITEM: Natural Resource Protection FTE Increase and Consideration of Budget Adjustment RECOMMENDATION & ACTION REQUESTED: Review the position description as currently drafted, including the job classification and provide any revisions or additions to staff. If there are no changes, staff recommends approval of Resolution 2019-050 appropriating funds and increasing FTE in the Natural Resources Fund by 1.0 FTE. BACKGROUND AND POLICY IMPLICATIONS: Following a program review with the Project Wildfire Steering Committee the Board of County Commissioners (Board) discussed and directed the creation of a new full time position in the Natural Resources Department to expand fire preparedness outreach and activities, facilitate and support new and existing Firewise USATM sites, maintain and enhance FireFree events and provide staffing to Project Wildfire. These duties are currently contracted out. This request is to convert the duties currently supported by a contractor to an employee position and provide additional support through a full time position. A draft Fire Adapted Communities Coordinator job description is attached. In addition, the Board has budgeted $50,000 in lottery funds for community fuel reduction projects. The resolution includes transfer of those funds to Natural Resources. Once funds are transferred we will begin to solicit project proposals and administer those projects through the Natural Resources department, reporting back to the Board on accomplishments following project implementation. FISCAL IMPLICATIONS: The total cost of the new position for the remainder of the year would be an estimated $56,000. The total cost of the community fuel reduction projects is estimated to be $50,000. ATTENDANCE: Ed Keith, County Forester REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON A Resolution Appropriating New Inter -fund Grant Funds And increasing FTE within the * RESOLUTION NO. 2019-050 Deschutes County 2019-2020 Budget * WHEREAS, a request for additional appropriation in the Program Budget for the Natural Resources Protection Fund an additional regular 1.00 FTE Fire Adapted Communities Coordinator, and related appropriation for the remainder of the 2019-2020 budget; and WHEREAS, Deschutes County Classification of Positions Policy (HR -1) requires that the creation/increase of a Department's FTE outside of the adopted budget must be approved by the Board of Commissioners; and WHEREAS it is necessary to transfer appropriation from Contingency to the Program Budget to accommodate the request; and WHEREAS, Natural Resources Protection (Fund 326) will receive new inter -fund grant revenue from Video Lottery (Fund 165) totaling $50,000; and WHEREAS, these new inter -fund grant funds need to be appropriated; and WHEREAS, ORS 294.326(2) allows the appropriation and expenditures of new grant funds designated to specific purposes; now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, as follows: Section 1. That the following inter -fund grant be budgeted: Revenue Natural Resource Protection Inter -Fund Grant TOTAL REVENUE: PAGE 1 OF 2 -RESOLUTION NO. 2019-050 (10/23/19) $ 50,000 $ 50,000 Section 2. That the following appropriations be made within the 2019-2020 County Budget: Appropriation Natural Resource Protection Program Budget Contingency TOTAL APPROPRIATION $ 106,000 ($ 56,000) 50,000 Section 3. That the Chief Financial Officer make the appropriate entries in the Deschutes County Financial System to show the above appropriations. Section 4. That the following FTE be added: Job Class Limited Duration or Regular If Limited Duration, Expiration Dates FTE Fire Adapted Communities Coordinator Regular 1.00 TOTAL FTE 1.00 Section 4a. That the Human Resources Director make the appropriate entries in the Deschutes County FTE Authorized Positions Roster to show the above FTE changes. DATED this day of , 2019. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON PHILIP G. HENDERSON, Chair ATTEST: PATTI ADAIR, Vice -Chair Recording Secretary ANTHONY DEBONE, Commissioner PAGE 2 OF 2 -RESOLUTION NO. 2019-050 (10/23/19) FINANCE Complete Cells B13 -B23 If projecting for an existing employee, enter the most recent anniversary date If FTE is less than 1.00, select High Deductible plan in cell B20; if less than .50, leave B20 blank PARALEGAL -N413 0 0-I N N 6/30/2020 0% 2000 -HEALTH INSURANCE -STANDARD 7020 - OPSRP GENERAL SERVICE 1.00 0 H 01 13 Beginning Step Start Date/Last Anniversary Date End Date Lead or Incentive % (e.g. 5% Lead Pay) longevity or Other Pay (Hat Amt per Month) Cell Phone Allowance Health Insurance PERS FTE OT Hours (enter annual estimate) N N 00 ti 00 NJ 0 N Cr 0.-+0 m .-4 'O ,0 .-1 N 00 C' N 0 t0 M .-1 N 4A N 4A N • 4A N 4? N N aA N N 000 N 4/F 4A w 1.6% COLA annually 00 i Total Pay & Benefits $ m 00 a 00 021 Lei 00 a 0 O PERS Rates Assum 20°1102 20 M m m Ns N D n 01 N m M m ti • O 20 n 00▪ 000000 N • 0 ti m N N 00000000 000°0°01 00 M 001 0 • 00 q' 00 N N M N aa°a°a N ti N. 02 00 m 00 N N M N 00 a 00 00 01 10 0 b N 00 N. m 2, 00 • N M N 00 o0000 00 • n 00 H N M N a° a° a1 a: W M W b M W 00 00 U_ W ytj W W C ▪ U' C ▪ W 4.1 02 A - • 4Y W C9 0 a O . W a a CC 0 0 ti 0 el: a 0 O 0 0 0 N M C' 01 0000 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 BOCC Monday Meeting of October 21, 2019 DATE: October 14, 2019 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: Consideration of Board Signature of Order No. 2019-044, Extending Resolution of Intent to Rezone Resolution No. 2009-035 RECOMMENDATION & ACTION REQUESTED: Consider signature of this extension order. BACKGROUND AND POLICY IMPLICATIONS: On April 9, 2009, the Board of County Commissioners resolved to rezone the western portion of the Lower Bridge Mine, as identified by Exhibits A and B, from Surface Mining to Rural Residential upon the fulfillment of the ten conditions listed in Resolution 2009-035. Conditions specified the Resolution of Intent to Rezone would expire in five years unless extended. Deschutes County Code ("DCC") 18.136.030(B) allows the extension of a Resolution of Intent to Rezone, subject only to Board approval. FISCAL IMPLICATIONS: none ATTENDANCE: Will Groves, Legal MEMORANDUM UNIFY D'EVELOI II Date: October 11, 2019 To: Board of County Commissioners ("Board") From: Will Groves, Senior Planner Re: Consideration and Signature of Order No. 2019-044, Extending Resolution of Intent to Rezone 2009-035. 1. Background On April 9, 2009, the Board of County Commissioners resolved to rezone the western portion of the Lower Bridge Mine, as identified by Exhibits A and B, from Surface Mining to Rural Residential upon the fulfillment of the ten conditions listed in Resolution 2009-035. Condition #7 specified the Resolution of Intent to Rezone would expire in five years unless extended. Deschutes County Code ("nrr") 18.136.030(B) allows the extension of a Recnlu itinn of Intent to Rezone, subject only to Board approval. Lower Bridge Road, LLC, received extensions of the resolution under File No. E-14-6 to April 9, 2015 and, under Order No. 2015-027 to October 26, 2017, and under Order No. 2017-043 to October 26, 2019. The applicant has requested another one-year extension. Two conditions of resolution of intent to rezone are not yet met: 1. Within five (5) years of the date the decision in Exhibit C is final or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Environmental Quality ("DEQ") a "No Further Action"("NFA") determination or the equivalent for a residential use designation for this 410 acre area. 2. Within (5) five years of the date the decision in Exhibit C is final or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Human Services a determination of "no apparent public health hazard" for a residential use designation for this 410 acre area. In the submitted materials, the applicant states: 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 t (541) 388-6575 d@deschutes.org wwVeschutes.org/cd The applicant has been working on a plan to shift this property from an obsolete mining zone to a subsequent viable use zone for the past 13 years. As a part of this effort, the applicant has invested significant time and resources (over $2 million dollars) to cleanup the property and make it suitable for a subsequent use to the prior mining operations. Both DEQ and OHA have issued the requisite environmental compliance letters for the east side property. As a part of verifying if the east side is safe for residential use, many soil and water quality studies were performed on both the east and west sides. Since that time, the Applicant has continued the clean-up efforts on the West side through the Voluntary Clean - Up (VCP) program administered by DEQ. This effort has been led by the Wallace Group and a Progress Report detailing the remaining work (See applicant's as Exhibit 9). The applicant expects to be able to complete the clean-up process and obtain the no further action letters within the time period of the requested extension. 11. Staff Analysis A Resolution of Intent to Rezone is an agreement to rezone property once certain objective conditions are met. It was chosen by the Board in 2009, rather than an immediate rezone, because environmental investigations of the site were not complete at that time. The applicant continues to make progress toward meeting the resolution of intent to rezone conditions. Board signature of an extension order would provide additional time for the applicant to meet the conditions of the Resolution. If the Board declines the extension, the applicant would have to reapply for the plan amendment and zone change. Staff notes that the effort, time, and cost for reapplication would be significant. Reasons to decline the extension would be: 1) It would provide the Board and public with an opportunity to revisit the original decision. 2) Although this extension is not subject to DCC 22.36.030(C), any other application would only be eligible for 3 years of extensions. Extensions (and approvals) intentionally do not have unlimited durations to specifically allow reevaluation of old approvals in the face of changing legal and factual circumstances. However, staff is unaware of any change in the legal and factual circumstances of the original approval that would recommend reevaluation of that approval. 111. Board Options Staff has included an order similar to the 2017 extension to extend the resolution of intent to rezone to October 26, 2020. The Board could choose to sign or decline to sign this order. Any such order would be noticed to surrounding properties and to the parties of the original rezone application. Alternatively, the Board could direct staff to schedule a noticed public hearing to provide an opportunity for applicant and public testimony on this matter. 2 Attachments: 1. 2019-10-14 Board Order No. 2019-044 - Lower Bridge Extension Staff Memo 2. 2019-10-14 Board Order No. 2019-044 - Extension of Resolution of Intent to Rezone 3. 2019-10-14 Lower Bridge Extension BOCC Work Session PowerPoint 4. 2019-07-27 Application Materials 5. 2019-07-27 Application Materials - Exhibit List 6. 2019-07-27 Application Materials - Exhibit 1 7. 2019-07-27 Application Materials - Exhibit 2 8. 2019-07-27 Application Materials - Exhibit 3 9. 2019-07-27 Application Materials - Exhibit 4 10.2019-07-27 Application Materials - Exhibit 5 11.2019-07-27 Application Materials - Exhibit 6 12.2019-07-27 Application Materials - Exhibit 7 13. 2019-07-27 Application Materials - Exhibit 8 14. 2019-07-27 Application Materials - Exhibit 9 3 Executive Summary 2008 Board agreed to rezone a mining property to residential use 0 0 0 411 0 4.1 VIOEM 0 co 11) . ISVPM U Gj O a Prior Boards have granted 51/2 years of extensions Applicant has requested one more year Needed to finish environmental cleanup and documentation Six miles west of Terrebonne Adjacent to Deschutes River Approximately 550 acres .0 1 0 L u Diatomite Mining 0 MS 40) LEO 0 MN 46J in tri 0 MO X 9 MEM TO Les C VI C 0 VI LW . Background - 1961 - 2006 Mixed Mining ee� ro o ealE 4.-0 3.3 c E s roco c ® e 1980-2006 DOGAMI 0 0 IN 0 Etat Waste Storage- 1974 - 1985 Hazardous/Radioactive Waste ease mr; 0 . 4.72 . 0 . bA G1 C V .— ro 161, 0 W 00 0 0 1 r4 0 a Q. Q w 0 N N G' Board Approves Rezone Gravel resource exhausted Rural Residential Zone Environmental Concerns w L. a) tan ® w o M Resolution of Intent to Rezone c A binding agreement to Rezone to RR10 0 conditions to be met 5 -year time frame 0 C wW Timely extensions 51/2 years of extensions One additional year requested to finish environmental work 0 cuW No applicable criteria Decision at the Board's discretion Reasons to Deny Opportunity to revisit the original rezone ra 0 VI WSW0. NW Reasons to Approve Applicant continues to make progress 0) 4.1 OJ ra w . QJ 0 ea 0 IMS . tto 0 c IN A MATTER BEFORE THE COUNTY OF DESCHUTES COMMUNITY DEVELOPMENT DEPARTMENT Lower Bridge Road, LLC ) ) ) Applicant. ) ) OWNER: BURDEN OF PROOF FOR EXTENSION OF A LAND USE APPROVAL Lower Bridge Road, LLC 205 E. 11th Street, Suite 200 Vancouver, WA 98660 ATTORNEY/ PLANNER: Schwabe, Williamson & Wyatt Tia M. Lewis, Attorney 360 SW Bond Street, Ste 400 Bend, OR 97702 (541)749-4044 REQUEST: Applicant requests approval to extend land use approval for Board of County Commissioner's Resolution of Intent to Rezone 2009-035 APPLICABLE STANDARDS AND CRITERIA: Deschutes County Code, Chapter 18.136. Amendments Section 18.136.030, Resolution of Intent to Rezone PDX\ 116094\ 150752\C WH\25709470.1 File No. 247 - COMMUNITY DEVELOPMENT APPLICATION FOR EXTENSION OFA LAND USE PERMIT Applicant's Name (print): Lower Bridge Road, LLC FEE: $176 Phone:( ) Mailing Address: 205 E 1 Ith Street, Suite 200 City/State/Zip: Vancouver, WA 98660 Property Owner's Name (if different)*: Phone: ( ) Mailing Address: City/State/Zip: Nature of Application: Extension of Resolution of Intent to Rezone 2009-035 Property Description: Township 14 Range 12 Section Tax Lot 1501, 1502, and 1600 Deschutes County Application Number: ZC-08-1 and PA -08-1 Date of Approval: 04/08/2009 Permit Expiration Date: 10126/7019 Property Zone: On the reverse side, or on a separate sheet of paper, please respond to the following: 1. Describe any action that has been taken to fulfill any or all conditions of approval. 2. Describe the reason(s) for not beginning or continuing development or meeting conditions of approval within the approval period. rpora-f-4oxi, RA- arva av- Applicant's Signature % 911.`'? Date: 7 -`?''" € / Property Owner's Signatu e (if different)*: _Date: Agent's Name (if applicable): Tia 1.ewis, Schwabe Williamson & Wyatt Phone: ( 541) 749-4048 Mailing Address: 360 SST Bond Street. Suite 500 City/State/Zip: Bend, OR 97702 *If this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. (over) 11 7 NW Lafayette Avenue, Bend, Oregon 97703 I 0.0 Bax 6005, Bend, OR 97708-5005 (541) 388-6575 @ cdci@dcschutes org ~AA; des( hutes.org/cd Rev 5/18 Please see attached Burden of Proof. (This page may be photocopied if additional space is needed.) 117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005 (541)388-6575 @a cdd@deschutes.org 0 www.deschutes.org/cd TABLE OF CONTENTS SECTION I APPLICATION FORM SECTION II BURDEN OF PROOF STATEMENT SECTION III EXHIBITS PDX11 16094\150752\CW1-1\25709470.1 BURDEN OF PROOF I. GENERAL INFORMATION A. Location: The subject property is located west of Lower Bridge Way in Terrebonne and contains approximately 410 acres. It is identified on Deschutes County Assessor's Map 14-12, tax Tots 1501, 1502 and 1600. (Exhibit 1) B. Zoning: The subject property is zoned surface mining but subject to the Resolution of Intent to Rezone to RR -10, which is the subject of the present extension request. C. Surrounding Uses: The area surrounding the subject property consists of parcels zoned EFU, RR -10 and Flood Plain, with surrounding uses being a mixture of agricultural and rural residential. D. Site Description: The subject property is approximately 410 acres in size and is located west of Lower Bridge Way. It is the former site of a diatomaceous earth mine, portions of which have been reclaimed and portions of which have been planted and maintained with pasture grass to restore the land and prevent airborne dust. 11. BACKGROUND 2009: On April 9, 2009, the Board resolved to rezone the western portion of the Lower Bridge Mine from Surface Mining to RR -10 in Resolution 2009-035 upon the fulfillment of ten conditions (Exhibits 2 and 3). Condition 7 of Resolution 2009-035 specified the Resolution of Intent to Rezone would expire in five years unless extended pursuant to DCC Title 22. 2014: On April 7, 2014, the Planning Division administratively extended resolution 2009-035 for one year, to April 9, 2015 (file number E-14-6, Exhibit 4). 2015: On October 26, 2015, the Board, via Order No. 2015-027, extended the expiration date of Resolution 2009-035 by two years to October 26, 2017 (Exhibit 5). 2017: On October 23, 2017, the Board, via Order No. 2017-043, extended the expiration date of Resolution 2009-035 by two years to October 26, 2019 (Exhibit 6). As stated in the 2017 Order, Deschutes County Code 18.136.030(B) allows the extension of a Resolution of Intent to Rezone by the Board and the code provision does not list any criteria for the extension. 1 BURDEN OF PROOF PDXU 16094\150752\CWH\25709470 1 3. CURRENT REQUEST: The applicant requests a one-year extension to the Resolution of Intent to Rezone issued hereunder and Resolution 2009-035 to the year 2020. The reason for the extension request and conformance with the Deschutes County Code are provided below. 4. REVIEW CRITERIA Conformance with Deschutes County Code, Section 18.136.030, Resolution of Intent to Rezone B. The fulfillment of all conditions, stipulations and limitations contained in the resolution on the part of the applicant shall make such a resolution a binding commitment on the Board of County Commissioners. Upon completion of compliance action by the applicant, the Board shall, by ordinance, effect such rezoning. The failure of the applicant to substantially meet any or all conditions, stipulations or limitations contained in a resolution of intent , including any time limit placed in the resolution, shall render the resolution null and void automatically and without notice, unless an extension is granted by the Board. RESPONSE: On October 23, 2019, the Board, via Order No. 2017-043, extended the expiration date of Resolution 2009-035 by two years to October 26, 2019. The Board found that the rode above allows the Board to extend the Resolution of Intent to Rezone and that the code provision does not list any criteria for the extension as stated in relevant part below: WHEREAS, Deschutes County Code ("DCC') 18.136.030(B) allows the extension of a Resolution of Intent to Rezone by the Board; and WHEREAS, although the above DCC provision does not list any criteria for the extension, the Board has given due consideration as to whether to extend Resolution 2009-035; now therefore, The applicant has been working on a plan to shift this property from an obsolete mining zone to a subsequent viable use zone for the past 13 years. As a part of this effort, the applicant has invested significant time and resources (over $2 million dollars) to clean- up the property and make it suitable for a subsequent use to the prior mining operations. Both DEQ and OHA have issued the requisite environmental compliance letters for the east side property. Exhibits 7 and 8. As a part of verifying if the east side is safe for residential use, many soil and water quality studies were performed on both the east and west sides- Since that time, the Applicant has continued the clean-up efforts on the West side through the Voluntary Clean -Up (VCP) program administered by DEQ. This effort has been led by the Wallace Group and a Progress Report detailing the remaining work is submitted herewith as Exhibit 9. The applicant expects to be able to 2 BURDEN OF PROOF PDX\ 116094\ 1507 52\C W H\25 709470 1 complete the clean-up process and obtain the no further action letters within the time period of the requested extension. 3. CONCLUSION For the reasons set forth herein, the applicant's request for extension of the approval period for the Resolution of Intent to Rezone 2009-035 for an additional one-year extension should be approved. DATED this T 1 day of 2019. Schwabe, Williamson & Wyatt Tia M. Lewis, OSB # 933437 Of Attorneys for Applicant 3 BURDEN OF PROOF PDM 116094\ 1507 52\C W H\25 709470.1 EXHIBITS Exhibit 1 Subject Property Exhibit 2 Decision of the Deschutes County Board of County Commissioners Approving a Comprehensive Plan Text and Map Amendment and Zone Change from Surface Mining to Rural Residential to allow redevelopment of extensively mined site, ZC-08-1 and PA -08-1, dated April 8, 2009 Exhibit 3 Resolution No. 2009-035, A Resolution of Intent to Rezone a Portion of the Property at 70420 NW Lower Bridge Way, Terrebonne from Surface Mine to Rural Residential 10 dated April 8, 2009 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Exhibit 9 Administrative Extension Approval, E-14-6, of Applications PA-08- 1/ZC-08-1 dated April 7, 2014 Board of County Commissioners Order No. 2015-027 Extending Resolution of Intent to Rezone 2009-035 Board of County Commissioners Order No. 2017-043 Extending Resolution of Intent to Rezone 2009-035 "Determination of No Apparent Health Hazard": Letter from Julie Early Sifuentes, M.S., Public Hearing Division, Oregon Health Authority Dated June 30, 2017. "NFA": Letter from David Anderson, Department of Environmental Quality (DEQ), dated August 11, 2017 Progress Report on Environmental Clean -Up 4 BURDEN OF PROOF PDX\116094\ 150752\CWH\25709470 1 Lower Bridge_ est Area Tax Lots 14-12-00-1501, 1502, and 1600 ¢5 s 5o goe,. Esrni 04 1A61$143ze,. C taayx goAijiitiA nok+.S 4fiw.aiki0a,,!at.it: ej 4 t+� Exhibit 1 Page 1 of 1 REVIEWED LEGAL COUNSEL RES No 2oact - 03 S t C_ For Recording Stamp Only DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBERS: ZC-08-1, PA -08-1 LOCATION:. The property is identified on the County Assessor's Tax Map as 14-12, Tax Lots 1501, 1502, 1503, pari of 1505, and 1600. APPLICANT: The Daniels Group, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 OWNER: Norman L. Wiegand, et al. 895 SW 23rd St. Redmond, OR 97756 ATTORNEY /PLANNER: Tia M. Lewis Mark Rust, AICP Schwahe, Williamson & Wyatt, PC 549 SW Mill View Way, Suite 101 Bend, OR 97702 REQUEST: Comprehensive plan text and map amendment and zone change from Surface Mining to Rural Residential to allow redevelopment of extensively mined site. STAFF CONTACT: Will Groves, Senior Planner t. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining 2. Chapter 18.60, Rural Residential zone Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone 3. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards 4. Chapter 18.116.Supplementary Provisions ZC-08-1/PA-08-1 -- BOCC Decision Document No 2009-168 Exhibit 2 Page 1 of 49 Section 18.116.220, Conservation Easements on Property Adjacent to Rivers and Streams Prohibitions. B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions C. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.100, Surface Mining D. Statewide Land Use Goals and Oregon Administrative Rules (OAR) Chapter 660 1. Division 12, Transportation Planning Rule (TPR) * OAR 660-12-0060, Plan and Land Use Regulation Amendments 2. Division 15, Statewide Planning Goals and Guidelines 3. Division 23-0180, Mineral and Aggregate Resources II. FINDINGS OF FACT: A. Location: The property is identified on the County Assessor's tax rnap as 14-12, tax lots 1501, 1502, 1503, part of 1505, and 1600. Tax Lot 1501 has an assigned address of 70420 NW Lower Bridge Way, Terrebonne. B. Zoning and Plan Designation: The site is generally designated "Surface Mining" on the Comprehensive Plan Map, although the exact boundaries are unclear. The mine is included in the county's Goal 5 inventory of significant mineral and aggregate resource sites as Site 461. Tax lot 1501: Tax Lot 1502: Tax Lot 1503: Tax Lot 1505: Tax Lot 1600: 249.1 acres zoned Surface Mining (SM), including 9.8 acres in Landscape Management Combining Zone (LM) 188.1 acres zoned SM, including 82.3 acres zoned LM 64.4 acres zoned SM, including 64.4 acres zoned LM Only 42.1 acres of this 72.47 acre tax lot are subject to this application. The most southerly portion of this lot adjacent to Teater Road and zoned EFU is riot subject to the proposed zone change. 10.6 acres total includes 9.6 acres of Exclusive Farm Use 1.0 acre zoned Flood Plain, 10.6 acres zoned LM, and 10.6 acres zoned SM IA C. Site Description: The 556.9 acre site is a geologically unique tract straddling Lower Bridge Way about 6 miles north of Terrebonne, as shown on the Site Map, submitted as Exhibit 1 and on the aerial photograph, submitted as Exhibit 2. To an observer driving C ii. ?rI%i -08-1 SOCC D c,sion Duc;,';:.,rtl81c 2616 168 Exhibit 2 Page 2 of 49 Lower Bridge Way, the site is notable for the chalky white appearance of the exposed diatomite layers.' As illustrated on the submitted Site Map, the subject property includes Tax Lots 1501, 1502, 1503, 1505, 1600, but excludes the EFU-zoned portion of Tax Lot 1505 bordering Teater Road. There are two areas of the property that are marked by their historical uses and that are separated by the existing Lower Bridge Way. For ease of reference, these areas are referred to as the area East of Lower Bridge Way and the area West of Lower Bridge Way. The subject property can be also divided into five geographic regions based on topography and geology: eastern, northern, Deep Canyon, western, and central. The land includes four general landscape types: quarry operations (old and recent), hills/buttes (natural and formed), plains (unmined, mostly natural vegetation), and canyons and drainages (natural vegetation, unmined). The eastern region includes tax lot 1503 and 1505, is east of Lower Bridge Way, and extends east along a steep slope, descending approximately 100 feet to the Deschutes River. Except for the slope of the river canyon, the eastern region is generally level and covered with overburden rock apparently removed from the former diatomite mining operations. The river is lined with wetlands depicted on the National Wetlands Inventory Cline Falls map. This area had little mining activity and was primarily used for a staging area. The northem region includes tax lots 1501 and 1600, stretches west along the river from LUWCI nD_:Uye 4vcy to Deep Canyon, then south along the southern r of Df3ep Canyon. The ground is relatively level, except for steep canyons that reach down to the Deschutes and Deep Canyon. North of the diatomite mining area is a relatively undisturbed "plains" landscape with mature juniper. The subject property is separated from the river in this area by Tax Lot 14-12 1509, owned by the Oregon Parks and Recreation Department. Deep Canyon is primarily located on tax lot 1501, and is a small canyon with a spring and a seasonal pond that drain to the Deschutes River. Two unimproved roads cross the canyon. Across the northern bridge is the western region, a flat area formerly mined for diatomite. The central region, includes tax lots 1501 and 1502, and is a quarry landscape. This region comprises about half of the subject property. A thick diatomite layer and stockpiles make up much of this area, which is accessible only with an all - terrain vehicle This section of subject property is traversed by several unimproved roads. The area was extensively mined for diatomite, and several derelict buildings, including a former processing building, water tower, pump house, concrete foundations, settling ponds and miscellaneous debris piles remain. The applicant has drilled a well in 'The site has been mined for several materials, including aggregate, sand and diatomaceous earth. Most of the aggregate and sand on the site have been removed, and the area containing those materials have been reclaimed. The diatomaceous earth is described as "a chalky rock, high in amorphous silica content formed from the structures for diatomite) of tiny fresh- or salt -water organisms called diatoms." The applicant argues that the vast majority of the site does not contain agricultural soils and therefore a Goat 3 exception is riot needed The Board agrees 710.08 1IPn•08 'i f.HOCC De ci Sion DGCLJ , , Plc 2009-168 Exhibit 2 Page 3 of 49 this area, and has installed a pivot sprinkler, which is being used to control dust and provide water for irrigation to revegetate the area with native grasses and shrubs. The applicant proposes to remove the remaining derelict structures. This reach of the Deschutes River, which forms the east and northeast boundary of the site, is designated as a Federal Wild and Scenic River and an Oregon Scenic River. A steep bank limits pedestrian access to the river_ However, the river is accessible from Lower Bridge Way, and from the public park near the bridge. D. Soils: Approximately 80% of the soils on the site are defined as Class VII and VIII. Steve Wert, a consulting soil scientist, visited the site and conducted preliminary research of the soils present on the site. His findings are summarized in a letter dated October 4, 2006: "According to NRCS maps, the great majority of the property does not even have a 'soil type,' but is classified as a "land type" called 'Unit 97" which is rock and gravel pits. Unit 97 is rated Class VII and VIII, and NRCS will stand by that rating." However, not all of the property is class VII or Vlll. The following table summarizes soils data by tax lot. /11 ZG-08-1/%'A-08-1 — BOCC: Decision Exhibit 2 Page 4 of 49 Approximate Acreage of Soil Type by Tax Lot Tax Lot NRCS Land / Soil Type Soil Classes Approximate acreage2 Zoning 1501 _ 249.1 acres (central /western) 97 81F 138A 138B 71A 71B 31A 7 & 8 7 & 8 6, not prime 6, not prime 6, prime if irrigated 6, prime if irrigated 6, prime if irrigated 159 acres 24 acres 48 acres 1.1 acres 12.2 acres 1.8 acres 3.3 acres SM, SM1A, LM _ __ 1502 _ 97 7 & 8 160 acres SM, SMIA, 188.1 81F 7 & 8 9 acres LM, FP Acres (central) 138A 6, not prime 19 acres 1503 97 7 & 8 42 acres SM, SMIA, 64.4 31B 6, prime if 18 acres LM, FP, EFU acres 71A irrigated 3.4 acres (eastern) 6, prime if irrigated 1505 97 7 & 8 39 acres SM, SMIA, 41.2 acres (eastern) 81F 7 & 8 2 acres LM, FP 138A 8.2 acres 1600 6, not prime SMIA, FP, 10 6 acres (northern) 81F 7 & 8 2.4 acres EFU TOTAL 7 & 8 79 % = 438 acres 553.4 6, not prime 14% = 76 acres acres 6, prime if irrigated 7% = 39 acres E. Surrounding Zoning and Land Uses: This section describes zoning and land uses within a 2 -mile radius of the center of the subject property Surrounding zoning in the area of the subject property includes Exclusive Farrn Use—Lower Bridge (to the north, west and south), Exclusive Farm Use-Terrebonne (to the east and further to the south), Surface Mining (to the northeast), Rural Residential (to the east and southeast) and Flood Plain associated with the Deschutes River. The Landscape Management combining zone extends along the Deschutes River. The subject property is predominantly surrounded by active agricultural lands, as shown in the 2008 Google Earth aerial photo included in the record The surface mining zoned land to the northeast appears to be in agricultural production Properties to the west and southwest and east are sparsely developed with rural residences. Most of the dwellings in the immediate area have been constructed within the last 25 years. Within a 3 -mile r3ditis there are nearly 700 parcels with over 400 residences. /C 08 1!i 08 1 BOCU Dec on 2009-168 Exhibit 2 Page 5 of 49 F. Mining History: The subject property has a long, inconsistently documented mining history. Diatomite mining began on the property prior to the 1920s. Large scale production began in 1936. The Great Lakes Carbon Company mined the property from 1944 to 1961. The mining history between 1966 and 1980 is unclear; however, it appears the diatomite extraction occurred primarily on the western portion of the site. The Oregon Department of Geology and Mineral Industries (DOGAMI) file for this site begins in 1980. That file indicates that multiple companies have mined the site, mostly for diatomite but also for aggregate. Although multiple mining permits were issued over the years, various companies were cited for violating environmental laws, mining permits, or operating without permits. By 1980 Deschutes Valley Farms owned the site and leased it to Northwest Diatomite. In January 1982, DOGAMI exempted Mid -Oregon Ready Mix from reclamation requirements because the land was a mined prior to the effective date of the reclamation rules. Mid -Oregon Crushing and Mid -Oregon Ready Mix were extracting aggregate by 1985. Various diatomite and gravel extraction activities occurred in the subsequent years. By 1994, E.A. Moore was extracting, screening and crushing gravel on the eastern portion of the site. Several DOGAMI inspections occurred over the years, which found reclamation plans being implemented. By 2006, DOGAMI was ready to close the file on the site. A Limited Exemption Closure Plan was submitted in late July, 2006. On July 31st DOGAMI closed the file on the site. Due to incomplete DOGAMI records and an apparent history of unpermitted mining, the total quantity of aggregate and mineral removed from the site during over 80 years of mining is unclear. G. Zoning History: In 1985, 339 acres of the subject property was rezoned from Surface Mining Reserve to Surface Mining. The applicants apparently anticipated that diatomite mining would become economically viable again because a processing plant was being constructed in Malheur County, which would enable the applicant to export it. The Hearings Officer found that there was little local demand for diatomite, but that export of the product after off-site processing partially justified the rezone. In 1988, the Deschutes County Goal 5 Aggregate Inventory identified the site as an aggregate resource (as opposed to a mineral resource, which includes diatomite) of 350,000 cubic yards. In the ESEE analysis for site 461, the Board identified the key values that form the basis for the application of SM zoning to the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway for highway maintenance and construction jobs. Relevant Previous Land Use Decisions: CU -74-156 — This record contains plan information for a solid and liquid waste disposal site on the subject property. It appears that this application was approved, as solid and liquid waste storage occurred on a portion of properly located West of Lower Bridge Way. A variety of wastes, including hazardous wastes were stored on the western portion of the site and subsequently removed. This is discussed more fully later in the findings. ZC-08-1'PA 08-1 -- BGCC 2009 63 Exhibit 2 Page 6 of 49 MP -80-96 — Divided modem tax lots 1503 and 1505, as Parcel 2, and 1506, as Parcel 3 from the remainder of the mining site. ZC-85-3 - A zone change from surface mining reserve to surface mining on tax Tots 1501, 1502, 1600, and 704. Condition 3 of this decision required a reclamation plan. SP -85-23 — A site plan to allow surface mining, aggregate mining, and rock crushing on tax lots 1501, 1502, 1600, and 704. This decision included reclamation specifications attached as Exhibit C to the Hearings Officer Decision for SP -85-23, but materials are missing from the record, including any map of the subject area and the updated reclamation plan required by Condition 1. The applicant submitted testimony and evidence demonstrating the area covered by the reclamation requirements for SP -85-23 encompasses an 18 -acre area just north of Lower Bridge Way and west of the site access road off Lower Bridge Way. Compliance with a County approved reclamation plan is made a condition of this approval as discussed further herein. ESEE Analysis #461 — On October 24, 1989 the Board of County Commissioners rezoned the remainder of the site (comprised of modem tax lots 1501, 1502, 1503, and 1507) to SM. This decision contains information about the quality and quantity of aggregate and mineral resources on the property. MP -90-74 — Divided historic tax lots 1501, .1507 and 1508 into two legal lots 'of 66 and 254 acres. All of the above files are incorporated into this record by reference. H. Proposal: The applicant requests approval of a plan amendment to change the designation of the subject property from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and to remove Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The applicant also requests approval of a zone change from SM and EFU-LB to RR -10 for the subject property. The removal of the SM zoning on the subject property also would remove the existing Surface Mining Impact Area Combining Zone (SMIA) zoning on properly located within one-half mile of the SM Zone. The site map submitted as Applicant's Exhibit 1 depicts areas presently zoned Flood Plain (FP) as part of this rezoning proposal. Discussions with the applicant have clarified that this proposal is not intended to rezone FP zoned lands. Public/Private Agency Comments: The Planning Division mailed notice to several agencies and received written comments and oral testimony in response. The agency responses are summarized in the staff report, in this Decision, or are included in the record. To the extent the comments pertain to the applicable approval criteria, they are addressed in the findings. Certain agency comments that relate to conditions of approval are discussed below. Oregon Department of Human Services, Environmental Health Assessment Program {EHAP): In a document received October 23, 2008, EHAP made the following reuurnnrcndation s regarding management and development of the site were made: /(:1); J �c. Exhibit 2 Page 7 of 49 Dilapidated buildings and piles of scrap wood and metal should be removed. In the meantime, the public should stay off the property and children and teens should be prevented from accessing the area. Soil sampling and air monitoring should be conducted in order to analyze them for cristobalite (crystalline silica) content and particulate matter size (PM2.5). Continue efforts to control dust, and include dust suppression plans for any future activities. If future zoning of the site changes to residential, site owners should: Consult with EHAP to develop a comprehensive site -sampling plan that would address issues raised in the report. In oral testimony provided at the December 17, 2008 hearing, David Farrar of EHAP stated that the existing EHAP evaluation of environmental conditions at the site only dealt with the present use of the property. Mr. Farrar recommended that the landowner obtain a letter of "No Apparent Public Health Hazard" from EHAP for the site prior to residential use. This would require additional environmental sampling and cleanup of any identified environmental concerns. Oregon Department of Environmental Quality (DEQ): In correspondence dated December 9, 2008, DEQ stated that the site has currently only been evaluated with respect to environmental safety for its current use as a mine and an industrial property. In prior correspondence, DEQ supported a rezone of the site from industrial to residential use, which would require a re-evaluation of the site for residential use. The re-evaluation of the site, applicable exposure routes, and pathways may result in some deed restrictions, active cleanup andlor monitoring. Following a Jl.ClidtlVs lequll ll)g active cleanup It�4gi„�lv��i i�. Following u cleanup of any identified environmental concerns, DEQ could issue a "No FurtherAction Letter" (NFA) or equivalent for residential use. J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feel of the subject property. In addition, notice of the public hearing before the Hearings Officer was published in the Bend Bulletin, and the subject property was posted with a notice of proposed land use action sign on February 2, 2008. Numerous residents submitted written testimony and evidence, and provided oral testimony at the public hearing. The residents identified concerns regarding dust (including health concerns specific to diatomite dust), chemical contamination of the site, radiological contamination of the site, site reclamation, traffic impacts, aesthetic impacts of the existing mine and structures, water quality, water rights, and aesthetics of future development. Public comments have also questioned if a new ESEE analysis or Goal 5 exception would be required. These comments are more fully addressed in the findings below. K. Lot of Record: The applicant submitted evidence regarding the status of the tax lots incorporated into these applications. The evidence shows that the property is comprised of legal lots of record created through deed or partition. L. Procedural History: On August 6, 2008, the Hearings Officer issued a decision denying the subject application. Section 22 28.030(C) requires: "(7_jone changes . concening lands designated for forest ... use shall be heard de novo before the Board Exhibit 2 Page 8 of 49 of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer(.}" Pursuant to that section, the Board held a de novo public hearing on the subject application on December 3, 2008. The hearing was continued to December 17, 2008 and again to December 29, 2008. The entire record of the proceeding to date was placed before the Board at the public hearing, and the Board closed the record at the conclusion of the December 29, 2008 hearing. At this hearing, the Board deliberated and voted to approve the subject application and to adopt the Hearings Officer's findings and conclusions, as revised and supplemented herein. lli. CONCLUSIONS OF LAW: PLAN AMENDMENTS The applicant requests the following: (1) approval of a plan map amendment from Surface Mining and Agriculture to Rural Residential Exception Area, and (2) removal of Surface Mining Site 461 from the county's Goal 5 inventory of significant mineral and aggregate resource sites. The county plan and development code do not set out a process for quasi-judicial amendments to the plan map and text. Rather; the county relies on consistency with the Statewide Land Use Goals and ORS 197.610 through 197.625 (post -acknowledgement plan amendment procedures) to provide both the process and the substantive review criteria. Those criteria are addressed in Section C. While there are no substantive approval criteria in the plan, it is useful to review the plan designation history of the .subjer_.t property, and address the parties' arguments regarding plan policies at the onset. 1. Plan Designation History. In the late 1980s the county undertook a lengthy process to inventory its mineral and aggregate resources, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinance to adopt the inventory and measures to protect sites. These plans were adopted thrnugh several ordinances and included listing Site 461 on the inventory of significant sites, adoption of a site-specific ESEE (Economic, Social, Environmental and Energy) analysis for Slte 461, and adoption of ordinances designating the subject property for surface mining, on October 24, 1989. 2. Current Plan Designation. The subject property is currently designated SM and AG (Tax lot 14-12 1600 only). 3. Applicable Comprehensive. Plan Provisions. The following plan policies are relevant to the proposed plan amendment from Surface Mining and Agriculture to Rural Residential Exception Area. A. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development Section 23.24.020, Goals. /C-08• 1/PA 08 B CC L aecisio n ............... rice. 200',_ Exhibit 2 Page 9 of 49 A. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The subject property is a former mine site which is exempt frorn most reclamation or other regulatory requirements requiring any revegetation. As a result, it has little vegetation and approximately 350 acres of the site consists of exposed diatomite which can create dust during large wind events. The proposed plan amendments by themselves will not alter open spaces, scenic values, or spoil rural character, but instead will create an opportunity to redevelop and mitigate existing adverse conditions of the site following historical mining and industrial operations. The present condition of the site adversely affects the scenic value of the area with rusting structures and extensive unrevegetated mined areas. Any future development, not included in this application, would be required to conform to development standards for Rural Residential (RR -10) zoned lands, that are designed to preserve and enhance the open spaces, rural character, and scenic values of the County.... Moreover, future development of any structures in the LM zone will be subject to individual site plan review to ensure the protection of the scenic values associated with the Deschutes River. Some neighbors commented that the proposal is inconsistent with this policy because a future planned development proposal could cluster dwellings along the top of the riverbank. The neighbors asserted that clustered residential development is inconsistent with the focal residential development pattern, and therefore a more appropriate zoning designation is EFU- 20. The Board agrees with the Hearings Officer on this issue and finds that the unrefuted evidence shows that the site does not contain agricultural soils. The proposed RR -10 zoning designation would maintain the residential density that occurs within the area, and if a planned unit development is proposed, the layout of the lots can be arranged to minimize their visual impacts on neighboring property owners. The removal of Site 461 from the County's surface mining inventory would preclude access to diatomaceous earth and aggregate materials on the site. The applicant has argued that there is insufficient remaining aggregate to economically extract, and there is little need for diatomite in modern industrial manufacturing. Neighbors dispute this finding, arguing that there are viable industrial uses for diatomite, and that the applicant's present desire to convert the land to residential use does not alter the significance of the site for diatomite production. These issues are discussed in greater depth below. B. To guide the location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. FINDINGS: The applicant argues that the proposal is consistent with this goal because a future developer, and not the public, will bear costs of extending facilities to the property. Opponents disagree that the extension of public services is the only consideration under this goal, arguing that it also requires a showing that the proposed rural residential uses "preserve and enhance the safety and viability of rural land uses." Opponents argue that unless reclamation and remediation measures are included in this approval, neither the neighbors nor the future residents of the site can be assured that the site is safe for development or that development on their properties will (email! viable. ('uhhc Fa dnw `�: ry ce Availability and Capecity ZC-0 -1 `PA -013-"r - 3JCC, Decision 5oc:wr;vnl rug.2( 1 S , Exhibit 2 Page 10 of 49 This goal requires the county to thoughtfully consider development locations to minimize urban sprawl and to ensure that public facilities and infrastructure are adequate to accommodate anticipated development. This includes consideration of service availability and capacity. Low density residential development allowed in the RR -10 zone does not require urban services such as sewer and water, as those needs can be served by on-site systems. Service boundaries will not be expanded. Public services, such as police and fire, already serve the area. With respect to these facilities and services, the proposed redesignation will have little to no effect. The site borders on Lower Bridge Way, a publicly maintained county road. The applicant's traffic study concludes the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. There is an ODOT project going to bid this Spring to reconfigure the Lower Bridge Way/Highway 97 intersections. This improvement will increase safety but not necessarily capacity at this intersection. Based on the evidence submitted by the applicant, including the traffic studies and the evidence of historical use as discussed further herein and incorporated by references, the Board finds that the traffic likely to be generated by development uses allowed under the current zoning is equal to or greater than the traffic likely to be generated under the proposed residential zoning. Therefore, the proposal should have no significant impact on the transportation facilities. See the discussion below for DCC 23.60.610. The Board further finds that Code criteria in the subdivision and conditional use chapters will allow the imposition of conditions requiring transportation facility improvements prior to or contemporaneous with subdivision or cluster development approval. Both the subdivision and conditional use processes require notice and an opportunity for full public participation. "To Preserve and Enhance the Safety and Viabilit of Rural Land Uses" As noted above, opponents argue that before this site is rezoned for rural residential uses, the applicant rnust demonstrate that it is safe for those residential uses, and that the safety of other local uses, including residential and agricultural uses are preserved and/or enhanced. The neighbors expressed concerns that hazardous wastes from mining activities since 1985 have not been adequately addressed, and that the 1984-85 remediation and removal of hazardous and radioactive wastes were inadequate. Further, the neighbors argue that the applicant has not yet demonslraled Met there is sufficient water to accommodate the proposed site reclamation and provide domestic water for the number of dwelling units that could be developed on the property. In addition, the neighbors argue that there is no evidence that the applicant will take steps to address water contamination from the remaining mining materials. Finally, the neighbors insist that this site will not be safe for residential use or preserve the viability of existing rural residential uses in the area until the diatomite is fully contained. Given the environmental history of the site, the Board finds that the rezoning the property for residential use, prior Io establishing that the site is safe for residential use, will not preserve and enhance the safety and viability of rural land uses. However, in previous County decisions, it has been held that, absent a comprehensive plan amendment, comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the zoning ordinance, it also will be consistent with the plan. While not required under this Comprehensive Plan Goal, findings and relevant conditions of approval intended to establish that the site is safe for residential use prior to development are set forth under DCC 18.136.020, as discussed below ZC-08,1!PA-08-1 13°CC Decision DocomenL No. 2009-16P: Exhibit 2 Page 11 of 49 The Board agrees with the Hearings Officer that the proposed map designation is consistent with other rural residential zoning in the area. In addition, if the mineral and aggregate resources are no longer needed/available, the site cannot be put to resource use. It includes few agricultural and no forest soils, and there is no dispute that the former mine site is not suitable for farm or forest activities. In addition, permitting rural residential development on the property will certainly be more compatible with neighboring residential uses than mining. Particular development concerns, including water quality and quantity, and dust suppression can be addressed in conjunction with a particular development plan for the site. Based on the above, the Board finds that the proposal, as conditioned under DCC 18.136.020, is consistent with this goal. C. To provide for the possible long-term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The unincorporated community of Terrebonne is located approximately seven miles southeast of the site. The proposed zone change and plan amendment would not preclude the possible long-term expansion of the community boundaries, although such expansion to the subject property is not foreseeable at this time. Any future development, not included in that application, would be required to conform to development standards for Rural Residential (RR -10) zoned lands, that are designed to protect the distinction between urban (urbanizing) land and rural lands. Section, 23.24.030, Policies. Residential/recreational development. 1. Because 91 percent of the new County population will five inside an urban area, with only 3,039 new rural lots required, and in light of the 17,377 undeveloped rural tracts and lots as well as the energy, environmental and public service costs, all future rural development will be stringently reviewed for public need before approval. As a guideline for review if a study of existing lots within three miles of the proposed development indicates approximately 50 per cent or more of those lots have not had structures constructed thereon, then the developer shall submit adequate testimony justifying additional lots in that area. This will permit development in areas where such is needed (other policies considering energy, public facilities, safety and other development aspects shall also be considered) while restricting future division in areas where many undeveloped lots already exist. FINDINGS: The Hearings Officer found that it was not entirely clear whether this policy pertains to a proposal to rezone property from SM to RR -10, as a rezoning is not "development" per se, and development of this site will require further review. The evidence in the record demonstrates the proposal is consistent with this policy based on staff's analysis of existing lots within three miles of the subject property. That analysis, set forth below, shows approximately 58 percent of those lots have been developed with structures: Zone Parcels H Ul E_ 1 92 Parcels with at least one structure 33 Exhibit 2 Page 12 of 49 EFUSC 16 3 EFULB 113 54 MUA10 388 292 RR10 75 23 SM 9 Total 693 405 58% The Board finds the proposal is consistent with this policy, and therefore the applicant does not need to submit additional justification for the requested zone change. 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation * * * The purpose of DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: This goal is implemented through the provisions of DCC 17.16.115(1)(1) and (2), and the TPR. As noted below, the proposal is consistent with both the county development code and the TPR because the re -designation will not significantly affect a transportation facility. 3. Chapter 23.68, Public Facilities a. Section 23.68.020, Policies 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 3. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. 2C-08-1/PA-08,1 - BOCC D vision 11:,, N.. 'innG Exhibit 2 Page 13 of 49 FINDINGS: These policies address public facilities and services that may be needed to serve residential uses on the site.3 With the exception of the local road system, future development is unlikely to overload existing or planned public facilities. Concerns regarding transportation facilities are discussed below. The existing rural residential development in the area indicates that public facilities and services are available. Future development of the property can be served by private wells and septic systems. Utility lines and facilities can be located so as not divide any existing farm units. 4. Chapter 23.88, Agricultural Lands Section 23.88.020, Goal. To preserve and maintain agricultural land. FINDINGS: As noted above, this proposal would result in the conversion of approximately 39 acres of "high value if irrigated" farmland to rural residential use.4 However, the subject property does not have potential for long term irrigation. Impacts imposed on agricultural uses by adjacent residential uses typically include vandalism, trespassing, disturbance to livestock, and dust. However, development of the project is likely to result in better dust suppression, to the benefit of nearby agricultural operations. Overall, the Board concludes that the proposal is consistent with these policies because it absorbs Some of the pressure to develop on agricultural lands. a. Section 23.88.030, Zoning Policies. 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm use, unless an exception to State goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 2. Lands not meeting the agricultural lands definition but having potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon, although presently without water, shall receive exclusive farm use zoning. FINDING: As explained at length below, the subject property, as a whole, is not "agricultural land." The property does not have potential for Tong -term irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon. A. OAR 660, Division 33. Agricultural Land. 660-033-0020 (1)(a) "Agricultural Land" as defined in Goal 3 includes: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in Eastern Oregon; (13) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for LC,-08..1/PA-08- : _. BJC;C J2as,on nc a:11er1 No. ?nna_?r: Exhibit 2 Page 14 of 49 grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (0) Land in capability classes other than I-1V/I-VI that is adjacent to or intermingled with lands in capability classes 14V/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; FINDINGS: The threshold inquiry for determining whether land is "agricultural" is whether the soils are predominately class I -VI. Miles v. Bd. of Comm. of Clackamas County, 48 Or App 951, 955, 618 P2d 986 (1980); Flury v. Land Use Bd. of Appeals, 50 Or App 263, 267 (1981). The evidence demonstrates that the subject property does not qualify as either high value agricultural or forest land. Soil studies conducted by Wert & Associates confirm that approximately 20% of soils are class VI; in fact only 5% of those are considered high value with irrigation. Staff reaches a similar conclusion, estimating that approxirnately 21% of soils are class VI, and only 7% of those are considered high value with irrigation. The record demonstrates the subject property is not irrigated and is not necessary to permit farm practices on adjacent agricultural lands, and the soils are not intermingled with agricultural soils within a farm unit. The Forage Report concludes that the property "is not suited for profitable, accepted agricultural use." Because a vast majority of the property contains class VII & VIII soils, and the poorer soils are not intermixed with higher class soils within an existing farm unit, it falls outside of the default category of "agricultural lands" set out in Goal 3 and OAR Chapter 660, division 33. The Hearings Officer noted that the site was originally designated for Surface Mining in the county's comprehensive plan and zoned Surface Mining Reserve. The site was rezoned SM in the 1985. The Board agrees with the Hearings Officer that the evidence in the record shows that the only "resource" designation on this site is for mining, a Goal 5 use, and not farm or forest, Goal 3 and 4 uses, respectively. For (hese reasons, the Board agrees with the Hearings Officer' and finds that subject property does not constitute "agricultural land' as defined in Goal 3, is not subject to protection under Goal 3, and therefore the proposed plan amendment and zone change do not require an exception to Goal 3 B. OAR 660 Division 6, Goal 4 Forest Land. Goat 4 defines "forest land" as follows: Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest Land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. FINDINGS: The subject property is not and never has been zoned for forest use. The detailed soi' study prepared by Steve Wert included an analysis of the subject property's soils for production of rnerchani„ble tree species, and shows the soil units identified on the subject :C-08 1IPA-08-1 - `IOCC I,)::c:ision Exhibit 2 Page 15 of 49 property are not listed in the NRCS' Woodland Productivity soils table, and therefore are not considered suitable for the production of wood crops by the NRCS. Finally, the record indicates the predominant tree species on the property are juniper trees which historically have not had comrnercial value and have not been harvested commercially either on the subject property or on nearby lands. Accordingly, OAR Chapter 660, division 6 does not apply. 5. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. 23.96.020, Goals. 1. To conserve open spaces and areas of historic, natural or scenic resources. FINDINGS: The site abuts the Deschutes River, a designated federal Wild and Scenic River and Oregon Scenic River. The river and property abutting it are subject to the Landscape Management Combining Zone and that designation will not change with the proposed designation to Rural Residential Exception Area. To the extent that rural residential development may affect open spaces and areas of historic, natural or scenic resources, the Board finds that the proposed designation will better preserve those resources than the existing mining designation. For instance, much of the mined area on the site is exempt from reclamation. Unless the site is put to some other use, the existing conditions will remain. • In addition, the density standards for the proposed RR -10 zoning will ensure that development on the site will be low density and will preserve significant areas of open space on the property, particularly if the site is developed with a PUD. Therefore, the Board concludes that the proposal is consistent with this policy. 2. To maintain and improve the quality of the air, water and land resources of Deschutes County., FINDINGS: As noted above, the majority of the site, primarily west of Lower Bridge Way, has a long history of industrial use, and some of those uses have resulted in significant environmental impacts Those impacts include dust from the diatomite, hazardous and radioactive waste disposal and remediation, and violations of environmental quality regulations Neighbors expressed concerns regarding the impact of the proposal on water quantity and quality, arguing that the water needed to reclaim the site will adversely affect the area's water supply. Those issues are addressed as follows: Diatomite dust. According to the applicant, the exposed diatomite on the western portion of the property is from fresh -water diatoms. The applicant supplied testimony and evidence that shows that fresh -water diatomite contains a smaller percentage of crystalline silica, the type of silica that has been identified as a health hazard if inhaled in quantity. The applicant argues that this type of diatomite poses no more risk than other dust in the area The applicant also argues that before this site is redeveloped for residential uses, the diatomite will be graded and seeded to prevent dust from blowing from the site to neighboring properties. The neighbors expressed LC -(1 ?• i %,C)8- 1 130C . i;nC oil G.,. -_„nn, Nu 2009-' C:£; Exhibit 2 Page 16 of 49 reservations about this assertion, arguing that the cost and feasibility of that type of reclamation is unlikely to be recouped as part of development on this site.5 The evidence shows that blowing dust has been an issue for many years, although recent grading activities exacerbated the situation. The recent activities led the Department of Environmental Quality (DEO) to issue a notice of violation. In response to the notice, the owners obtained a temporary water permit, purchased mitigation credits, installed a pivot and began using an existing well to water a portion of the site to minimize dust. The applicant is also proposing to implement best management practices to ensure that blowing dust during development is minimized. These measures are adequate to assure that local air quality is maintained. Water quality/quantity. According to the evidence in the record, seven wells have been drilled on the site. These wells are proposed to be used for dust suppression, and may be converted to domestic wells in the future. The applicant proposes to develop individual, shared or group wells (serving up to three lots) as part of its residential development. The residents may use up to 15,000 gallons per day for domestic and yard irrigation (up to one-half acre) and remain exempt from water rights regulation. Similarly, wells developed to serve three or fewer dwellings are, exempt from water quality standards. Neighbors expressed concerns regarding potential water contamination from past industrial uses, and also argue that the introduction of 17 or more new wells (assuming 72 dwelling units, and at least one well per three dwelling units minus the seven existing wells) could significantly affect their water quality and quantity. The Board agrees with the Hearings Officer and finds that this goal does not directly address the availability (or quantity) of domestic water supplies. Rather, it is intended to assure that quality of air, water and land resources is maintained and improved. Here,the evidence (including evidence from testing of nearby community water wells) shows that existing water quality in the area is adequate, and that past activities on the site have not affected nearby well water quality. With respect to water quality at the site, the Board finds that the question can be better addressed al the time a development proposal is submitted for the site. At this point, the evidence shows that the proposed plan amendmenUzone change will not have any effect on water quality. Erosion/Fill. One of the neighbors expressed concerns regarding slope stability at the site, asserting that new grading may undermine the slope along the edges of the river bank. Other neighbors expressed concerns that the fill used for residential foundations be adequate for the purpose, noting that a school in Deschutes County is sinking, in pad because the fill used by the contractor was not stable enough to accommodate the building. The evidence shows that diatomite mining occurred closer to the center of the site, and that the aggregate mining has ceased. There is no evidence that past mining has undermined slope stability along the river edge. The applicant has proposed to grade some of the taller diatomite rnounds to reduce the 5 The opponents argue that the diatomite has been converted to crystalline silica during through an on- site manufacturing process. They cited evidence showing that crystalline silica is hazardous to worker health, and argued that until the diatomite at the site has been removed or covered with top soil, there is no guarantee that existing or future residents' health will not be affected. They further argue that diatomite doesn't grow much, and unless the applicant plans to import a significant amount of topsoil, it is unlikely that the reseeding efforts will be successful. While the former evidence tends to support a finding that processing of diatomite al the site needs to be regulated, the evidence of the health effects of freshwater diatomite on neighhoring properly owners is not sufficient to undermine the applicant's evidence that such effects arc limited, and consistent wiln the effects of blowing dust in general Zeera.1CPA,-,8,BOee ?c on Exhibit 2 Page 17 of 49 areas susceptible to blowing dust. As for future development, land division and development standards impose setbacks from the edge of the bank. Deschutes County does not require grading permits and does not presently regulate fill to determine if it is suitable for residential use. As a condition of approval, if fill is brought onto the site, the applicant will be required identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. The Board concludes that these measures are adequate to assure that development on the site will not adversely affect air, water or land quality. Dumping/Environmental Issues. A portion of the site west of Lower Bridge Way was an approved waste facility in the mid-1970s, and consequently, sludge, radioactive materials as well as standard solid waste was brought to the site during that time. According to the applicant, the dumping grounds were limited to the central portion of the site, near the former lagoons, and included 55 -gallon drums filled primarily with caustic sand. The site was subject to a DEQ - mandated clean up, which was completed by January 1985. The evidence shows that all of the materials located at the site prior to 1985 were removed to approved hazardous waste disposal sites, including Arlington and the Hanford Reservation. According to Maul Foster and Alongi, Inc., the applicant's environmental consultant, the standards used to evaluate the clean-up was based on one of two standards "clean up to the maximum extent practical" or "clean up to background conditions." Maul Foster and Alongi, Inc. representatives testified that these standards are higher than the current risk-based standards, which permit Tess comprehensive clean up where the site will be used .for industrial purposes than is required for sites that will be redeveloped for residential uses.6 With respect to spills or activities that have occurred since that time, including disposal of mining solvents and industrial burning, the evidence shows that the violations have been addressed by meeting industrial use standards. The Board has included conditions es discuccerl more hilly herein, to ensure the property is clean enough to included conditions, v ��.iv�........... more J ��_ meet residential use standards. Based on these findings, the Board finds that residential development of the property will not significantly impair air, water or land quality in the area. a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those ° The Hearings Officer found that a question remains as to whether the 1985 standards (based on 1985 technology) are equivalent to the clean-up standards that would be imposed if the site were subject to current standards for residential re -development Evidence placed in the record since that time establishes that different regulatory standards exist for residential use. The Hearings Officer found that this goal requires a demonstration that the site meets applicable DEQ clean-up standards, which in this case, are the 1985 standards I he Hearings Officer then concluded that the applicant had mel its burden of demonstrating that those standards have been satisfied, therefore, the proposed plan amendment and zone change are consistent with these standards The Board agrees with and adopts these findings. The Board further imposes conations to require the applicant to submit a DEQ release for residential use, 7C-0811'%\-08- BCCC Dor u hent 1Jr, 2009-16t. c Exhibit 2 Page 18 of 49 resources to the County while considering the public need for the proposed development. FINDINGS: This plan policy is not applicable to the proposed plan amendment because the applicant is not seeking subdivision approval or development review. If the plan amendment and zone change are approved, then future development will need to satisfy this standard. 6. Chapter 23.108. Historic And Cultural a. 23.108.020, Goals. 1. To preserve and protect historic and cultural resources of Deschutes County. a. 23.108.040, Goal 5 Inventory - Historic Resources. 21. Lynch and Roberts Store Advertisement: Ad advertising sign painted on a soft volcanic ash surface. Only area example of early advertising on natural material. Lynch and Roberts established mercantile in Redmond in 1913, Roberts Field near Redmond was named for .1. R. Roberts. Site includes the bluff. 14-12-00 TL 1501. FINDINGS: The Lynch and Roberts Store Advertisement sign is painted on a Targe boulder Located on the property. this zonechange,in itself, does not authorize any located subject NrCNci.y. As ...,.. � .,....�. ...,. authorize any development of the property, no adverse impacts to historical resources on the subject property are anticipated. The applicant has proposed several measures to protect this historic resource. The applicant has proposed to not develop any area within a 100 yard radius of the historic sign and has proposed to post markers to denote the historic significance of the sign and to prevent trespass, prior to development of the site. The applicant has also proposed that any Covenants, Conditions and Restrictions (CC&Rs) created as a part of a residential development of the subject property will contain obligations to protect the area within a 100 yard radius of the historic sign from development and trespass and to maintain the historic markers. The Board finds .that the proposed measures will he sufficient to meet the goal of protecting this historic resource. These measures to protect the Lynch and Roberts Store Advertisernent sign have been included as conditions of approval. 8. Oregon Administrative Rules 1. OAR 660, Division 12, Transportation Planning Rule (1) Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation would significantly affect an existing or planned transportation facility, the local government shall put in place measures as provided in section (2) of this rule to assure that allowed land uses are consistent with the identified function, capacity, and performance standards (erg. level of service, volume to capacity ratio, etc.) of the facility. A plan or land use regulation amendment significantly affects a transportation facility if it would: ZC-08-1; PA 08 1 -- BOCC Decision DocinIcsli r8.1:*-; 2009-168 Exhibit 2 Page 19 of 49 (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) As measured at the end of the planning period identified in the adopted transportation system plan: (A) Allow land uses or levels of development that would result in types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Reduce the performance of an existing or planned transportation facility below the minimum acceptable performance standard identified in the TSP or comprehensive plan; or (C) Worsen the performance of an existing or planned transportation facility that is otherwise projected to perform below the minimum acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shalt include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor transportation improvements. Local governments shall as part of the amendment specify when ZC-08-1IPA-U8-1 — BOCC Decision Document NIG 200g--16 Exhibit 2 Page 20 of 49 (3) FINDINGS: measures or improvements provided pursuant to this subsection will be provided. Notwithstanding sections (1) and (2) of this rule, a Local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate ODOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. The Transportat•on Planning Rule ("TPR") applies to these applications because they involve an amendment to an acknowledged plan. The proposed plan amendment would change the designation of the subject properly from SM and EFU-LB to RREA, and the applicant has requested approval of a zone change from SM and EFU to RR -10 for the subject property. The TPR, OAR 660-012-0060, is triggered when uses allowed under a plan amendment/zone change would 'significantly affect' a transportation facility by generating more traffic than what would he generated by those uses allowed under the current zoning To properly compare the trips; the trips generated by the most traffic intensive uses in the existing zone must be compared to the trips generated by the .most traffic intensive uses under the proposed zoning. Mason v. City of Corvallis, 49 Or LUBA 199 (2005); Griffiths v City of Corvallis, 50 Or LUBA 588 LC-Uti-11PA-UO-1 -- 000C r F,cisiotti Doc_ rrwnt No 2009 166 Exhibit 2 Page 21 of 49 (2005) Where the most traffic intensive uses allowed under the proposed zoning would generate an equal or lesser amount of trips than those allowed under the existing zoning, the proposed amendment would not significantly affect a transportation facility. Mason, 49 Or LUBA at 222; Griffiths, 50 Or LUBA at 593. In other words, the initial question under the TPR is whether the amendment causes a net increase in trips by comparing uses allowed under the existing zoning to those allowed under the proposed zoning. If the answer to that questions is no, as here, the amendment does not "significantly affect" a transportation facility. Griffiths, at 593. The applicant's December 2007 traffic study finds the intersection of Lower Bridge Way/U.S. 97 will not meet either the performance standards of Deschutes County or ODOT with or without this development. The County sets a standard of Level of Service (LOS) D for existing roads while the applicable ODOT volume/capacity (V/C) ratio is 0.70 for the highway and 0.80 for the side street based on functional classification and posted speed. An ODOT project planned for Spring 2009 will reconfigure the Lower Bridge Way/97 and 11th Street197 intersections. This project will improve the operations and safety at these intersections, but it will not address the capacity issue, as the project focuses more on storage issues on the side streets. Staff, ODOT, and the applicant worked together to identify rural surface mining sites that are comparable to the applicant's 550 -acre roughly six miles west of Terrebonne. The resulting comparable surface mines included one west of Sisters and two on the O'Neil Highway near the Deschutes/Crook County line. In particular, the O'Neil Highway sites (Hooker Creek and Lone Pine) were the closest equivalent sites to the applicant's in terms of both geography and relative proximity to nearby urban markets. A review of the Dec. 19, 2007, April 22, 2008, and May 20, 2008, traffic analyses indicated these comparable sites were analyzed in one or more of the .. ffic studies applicant's frank studies. The traffic analysis of the three sample sites demonstrated surface mines generate p.m. peak hour trips at a range of 0.041 to 0.16 trips per acre. Applying those trip generation values to the land presently zoned SM could generate 23 to 88 trips in the p.m. peak. Applying the trip generation rates for the O'Neil Highway surface mines, which again are the best comparable sites, to the Terrebonne site results in 72 to 88 p.m. peak hour trips. Under the proposed zoned change to RR -10, the applicant could construct 55 single-family homes on the 550 acres This would result in 55 p.m peak trips on the system, according their Dec. 19, 2007, traffic impact analysis. Therefore, as the existing SM zone can generate 72 to 88 p.m peak hour trips whereas the RR -10 zone could generate 55 p.m. peak hour trips, the proposed zone would generate fewer Irips than the existing zoning. To further substantiate the finding of equivalent or greater trips under the SM zoning, the applicant submitted testimony and evidence documenting the historic levels of activity at the site. Historically, it was used for a wide variety of uses allowed under the SM zone including aggregate and diatomite mining and processing, an asphalt plant, a rock crushing operation, a staging area for road construction, and a hazardous waste materials facility. See, Exhibits PH -1 and PH -2. In fact, previous operators at the site estimated there were as many as 22 trucks per hour hauling sand and gravel during the pe-iod from 2004 to 2007 and as many as 150 trucks per day during the period of 1978 through 1988 when the site was used as a batch plant and crushing operation Records also show the site employed over 100 workers in shifts of 35 employees each during the diatomite mining. See Exhibit PH -2. -O8-1IPi, or i Ur:lurit No 2009 168 Exhibit 2 Page 22 of 49 Furthermore, the current owners of the site hold the mineral rights to mine the adjacent surface mining (SM site no. 322) property to the east (Exhibit PH -3). Thus, the evidence in the record shows that the subject property could be used as staging and processing area for material mined from the adjacent property and other sites in the area. The applicant also submitted the deed records showing the owners of the subject property hold mineral rights to adjacent properties. Given the historic level of use at the site, the remaining diatomite resource, the proximity of the site to a state highway with upcoming construction projects and its central location between two rapidly growing communities, the Board finds that the site would generate at least the same or more trips under the surface mining zoning as it would under the proposed residential zoning. This is especially true if the present owners are left with environmental clean up costs/ responsibilities and mining or mining related uses as the only economically viable uses of the properly. Therefore, the Board finds the proposal will not significantly affect a transportation facility, and is, therefore, consistent with the TPR as defined by OAR 660-012-0060. 2. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicant's proposal through individual mailed notice to affected property owners, posting of the subject property with a notice of proposed land use action sign, and published notice of the public hearing in the 'Bend Bulletin" newspaper. In addition, four public hearings were held, one before the Hearings Officer and dud: a1 three before the Board. There was extensive public participation in this process, including Gray and written testimony and evidence. Goal 2, Land Use Planning. The proposal has been reviewed in accordance with the county's acknowledged planning review processes, and was the subject of four public hearings. Further, no Goal 2 exceptions are required The proposal is consistent with this goal. Goal 3, Agricultural Lands. The property contains few agricultural soils and has not been cultivated for crops or livestock. The site is not "agricultural" within the meaning of Goal 3. Goal 4, Forest Lands. This goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. According to the applicant, the site no longer contains aggregate in sufficient quantities to qualify as a "significant site' under Goal 5 and OAR Chapter 660, division 23. The evidence shows that the majority of the aggregate resource is located on the southeastern portion of the site, south of Lower Bridge Way. The site has been closed in accordance with DOGAMI regulations, and the evidence shows that little of the resource remains. While the parties apparently agree That vast quantities of diatomite remain, they dispute whether the materials will be needed for industrial or construction uses in the near future, and whether other locations are available to supply long term future needs. The Board agrees with the Hearings Officer and finds that because the market for diatomite is a global market and the supply of the mineral is available on a global scale, there is no evidence that there is a local market for diatomite That could be accommodated by retaining this site in Surface Mining zoning. The Board further finds that removal of this site from the County's Goal 5 inventory is justified because the unrefuted /C-08 1 /PA -U8 .) - ',.3UCC Dec. i.)oCUIT'. ni No. 2009-168 Exhibit 2 Page 23 of 49 evidence in the record shows that there is not a significant quantity of aggregate resource, 'which is the resource for which the site was listed on the Goal 5 inventory. In response to comments that the proposal will only be consistent with Goal 5 if the ESEE analysis for Site 461 is amended to address the relative merits of allowing or not allowing mining on the site based on current conditions, the Board finds that such a revised analysis is not necessary if the purpose of the amendment is to remove a resource from the protection afforded by the inventory designation. The applicant has requested that the site be removed from the inventory, and there is little or no benefit to retain it. Therefore, further analysis is unnecessary. Goal 6, Air, Water and Land Resources Quality. While a number of environmental quality concerns have been identified, the Board finds that those concerns are addressed through environmental quality and health administrative rules. The conditions imposed herein will require the environmental agencies to ensure the property is clean enough to meet applicable regulations for residential use standards prior to development. Likewise, residential development on the site will not be permitted unless the applicant demonstrates that adequate area is available for on-site sewage disposal. Opponents argue Goal 6 requires the site to be cleaned up before a residential zoning or use can be approved. The Board disagrees. Goal 6 requires findings that waste and process discharges from a proposed use will be able to comply with applicable state and federal environmental quality standards. It is limited by its terms to wastes and discharges from future development. The evidence in the record establishes the proposed use as a maximum of 74 single family residences served by individual wells and on-site septic systems. The applicant submitted evidence showing there is a sufficient quantity and quality of water available to serve the development without measurable impact to adjacent properties, the groundwater aquifer or the Deschutes River. Any future residential development will have to receive approval from Deschutes County Environmental Health for the establishment of septic systems to serve the proposed residences. Any subdivision or land division would have to show the lot lines are configured in a way to support an area for an on-site septic system. There is no evidence to suggest that waste or other discharges from the proposed residential use would not meet any applicable state or federal environmental quality standards. Goal 7, Areas Subject to Natural Disasters and Hazards. The subject property contains areas subject to flooding along the Deschutes River, as shown on FIRM panel 4101700300E. This proposal does not include any development in floodplain areas. Any future development in these areas would he required to comply with the provisions of DCC 18.96, which has been reviewed and approved by FEMA Goal 8, Recreational Needs. The proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the impact area, and to the extent the development of residential uses on the property will generate a need for recreational opportunities, the Board finds that those needs can be served on-site or by existing recreational areasiservices. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. This goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be re -designated and rezoned for rural residential development will not have adverse economic impacts ZC-06-1;'('A-08-1 -- 3(j1„C DeCiSiG11 r ocur`?cii No 20A-168 Exhibit 2 Page 24 of 49 Goal 10, Housing. Goal 10 defines needed housing as being housing within urban growth boundaries. This property is outside the urban growth boundary, and therefore Goal 10 is not applicable. Goal 11, Public Facilities and Services. This Goal requires planning for public services, including public services in rural areas. Goal 11 has generally been held to prohibit the extension of urban services (namely sewer and water) to rural lands outside urban growth boundaries. The present application will not result in the extension of urban services because the low-density development allowed in the RR -10 zone does not require urban services. Any residential development will be of a density that can be served by on-site septic and individual wells. Goal 12, Transportation. This goal is to "provide and encourage a safe, convenient and economic transportation system." It is implemented through OAR 660-012, commonly known as the TPR. Based on the findings in response to the TPR, the Board finds the proposal is consistent with Goal 12. Goal 13, Energy Conservation. Goal 13 is to conserve energy. Planning Guideline 3 notes that "[!]and use planning should, to the maximum extent possible, seek to recycle and re -use vacant land..." Surface mining activities have ceased on the site and it has been vacant for some years. The applicant proposes re -use of the land consistent with this guideline, and thus this proposal is consistent with Goal 13. Goal 14, Urbanization. The applicant's proposal does not affect property within an urban growth boundary and the proposed RR -10 zoning designation does not permit urban density levels. Goal 14 therefore does not apply. Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not applicable because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE FINDINGS: The applicant has requested approval of a zone change from EFU-LB and SM to RR -10 for the subject property, and to remove the associated Surface Mining Impact Area (SMIA) overlay from property located within a one-half mile radius of the site. However, because the site is within a one-half mile radius of Site 322, the applicant requests that the SMIA be applied to this property, to protect mining uses at that site. C. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining Zone (SM) a. Section 18.52.130, Site Reclamation Plan. Prior to the start of mining activity, a site reclamation pian shall be submitted and approved which demonstrates that the mineral and aggregate extraction site can be reclaimed for a subsequent beneficial land use consistent with the designation of such subsequent use in the surface mining element of the Comprehensive Plan. 2C-06..1/=T'A-O ! - BOCC Dodi Docurncnl No 2609-168 Exhibit 2 Page 25 of 49 A. When a site reclamation plan is required by DOGAMI, the site reclamation plan shall be approved by DOGAMI. To the extent practicable, review of the site reclamation plan shad be conducted jointly between DOGAMI and the County. B. When a site reclamation plan is not required by DOGAMI, the site reclamation plan shall be approved by the County in conjunction with the site plan review described in DCC 18.52.070. The County shall review such site reclamation pians for consistency with the site-specific ESEE analysis in the surface mining element of the Comprehensive Plan and the standards and conditions set forth in DCC 18.52.110 and 18.52.140. The County also shall follow the applicable DOGAMI standards and criteria for a site reclamation plan. FINDINGS:' As previously discussed, much of the mining activity on the site took place prior to any County or State regulation and is therefore exempt from reclamation requirements. The evidence in the record shows that all reclamation required by DOGAMI was completed to DOGAMI's satisfaction and DOGAMI has closed its file on the site. Specifically, the evidence shows that the areas southeast of Lower Bridge Way were subject to a DOGAMI reclamation plan and have been reclaimed in accordance with that plan. The mine site northwest of Lower Bridge Way did not have a DOGAMI required reclamation plan. However, a County reclamation plan for the removal of the aggregate resource was required under SP -85-23, and was attached to that decision as Exhibit C. The evidence shows this area encompasses an 18 -acre area on the 410 -acre site that is north of Lower Bridge Way and west of the site access road. The applicant proposes to reclaim this area of the site to allow fcr residential development and to submit a modified reclamation plan as described in the applicant's December 3, 2008 plan. The Board finds that this criterion can be met through the imposition of a condition of approval requiring the applicant to complete County approved reclamation of the 18 -acre area covered by SP -85-23 through a modified reclamation plan substantially consistent with the plan submitted by the applicant dated December 3, 2008. The modification will be processed as a land use application with notice and an opportunity for full public participation. b. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has been fully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan, FINDINGS: The County's inventory of significant mineral and aggregate sites describes SM Site 461 as follows: Site No. Legal Description ZC•0t-1ll-'l; t)8-1 - BUCC. Deco rur Docornen1 Nu 2009-1631 Type Quantity Quality] Exhibit 2 Page 26 of 49 461 141300-00-01500, 1501, Aggregate 350,000 y t Good 1502, 1503, 1505, 1600 [Diatomite] 2000,000 y3 I Subsection (A) requires the operator to demonstrate that: 1) the site has been fully or partially mined; 2) a significant resource no longer exists on site; and 3) the site has been reclaimed in accordance with DOGAMI, or DCC Section 18.52.130 standards. The applicant asserts that all three conditions are satisfied here. The Board agrees. As discussed in detail below She 461 has been mined. The section below discusses significant resource status. In the County's previous decision in Stott (PA-98-12/ZC-98-6), the Hearings Officer held that the provisions of OAR 660 Division 23 regarding compliance with Goal 5 are relevant to this question. OAR 660-023-0250 provides in pertinent part: (1) [OAR 660, division 23] replaces OAR 660, division 16 * * *. Local governments shall follow the procedures and requirements of this division * * * in the adoption or amendment of all plan or land use regulations pertaining to Goal 5 resources. The requirements of Goal 5 do not apply to land use decisions made pursuant to acknowledged comprehensive plans and land use regulations. (2) The requirements of this division are applicable to [post -acknowledgment plan amendments (PAPAs)] initiated on or after September 1, 1996. * * * Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section a PAPA wnulri affect a Goal 5 resource only if: (3) (a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5[.] In Stott, the Hearings Officer concluded that a plan amendment and zone change to "de -list" and rezone a surface mining site constitutes a "PAPA," and therefore the provisions of OAR 660-023--0180 concerning mineral and aggregate resources apply to such ari application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. The Board agrees with this conclusion. The Hearings Officer further found OAR 660- 023-180(3) identifies the pertinent standards for determining "significance." This paragraph provides: (3) An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets any one of the criteria in subsections (a) through (c) of this section, except as provided in subsection (d) of this section: (a) A representative set of samples of aggregate material in the deposit on the site meets applicable Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and soundness, and the estimated amount of material is more than /C-08-1/PA-08-1 -. BOCC Decision Document No, 2009.1133 Exhibit 2 Page 27 of 49 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the Willamette Valley; (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. FINDING: Significant Resources: Mineral and aggregate are not the same resources. Mineral resources refer generally to all inorganic materials that are extracted from the earth and put to beneficial use. It includes precious metals, valuable minerals, diatomite, as well as rock and sand. "Aggregate," on the other hand, refers to those inorganic substances that are used in road or other construction activities. OAR 660-023-0180 only addresses "aggregate" resources. The county's Goal 5 program primarily addresses aggregate resources, although the definition of "mineral" is broader than the definition of "aggregate' set out in OAR 660, division 23. Aggregate resource is significant if it meets one of the three criteria set out in OAR 660-023- 0180(3). Here, the only potentially applicable standard is OAR 660-023-0180(3)(a).7 OAR 660-023-0180(3)(a) requires a demonstration that the aggregate at the site: 1) meets ODOT specs for air degradation; 2) abrasion; 3) sodium sulfate soundness; and 4) include mete than 500,000 tons. The Aggregate Resource Assessment Report prepared by GeoDesign, Inc. and submitted as Exhibit 7 ("Aggregate Report") concludes that subject site does not satisfy the criteria because it fails sodium sulfate soundness requirements and contains less than 500,000 tons of aggregate. Based on a site-specific analysis, the Aggregate Report estimates the quantity of the aggregate at 211,000 cubic yards. Assuming a tons -per -cubic yard ratio of 2.1, the Report finds 443,100 tons of aggregate on site, less than the "significant" threshold above. The Board agrees with the Hearings Officer that the unrefuted evidence demonstrates that the site no longer contains a significant aggregate supply. With respect to diatomite, the aggregate significance standards do not apply because diatomite is a mineral, not aggregate, resource. Neither local law nor administrative rule define what a significant "mineral" resource is. Furthermore, the ESEE analysis for the site makes it dear that the site was listed on the County's Goal 5 Mineral and Aggregate inventory based solely on the quantity of aggregate on the site, not diatomte. While the value of diatomite in the global market justified the rezoning of the property to SM, and the approval of mining in 1985, the applicant has provided information in the submitted burden of proof that there is no economic incentive to mine diatomite on the subject property due to ample global supply, low profitability, less expensive substitute materials, and undesirable environmental impacts. Due to its limited usefulness in the local market, and the evidence that other materials provide a more suitable replacement, the Board agrees with the Hearings Officer that the diatomite on the site is not a "significant" mineral warranting protection. 'OAR 660-023-0180(3)(h) does not apply because the local government has not establisher) lower standards. OAR 660-023-0180(3)(c) does not apply to requests to remove a site from the acknowledged inventory See Hearings officer decisions PA -9b-12 2,116 ZC-98-6, PA -04-4 at page 30 (Exhibit 15) and PA -06-2 al page 14 (Exhibit 19). ZG08-1/PA 08-1 -- 600C I)ecisron Document No. 2009-168 Exhibit 2 Page 28 of 49 Reclamation: The Deschutes County Code requires that the site be reclaimed in accordance with a reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18.52, DOGAMI has found the site to be reclaimed according to its standards. As the DOGAMI memo explains, 61 acres on tax lots 1503 and 1505 were covered by an operating permit for gravel extraction, and reclamation has been completed there. The overburden stockpiles on that area have been revegetated, are stable, and may remain until used for on-site development. The former DIATOMITE mining site (west of Lower Bridge Way) is exempt from reclamation requirements under ORS 517.770 because it was part of a mine that existed before 1972. Site Plan approval SP -85-23 included reclamation specifications. Below is a summary of the applicant submitted reclamation plan, attached as Exhibit C to the Hearings Officer Decision in SP -85-23. The applicant has stated that the topsoil is stockpiled and will be replaced on the area mined approximately 12 inches deep. The applicant proposed to motorgrade the site and seed it with fortress red fescue, Idaho fescue, and mixed bunchgrass at a rate of 40 pounds per acre planted in the fall with fertilizer and mulch. The applicant also proposes to plants evergreens for shade and windbreaks on the site. Condition 1 of SP -85-23 also required an updated reclamation plan to include measures to prevent materials from eroding into the Deschutes River. Staff has been unable to locate this updated reclamation plan or a map showing the area covered by SP -85-23. The applicant submitted testimony and evidence establishing an 18 -acre area north of Lower Bridge Way and west of the site access road on the area mined for aggregate under the permit issued in SP -85- 23. The evidence establishes that come but not all of the compn_nents of the recaamatinn plan summarized above were completed. There is significant confusion as to the relationship between the DOGAMI reclamation standards and DCC 18.52.200(A)_ DOGAMI has the statutory authority to regulate reclamation over sites located in Deschutes County, and its reclamation standards supersede local standards. Therefore, unless the applicant agrees otherwise, sites that are exempt from reclamation under DOGAMI regulations are similarly exempt from other, more restrictive local standards that could be imposed as a condition of land use approval. Thus, as a practical matter, the only role the county has in the reclamation process is to identify a post -mining use. If the post -mining use is established prior to the adoption of a reclamation plan, the plan must be consistent with that post -mining use. Here, the evidence shows that the applicant proposed a reclamation plan for the area mined for aggregate in SP -85-23. Those reclamation activities were not required in the DOGAMI reclamation plan, but rather were solely imposed as conditions in SP -85-23, enforceable by the County. The Board finds that the condition discussed previously requiring the applicant to complete a County approved reclamation plan is sufficient to show compliance with the earlier condition, since it actually increases the ultimate likelihood of compliance. Based on the above, the Board finds the site has been partially mined, a significant resource no longer exists and the site has been or will be, through the fulfillment of conditions of approval, fully reclaimed in accordance with DOGAMI and DCC requirements. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface LC-08-1ir'A-08-1 rBGCC Decision Document No 2009_168 Exhibit 2 Page 29 of 49 mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: The present zone change will also remove the surface mining impact area combining zone which surrounds the rezoned surface mining site. However, as noted above, Site 322 is located within one-half mile of the site. Therefore, a SMIA that covers a one-half mile radius of that site must remain on nearby property and must be applied to this site. 2. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: FINDINGS: The Board finds that this section requires that a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. The Board finds this analysis must include, but is not limited to, to factors described in this section. The record indicates that. the subject property was historically used to mine and process diatomaceous earth. The record also indicates that the processing of diatomaceous earth can create cristobalite, classified by the International Agency for Research on Cancer as carcinogenic to humans. There is no evidence in the record that the property has been tested or evaluated for potential hazard form this carcinogen The Cite has also bean used for hazardous and radioactive waste disposal and has been subject to numerous violations of environmental quality regulations. The Oregon Department of Human Services, Environmental Health Assessment Program (EHAP) stated that the existing EHAP evaluation of environmental conditions at the site only dealt with the present use of the property. EHAP recommended that the landowner obtain a letter of "No Apparent Public Health Hazard" from EHAP for the site prior to residential use. This would require additional environmental sampling and cleanup of any identified environmental concerns. EHAP has also found that airborne dust from any source can cause short-term respiratory irritation, but more information is needed to evaluate possible long-term effects at this site. EHAP considers inhalation of airborne dust emanating from this site to be an indeterminate health hazard. The Oregon Department of Environmental Quality (DEQ) stated that the site has currently only been evaluated with respect to environmental safety for its current use as a mine and an industrial property. A rezone of the site from industrial to residential use would require a re- evaluation of the site for residential use The re-evaluation of the site, applicable exposure routes, and pathways may result in some scenarios requiring deed restrictions, active cleanup and/or monitoring. Following a cleanup of any identified environmental concerns, DEQ could issue a "No Further Action Letter" (NFA) for residential use. Given the environmental history of the site. the Board finds that the public interest will not be served by rezoning the property for residential use, prior to establishing that the site is safe for ZC-O8-1/PA-O8-1 — bOCC Decision Document No 2009-168 Exhibit 2 Page 30 of 49 residential usee. The Board finds, however, that the applicant can meet this criterion through conditions of approval. In establishing these conditions of approval, the Board recognizes that the majority of the environmental concerns pertain to dust and hazardous waste storage that occurred on the a portion of property located West of Lower Bridge Way. Therefore, separate conditions of approval are imposed for 1) the area to the East of Lower Bridge Way (together with approximately 30 acres along the river west of Lower Bridge Way; and, 2) the area West of Lower Bridge Way, the latter requiring a Resolution of Intent to Rezone rather than a current rezoning of that section. East Area: 1. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Environmental Quality (DEQ) a "No Further Action" (NFA) determination or the equivalent for a residential use designation for the 160 acres. 2. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Human Services (DHS) a determination of "no apparent public health hazard" for a residential use designation for the 160 acres. West Area: 1. Within five (5) years' or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from DEQ an NFA.determination or the equivalent for a residential use designation for this 410 acre area. 2. Within (5) five years or prior to final plat approval for any residential subdivision on the 410 acre area that is the .q.thiec.1 of File No. 7c-0R-VPA-0R-1 whichever is earlier, the applicant shall obtain from DHS a determination of no apparent public health hazard" for a residential use designation for this 410 acre area. 3. During the pendency of this Resolution and continuing in conjunction with the DEQ VCP program and site development, the owner shall implement the DEQ approved Planting Plan dated May 20, 2008 (Exhibit PH -6) and the DEQ approved Watering Monitoring Plan dated May 20, 2008 (Exhibit PH -7) as the Dust Abatement Plan for the site That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. FINDINGS: In previous County decisions, it has been held that comprehensive plan goals and policies do not constitute mandatory approval criteria for quasi-judicial zone changes, but rather are implemented through the zoning ordinance, and therefore if the proposed zone change is consistent with the applicable provisions of the toning ordinance, it also will be consistent with the plan. The applicant has argued that the public interest is best served by taking the subject property out of mining use. Due to increased rural residential development in the area and decreased value and demand for diatomite, the applicant argues that diatomite mining is no longer With regard to environmental issues; _hc Board lacks the expertise io determine if ncc subject jiroperty is ss d for icsicioi ial use and will look to DEQ ace! DMS to provide (his determination, C-08-"I/PA-08-1 •-- 800C DccisioO Document No_ 2009-16S Exhibit 2 Page 31 of 49 compatible with the area or desirable for the landowners. Rezoning for residential use will provide incentive and the economic resources .to clean up the aesthetic and environmental impacts of decades of mining. As noted above, the proposed plan map amendment and removal of the site from the county's inventory of significant mineral and aggregate sites are consistent with applicable plan policies and the Statewide Land Use Planning Goals. The proposed RR -10 and SMIA zoning designations are consistent with the proposed plan designations. Therefore, the proposal, so long as it is also consistent with the zoning ordinance, is consistent with the plan. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The applicant is proposing a zone change from Surface Mining to Rural Residential (RR). The purpose of the RR zone, set forth at DCC 18.60.10 is: The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character and the capability of the land and natural resources; to manage the extension of public services; to provide for public review of nonresidential uses; and to balance the public's interest in the management of community growth with the protection of individual property rights through review procedures and standards. FINDINGS: The proposed zone change is consistent with this purpose statement because re- development of the site will create a rural residential living environment consistent with the rural character and capabilities of the land and resources. To the extent existing conditions affect the carrying capacity of the land, air and water, those issues can be addressed through compliance with applicable state health and environmental quality regulations, or through compliance with the county's development standards. C. That changing the zoning will presently serve the public health, safety and welfare considering the following factors: FINDINGS: The Board finds that this section requires that a quasi-judicial rezoning must establish that changing the zoning will presently serve the public health, safety and welfare. The Board finds this analysis must include, but is not limited to, to factors described in this section. The site is currently an unused diatomite and aggregate surface mine. Prior activities on the site have in some cases adversely affected public health, safety and welfare, although some of those impacts have been ameliorated. The concerns with public health, safety and welfare arose primarily from the previous use of the western portion of the site as a hazardous waste facility. Additionally, the presence of loose diatomite on the western portion of the property raises concerns with blowing dust, as described above. The Board has conditioned this decision to address these concerns Opponents have raised limited issues with concerns about the portion of the property East of Lower Bridge Way While the Board finds no evidence of any continued public health, safety ZC-O8-"/Pjv-08-1 — BOCC Dec sion Document No 20r))-168 Exhibit 2 Page 32 of 49 and welfare concerns with the eastern portion of the property, this area has not been evaluated with respect to environmental concerns for residential use. The Board has conditioned this decision to address this concern, as described above. The Board agrees with the Hearings Officer and concludes that overall, redevelopment of the site for rural residential uses, as conditioned, will presently serve the public health safety and welfare by providing the developer with an incentive to reclaim the site. 1. The availability and efficiency of providing necessary public services and facilities. FINDINGS: All utilities are available and currently serving other nearby properties, including the RR -10 zoned subdivision to the southeast, and adequate County road frontage is available. The Board also concludes that the applicant has demonstrated that the proposed rural residential zoning will not significantly affect local transportation facilities. The Board agrees with the Hearings Officer lhat "public services and facilities' within the meaning of this standard does not include private domestic wells, individual subsurface sewage facilities or private roads. To the extent water availability and water quality fall within the category of "public services and facilities," the applicant provided evidence that it has a limited use water permit to allow for dust suppression and irrigation of re -vegetated areas. The applicant also testified and submitted evidence that its preliminary testing shows that adequate water is available to develop individual or group wells for domestic water supplies. Domestic .wells must be drilled in accordance with Oregon Water Resources Department well drilling standards, which includes a requirement that the well not inject contaminated water into an aquifer, or cause perched water to move to another aquifer. There is substantial evidence in the record to show that these standards are metbe conditions of development approval or can metthrough ..,., ..... .. ....... .. ... .. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The evidence shows that rezoning the property will not adversely impact surrounding property because residential use is consistent with the existing residential uses adjacent to the subject property, and will not increase adverse impacts on agricultural uses on other nearby properties. Several neighboring land owners testified that they supported the proposal as a means of revegotating the site and controlling dust. D. That there has been a change in circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: There have been several changes in circumstances, and new inforrnation that shows that mistaken assumptions were the premise of the current zoning. Part of the subject property was zoned Surface Mining in 1985 and the remainder in 1989. The 1985 zoning focused on only the diatomite resource, and was premised on the assumption that diatomite would be economically productive for export. At that time the property was zoned Surface Mine Reserve, and the applicable Comprehensive Pian assumed that land so designated "will ultimately be mined " The applicable Plan also lowered the burden of prcof for changing the zoning to Surface Mining because "the material here sought to be mined consists of non -aggregate materials which are rnost probably to be used for expert as there is currently 7C-98-1/PA-08-'i — BOCC Dei:o on Docuroeri No 2009-'68 Exhibit 2 Page 33 of 49 little local demand." In spite of low local demand, the Hearings Officer found that the potential to export diatomite satisfied "the need question.' Applicants were "in the process of negotiating large scale contracts for the delivery of [diatomite]" and the county found that construction of a processing plant in Malheur County would "enable exportation by the applicants." Because the site had already been used for diatomite mining, the Hearings Officer found that rezoning would simply facilitate more use and exportation of the resource. However, circumstances have changed since 1985. Because the identified global supply of diatomite will satisfy global demand for a very long time, the Lower Bridge Way site is not needed. Environmental regulation and fuel costs have increased, while profits for diatomite have decreased. Therefore, according to the applicant, mining diatomite from the site is no longer economically viable or necessary. The second rezoning, as part of the ESEE analysis for site 461, in 1989-1990 focused on the site's aggregate (as opposed to a mineral) resource. It followed the 1988 Deschutes County Goal 5 Aggregate Inventory, which identified an aggregate resource of 350,000 cubic yards. 1t is unclear from the record how this amount was estimated. In the ESEE analysis for site 461, the Board identifies the key values that form the basis for the determination of SM zoning for the mine site. These include the importance of aggregate resources to development in Deschutes County, the value to the County economy in terms of materials and jobs, the presence of an estimated 350,000 cubic yards of aggregate on the site, and that the site is located near a major roadway fo.r highway maintenance and construction jobs. Neither the mine location nor the importance of aggregate resolirce.s to Deschutes County have mine location ... t .... .... ..... ..� ..yy, .,c ... ...�-__. ._ _.. _....� .._._ changed since the last zoning of the property. However, the current estimate of aggregate resources on the property has fallen to 211,000 cubic yards. Also, the current Aggregate Resource Assessment Report indicates that the aggregate on the site does not meet ODOT specifications. This report also indicated that the aggregate resource cannot be profitably mined. These issues constitute a change in circumstances within the meaning of this criterion. ZC-08-'1JPA 08-9 - ROCC De 190 ')ocurrert No. 2009-188 Exhibit 2 Page 34 of 49 4. Chapter 18.116, Supplementary Provisions a. Section 18.116.220. Conservation Easements on Property Adjacent to Rivers and Streams Prohibitions. A. As a condition of approval of all land use actions involving property adjacent to the Deschutes River, Crooked River, Fall River, Little Deschutes River, Spring River, Pauling Creek, Whychus Creek and Tumalo Creek, the property owner shall convey to the County a conservation easement, as defined in DCC 18.04.030, "Conservation Easement," affecting all property on the subject lot which is within 10 feet of the ordinary high water mark of the river or stream. B. The form of the conservation easement shall be as prescribed by the County and may contain such conditions as the County deems necessary to carry out the purposes described in DCC 18.04.030, "Conservation. Easement." C. Any public access required as part of a conservation easement shall be subject to the following conditions: 1. Public access shall be limited to foot traffic for recreational purposes and the putting in or taking out of boats. 2. Unless otherwise permitted by the affected property owner, public access does not allow public passage through other private property fn gain arrecc fn the property subject to the conservation easement. 3. Unless otherwise permitted by state law, County ordinance or the property owner, no person on the subject property as a result of a public access requirement of a conservation easement shall deposit solid waste, damage or remove any property, (including wildlife and vegetation) maintain or ignite fires or fireworks, discharye firearms or camp. FINDINGS: The subject property is adjacent to the Deschutes River A conservation easement, as described in this criterion has been included as a condition of approval IV. DECISION This Decision is separated into two parts representing two distinct areas of the subject property: 1) the area to the East of Lower Bridge Way (together with approximately 30 acres along the river west of Lower Bridge Way; and, 2) the area West of Lower Bridge Way East Area: The Board APPROVES the request for a comprehensive plan text and map amendment and zone change from Surface Min ng to Rural Residential on the area East of Lower 7t;-08-1;PA-08-1 _. BOCC Dec:rs[on D7,curncr8 No 2009-168 Exhibit 2 Page 35 of 49 Bridge Way, together with approximately 30 acres along the river west of Lower Bridge Way (approximately 160 acres)° subject to the following conditions of approval: Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Environmental Quality (DEQ) a "No Further Action" (NFA) determination or the equivalent for a residential use designation for the 160 acres. 2. Prior to final plat approval for any residential subdivision, the applicant shall obtain from the Department of Human Services (DHS) a determination of "no apparent public health hazard" for a residential use designation for the 160 acres. 3. Prior to or contemporaneously with final plat approval for any residential subdivision, the applicant shall record a conservation easement in substantially the form attached hereto as Exhibit C and covenant (by deed or plat) to restrict in perpetuity the use of the approximately 30 -acre area to open space uses and preventing the construction of any residential structure. 4. The applicant shall not develop any area within a 100 -yard radius of the historic Lynch and Roberts Store Advertisement sign. The applicant shall post markers to prevent trespass, prior to development of the site. Any Covenants, Conditions and Restrictions (CC&Rs) created as a part of a residential development of the subject property will contain obligations to protect the area within a 100 -yard radius of the historic sign from development and trespass and to maintain the posted markers. 5. As part of any residential development approval for the site, the applicant shall inchuia an informational section in its CC&Rs that detail the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. 6. If fill is brought onto the site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. 7. Prior to final plat approval for any residential subdivision, a conservation easement as defined in Section 18.04.030, `Conservation Easement` and specified in Section 18.116.220, shall be required. 9 As more particularly described in the legal description, attached to this decision as Lxhibit A. ZC-(8-11PA-08-1 - BOCC Decision Doc. ment No. 2009 ' 68 Exhibit 2 Page 36 of 49 II. West Area: The Board FINDS that rezoning the remainder of the subject property located West of Lower Bridge Way (approximately 410 acres)t°, from Surface Mining to Rural Residential will best serve the public health, safety, welfare and convenience if certain conditions are fulfilled. Thus, the Board APPROVES the proposed rezoning subject to a resolution of intent to rezone. The resolution shall include the following conditions: The following conditions shall be included in the Resolution: 1. 1.Within five (5) years or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Environmental Quality ("DEQ') a "No Further Action"("NFA") determination or the equivalent for a residential use designation for this 410 acre area. 2. Within (5) five years or prior to final plat approval for any residential subdivision on the 410 -acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Human Services a determination of "no apparent public health hazard" for a residential use designation for this 410 acre area. Contemporaneously with the site development and prior to the issuance of any residential building permit, the applicant shall complete the County -approved reclamation of the 18 -acre area covered by SP -85-23 through a modified reclamation plan substantially consistent with the plan submitted by the applicant dated December 3, 2008. 4. The applicant shall submit a Modification Application for the modified reclamation plan within six months of the date this decision is final. 5. The date the above described decision is final shall be the date the final County decision of approval is signed and rnailed or, it the final County decision is appealed, the date the final appellate body affirms the County decision or disrnisses the appeal. 6. During the pendency of this Resolution and continuing in conjunction with the DEQ Voluntary Compliance Program and site development, the owner shall implement the DEQ approved Planting Pian dated May 20, 2008 (Exhibit PH -6 in the record) and the DEQ approved Watering Monitorng Plan dated May 20, 2008 (Exhibit PFI -7 6 in the record) as the Dust Abatement Plan for the 410 -acre site. This Resolution shall expire five (5) years from the date this approval Decision is final, unless the conditions and stipulations set forth above have been satisfied or an extension is granted pursuant to DCC 'Title 22. Upon the applicant's successful fulfillment of the above conditions and pursuant to DCC 18 136.030B, the County shall amend the County comprehensive plan As more particularly described is the legal description, attached to this decision as Exhibit B. 7C-,3 s;-1AP.A-08-1 — a0CC Decision Doc •.; lent No 2009-168 Exhibit 2 Page 37 of 49 text and map designation for the 410 acre area in accordance with this Decision from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and remove Surface Mining Site 461 from the County's Goal 5 inventory of significant mineral and aggregate resource sites and shall amend the zoning map designation for the 410 acre area from Surface Mining (SM) and Exclusive Farm Use (EFU) to Rural Residential -10 (RR -10). 9. As part of any residential development approval for the site, the applicant shall include an informational section in its CC&Rs that details the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. 10. If fill is brought onto the 410 acre site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. Dated this h of cv`‘1 , 2009 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTYREGON ATTEST: Recording Secretary Mailed this day of TAMMY BANEY, Chair DENNIS R. LUKE, Vice Chair ALAN UNGER, Commissioner 2009 THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. ZC 08-1IPA-O8-1 — E3OCC Decision Docurnen'. No. 2009-168 Exhibit 2 Page 38 of 49 Community Development Department 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co,deschutes.or,us/cdd/ CERTIFICATE OF MAILING FILE NUMBERS: ZC-08-1/PA-08-1 DOCUMENTS MAILED: BOCC Findings and Decision, Resolution of Intent to Rezone MAP AND TAX LOT NUMBERS: 14-12, Tax Lots 1501, 1502, 1503, Part of 1505, and 1600 I certify that on the 9'" day of April, 2009, the attached notice/report, dated April 9'h 2009, was mailed by first class mail, postage prepaid, to the person(s) and address(es) set forth on the attached list. Dated this 9"' day of April, 2009. COMMUNITY DEVELOPMENT DEPARTMENT By: Bend Mailing Services The Daniels Group, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 Tia M. Lewis and Mark Rust, AICP Schwabe, Williamson & Wyatt, PC 549 SW Mill View Way, Suite 101 Bend, OR 97702 Phillip Grillo Miller Nash LLP 3400 US Bancorp Tower 111 SW 5 Avenue Portland, OR 97204-3699 Linda Foster -Beard Ed Beard P.O. Box 575 Terrebonne, OR 97760 Carol Jacquet 9000 NW Lower Bridge Way P.O. Box 2088 Terrebonne, OR 97760 David Dalton PO Box 1288 Sandy, OR 97055 Diane Lozito P.O. Box 85 Terrebonne, OR 97760 Norman L. Wiegand, et al. 895 SW 23rd St. Redmond. OR 97756 Quality Serviet', Per/owned -with Pride Exhibit 2 Page 39 of 49 Hearings Officer Anne Corcoran Briggs Doug Strain 8801 N,W. 93`d Street Terrebonne, OR 97760 Marguerite Saslow P.O. Box 46 Sisters, OR 97759 Jeffrey K. Boyer 21827 Boones Borough Bend, OR 97701 David and Rebecca 70555 NW 89th PI. Terrebonne, OR 97760 Thomas E. Osborne Janet B. Even 7143 NE Juniper Ridge Rd. Redmond, OR 97756 Ronald and Wendy Calkins P.O. Box 2315 Terrebonne, OR 97760 David Jenkins P.O. Box 85 Terrebonne, OR 97760 Susan Stackhouse P.O. Box 2070 Terrebonne, OR 97760 Ingrid Smith 8764 Lower Bridge Way Terrebonne, OR 97760 Janice and Gregg Druain 70595 NW 89th PI Terrebonne, OR 97760 Connie and William Ream 70530 NW 89th PI Terrebonne, OR 97760 J. Robert Molesworth Margaret R. Beaton P.O. Box 2370 Redmond, OR 97756 Ronald and Janelle Mackay 70507 Nw 89th Pl. Terrebonne, OR 97760 Patricia J. and Renn M. IIawrence 70955 NW Lower Bridge Way Terrebonne, OR 97760 Phillip and Julianne McC'.age 21275 NW Roberts Court Terrebonne, OR 97760 Douglas and Katherine Haines 71160 Lower Bridge Way Terrebonne, OR 97760 Paul Dewey Central Oregon Landwatch 1539 NW Vicksburg Ave. Bend, OR 97701 r Jan Wilson, Staff Attorney Western Environmental Law Center 1216 Lincoln St. Eugene, OR 97401 Linda Hayes -Gorman Department of Environmental Quality 300 SE Reed Market Road Bend, OR 97702 OHO iiv ..`) ('sPC/101 (( ui11' Pi /fit Exhibit 2 Page 40 of 49 D„ ZO( — t GS' EXHIBIT A "160" acre Area Parcel 2 of Minor Land Partition, MP -80-96 , located in Section 15 and Section 16, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as Survey CS 00169, Deschutes County Surveyor Records, more particularly described as follows; Beginning at a point on the East line of said Section 16, said point being North 00°05'01" West 388.52 feet from the Southeast corner of said Section 16, as shown on said Minor Partition MP -80-96 ; Thence North 7739'52"' West 167.14 feet to the beginning of a 1689.00 foot radius tangent curve to the right; Thence Northwesterly along said curve, through a central angle of 17°32'49", an arc length of 517.26 feet, the chord of which bears North 68°53'27" West 515.24 feet; Thence North 60°07'02" West 68.98 feet, to the centerline of Lower Bridge Road as It le now located; Thence Northerly along said centerline of Lower Bridge Road to the centerline of the Deschutes River; Thence Easterly and Southerly along said centerline of the Deschutes River to the East line of the Northwest Quarter of the Southwest Quarter of said Section 15, Township 14 South, Range 12 East, Willamette Meridian; Thence South 00°09'48" East 793.36 feet along said East line to the Southeast corner of said Northwest Quarter of said Southwest Quarter of Section 15; Thence North 89°23'15" West 1315.48 feet along the South line of said Northwest Quarter of said Southwest Quarter of Section 15 to the East line of said Section 16; Thence South 00°05'01" East 969,02 feet along said East Line of Section 16 to the Point of Beginning. Together With: All that portion of the East Half of Section 16, and the Southeast Quarter of Section 9, Township 14 South, Range 12. East Willamette Meridian, Deschutes County, Oregon, more particularly described as follows: Commencing at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47 recorded as Survey CS 04248, Deschutes County Surveyor Records, and as shown on Minor land Partition MP -80-96, as per Partition Plat recorded es Surs'ey CS 00169, Deschutes County Surveyor Records, said North Quarter corner also being on the North line of Parcel 3 of said Minor Partition MP - 80 -96; Thence along said North line of said Parcel 3 the following three courses; Exhibit 2 Page 41 of 49 Thence North 39°46' East 375.00 feet; Thence North 47°20' East 300.00. feet; Thence South 73°20' East 631.85 feet to the True Point of Beginning; Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon the following eight courses; Thence South 20°56'42" West 366.00 feet; Thence South 10°31'16" West 397.00 feet; Thence South 17°31'44" West 218.00 feet; Thence South 2°16'05" West 253.00 feet; Thence South 18°11'14" East 249.00 feet; Thence South 32°05'58" East 241.00 feet; Thence South 43°12'39" East 260.00 feet; Thence South 51°57'00" East 312.00 feet; Thence leaving said "rim" South 8°34'08" West 735.00 feet; Thence South 38°35'41" West 230.00 feet; Thence South 4°48'14" East 163.00 feet; Thence South 27°35'54" East 211.00 feet; Thence South 49°17'51" East 130.00 feet; Thence North 87°33'23" East 149.00 feet; Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as It is now located; Thence Northerly and Easterly along the centerline of Lower Bridge Road(Way) as it is now located to the centerline of the Deschutes River; Thence Northerly and Westerly along the centerline of the Deschutes River to the North line of Parcel 3 of Minor Land Partition MP -80-96, as per Partition plat recorded es Survey CS 00169, Deschutes County Surveyor Records; Thence Ncrth 73°20' West 355.42 feet along said North Line to the Point of Beginning. Exhibit 2 Page 42 of 49 Excepting therefrom that portion described in deed to Central Oregon Park and Recreation District, recorded December30, 1986, in Book 139, Page 207, Deschutes County Official Records. /� ���.„,•,,..,,,,,.._, i1 LAND W R/ E WA /fbeii, api-k ;b 3 - /0-09 cis-tEGON JUNE 1, 'if.a9.f'+ KEITH 8.DA(OS7lh1O ME yen. DA -r1~; /2.3/- o7 Exhibit 2 Page 43 of 49 2o9ct -16$' EXHIBIT 3, "410" acre Area Parcel 1 of Partition Plat 1991-47, located in the West half of Section 16, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as Survey CS 04248, Deschutes County Surveyor Records; Together with the following described portion of the East half of Section 16, and portion of the southeast quarter of Section 9, Township 14 South, Range 12 East Willamette Meridian, Deschutes County, Oregon, Beginning at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47 recorded as Survey CS 04248, Deschutes County Surveyor Records, and as shown on Minor Land Partition MP -80-96, as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor Records, said North Quarter comer also being on the North line of Parcel 3 of said Minor Partition MP -80-96; Thence along said North line of said Parcel 3 the following three courses; Thence North 39°46' East 375.00 feet; Thence North 47°20' East 300,00 feet; Thence South 73`20' East 631.85 feet; Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon the following eight courses; Thence South 20°56'42" West 366.00 feet; Thence South 10°31'16" West 397.00 feet; Thence South 17°31'44" West 218.00 feet; Thence South 2°16'05" West 253.00 feet; Thence South 18°11'14" East 249.00 feet; Thence South 32°05'58" East 241.00 feet; Thence South 43'12'39" East 260.00 feet; Thence South 53'57'00" East 312.00 feet; Thence leaving said "rim" South 8°34'08" West 735.00feet; Exhibit 2 Page 44 of 49 Thence South 38°35'41" West 230.00 feet; Thence South 4°48'14" East 163.00 feet; Thence South 27°35'54" East 211.00 feet; Thence South 49'17'51" East 130.00 feet; Thence North 87°33'23" East 149.00 feet; Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way} as it is now located; Thence Southerly and Westerly along said centerline of Lower Bridge Road (Way) as it is now located, to the South line of said Section 16; Thence Westerly along said South line, to the South Quarter corner of said Section 16, said corner also being the Southeast corner of Parcel 1 of Partition Plat 1991-47; Thence North 00°23'53" West 5333.11 feet along the East line of said Parcel 1 to the Point of Beginning. ?s:1t.�1;:1"4:1 E S PROFES O:V tL 1lAVSft Stint/El/OR (1 .�,�J✓G96'3-1=fc.)tt3-/o-0, itq r KEITH 1, I)Af'.C.)STINO ; SiLi ltwrL DATE; /Z - 31,-07 Exhibit 2 Page 45 of 49 Return To: Deschutes County Planning Community Development Department 117 NW Lafayette Bend, Oregon 97702 Do,. 2009 _16,g- CONSERVATION 1t:% CONSERVATION EASEMENT This grant of conservation easement is made this day of , 2009, by and , hereinafter referred to as "Grantor(s)," in favor of DESCHUTES COUNTY, a political subdivision of the State of Oregon, (hereinafter referred to as "Grantee"). RECITALS WHEREAS, Grantor(s) is/are the sole owners in fee simple of certain real property in Deschutes County, Oregon, more particularly described as , Deschutes County, Oregon, (hereinafter referred to as "the Property"); and WHEREAS, the Board of County Commissioners has determined under the Comprehensive Plan and the Deschutes County Zoning Ordinance that by virtue of its location along the RTVer, the Property possesses or is deemed to possess certain natural, scenic and fish and wildlife habitat values associated with river corridor and riparian areas; and WHEREAS, Grantor(s) has/have applied for and received a land use permit on the Pr....erty, ..d Deschutes C�.,,..4., (`...d.. (DCC) Secti.... 18.1'16.220 ...du;..., ..i riuNotLy, 'and ucautwaw County '..vuc �u� 1 Section IegUlleJ as a condition of approval of land use permits involving property along the river that a conservation easement be entered into for a 10 -foot wide strip of land area landward from the ordinary high-water mark; NOW THEREFORE, pursuant to DCC 18.116.220, Grantor(s) hereby agree to place the restrictions and obligations contained as set forth herein on and over that portion of the Property lying within ten feet of the ordinary high water mark of the Ricer under the terms set forth herein (hereafter referred to as the "restricted area") and Deschutes County agrees to accept Grantor(s)'s grant of such restrictions. 1. Scope and Purpose. This Conservation Easement imposes restrictions and affirmative obligations an the Grantor(s) within the restricted area, The purpose of this conservation easement is to maintain and protect the natural, scenic and riparian area values within the restricted area for the protection of fish and wildlife habitat, maintenance of water quality in the river and protection of scenic views as viewed from the river. Nothing in this document shall be construed as granting a right of public access or a public access easement. 2. Restrictions an Grantor's Use of Restricted Riparian Area. Grantor(s)'s use of the restricted area shall be restricted as follows in order to protect the natural, scenic and riparian values identified in Paragraph 1: 2.1 General Use Restrictions A. Granto'(s) shall not use or occupy any portion of Me restricted area in a manner that would degrade or diminish the protected values of the restricted area, including, but not limited to: Exhibit 2 Page 46 of 49 (1) Depositing of trash, debris, garbage, or other unsightly or offensive material within the restricted area; and (2) Allowing pollutants or sediment originating from the property or the restricted area to enter the river or stream from the restricted area. B. Except upon prior written approval by the Grantee, or where applicable, the Division of State Lands and the Army Corps of Engineers, Grantor(s) shall not: (1) Cause changes in the general topography or land surface (including excavation, road construction, and the quarrying or removing of rocks, sand, dirt, gravel, or other material) within the restricted area; or (2) Cut or remove any vegetation or spray herbicides within the restricted area. Permission shall be granted for (1) removal of diseased or insect -infested trees or shrubs or of rotten or damaged trees that present safety hazards, (2) normal maintenance and pruning of trees and shrubs. Permission shall not be granted for replacement of any existing vegetation in the restricted area with lawn. C. Notwithstanding any other provision in this easement, there shall be no restriction of accepted agricultural practices. 2.2. Restrictions on Structures A. Except as provided herein no new structures of any kind, including mobile homes, shall be placed on or erected within the restricted area. Grantor(s) retains the right to perform ordinary maintenance on all existing buildings and structures within the restricted area, together with the right to replace, rebuild, or substitute any building or structure now existing with a similar building or structure to the extent allowed by the Deschutes County Zoning Ordinance. B. Except upon prior written approval by the Grantee. Grantor(s) shall not place or erect or allow to be placed or erected within the restricted area: (1) Tents, travel trailers, recreational vehicles or camping facilities of any kind; (2) Above -ground utilities, associated structures, or lines; or (3) Water pumping facilities. Approval of new water pumping facilities shall include a review of the proposed location, pumping facility design and visual and sound reducing screening for consistency with the protection of scenic, water quality and habitat values in and along the river. 3. Adminisiration and Enforcement 3.1. Nothing herein shall be construed as creating any affirmative obligations on the part of the Grantee. ervation 2 Exhibit 2 Page 47 of 49 32. Enforcement Generally A. The restrictions set forth in this easement are enforceable by Deschutes County. B. If Deschutes County determines that Grantors are in violation of the terms of this easement or that such a violation is threatened, then Deschutes County shall give written notice to Grantor(s) of such violation and demand corrective action to cure the violation and, where the violation involves injury to the restricted area resulting from any use or activity inconsistent with the purpose of this easement, to restore the portion of the restricted area so injured. C. If Grantor(s) fail/s to cure the violation within 30 days after receipt of notice thereof or under circumstances where the violation cannot reasonably be cured within a 30 -day period, fails to begin curing such violation within the 30 -day period, or fails to continue diligently to cure such violation, Deschutes County may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to abate any condition created in the restricted area in violation of this easement. 3.3 No delay or omission by Deschutes County in the exercise of any right or remedy upon any breach by Grantor(s) will impair such right or remedy or be construed as a waiver. 3.4. Enforcerent actions under this easement may be taken only against an Owner having fee title to the restricted area, any person having a possessory right under an Owner, and any agent, operator or contractor acting under the authority of such Owner or holder of such possessury rights. A Mol d ee Shall be subject to enforcement actions only when Mortgagee takes ownership of the property by foreclosure or otherwise. 3.5. In addition to the remedies set forth under Paragraph 3.2 above, Deschutes County may treat any violation of this easement as a nuisance under current §18.144.040 of the Deschutes County Code (or any comparable successor provision of the Deschutes County Code) and a violation under current §18.144.050 (or any comparable successor provision of the Deschutes County Code). 4. Assignment. Deschutes County may assign any right or interest it may have in this easement only upon consent of the Grantor(s). 5. Extinguishment. This easement shall be extinguished only in the event that Grantor(s) chooses to abandon the land use approval under which this easement is a condition. 6. Successors. The covenants, terms, conditions, and restriction of this easement shall be binding upon, and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors, and assigns, and all who take through them, whether by voluntary or involuntary transfer, and shall continue as a servitude running in perpetuity with the Property. Dated this day of 2009 DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT Nick Lelack, Planning Director Nm,;snrva 3 Exhibit 2 Page 48 of 49 STATE OF OREGON ) ) ss. COUNTY OF DESCHUTES ) On this day of , 2009, before me, a Notary Public, personally appeared Nick Lelack, the above named Planning Director of Community Development of Deschutes County, who acknowledged the foregoing document on behalf of Deschutes County, Oregon. Notary Public for Oregon My Commission Expires: Dated this day of , 2008. GRANTORS: STATE OF OREGON COUNTY OF ) ss. On this day of , 2008, before me, a Notary Public in and for said County and State, personally appeared the within named and , who is/are who is known to me to be the identical individuals described in the above document, and who acknowledged to me that he/she/they executed the same freely and voluntarily. STATE OF COUNTY OF ) ss. Notary Public for My Commission Expires: On this day of , 2008, before me, a Notary Public in and for said County and State, personally appeared the above named known to me to be the of said corporation and who executed the above document on behalf of said corporation. File No.: Notary Public for My Commission Expires. Corisen+atitm; 4 Exhibit 2 Page 49 of 49 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON A Resolution of Intent to Rezone a Portion of the Property at 70420 NW Lower Bridge Way, Terrebonne from Surface Mine to Rural Residential 10 RESOLUTION NO. 2009-035 WHEREAS, the Daniels Group, LLC applied to change the zoning from surface Mining (SM), Exclusive Farm Use — Lower Bridge Subzone (EFU-LB) to Rural Residential 10 (RR -10) for property described in Exhibit "A" and shown in Exhibit "B", attached and incorporated by reference herein; and WHEREAS, the Board of County Commissioners ("Board") conducted public hearings on December 3, 2008, December 17, 2008 and December 29, 2008, 2009 and approved the zone change for the 410 acre portion of the subject property as described in the Findings and Decision, attached as Exhibit "C" and incorporated by reference herein, subject to the fulfillment of specific conditions prior to rezoning the property; and WHEREAS, the Deschutes County Code Section 18.136.030 allows the Board to adopt a Resolution of Intent to Rezone which defers the adoption of effecting ordinances to a future date once certain clear and objective conditions are met; now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY CDMMISSIONERS OF DESCHUTES COUNTY, OREGON, as follows: Section 1. The Hoard intends to rezone the property described in Exhibit "A" and shown in Exhibit "B" to RR -10 upon the fulfillment of the following conditions: 1. Within five (5) years of the date the decision in Exhibit C is final or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1fPA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Environmental Quality ("DEQ") a "No Further Action"("NFA") determination or the equivalent for a residential use designation for this 410 acre area. 2. Within (5) five years of the date the decision in Exhibit C is final or prior to final plat approval for any residential subdivision on the 410 acre area that is the subject of File No. ZC-08-1/PA-08-1, whichever is earlier, the applicant shall obtain from the Oregon Department of Human Services a determination of "no apparent public health hazard" for a residential use designation for this 410 acre area. 3, Contemporaneously with the site development and prior to the issuance of any residential building permit, the applicant shall complete the County -approved reclamation of the I 8 -acre area covered by SP -85-23 through a modified reclamation plan substantially consistent with the plan submitted by the applicant dated December 3, 2008. 4. The applicant shall submit a Modification Application for the modified reclamation plan within six months of the date the decision in Exhibit "C" is final. PAUL 1 OF 2 — RESOLUTION NO. 2009-035 (4/6/09) Exhibit 3 Page 1 of 5 5. For the purposes of these conditions, the date the decision in Exhibit C is final shall be the date the final County decision of approval is signed and mailed or, if the final County decision is appealed, the date the final appellate body affirms the County decision or dismisses the appeal. 6. During the pendency of this Resolution and continuing in conjunction with the DEQ Voluntary Compliance Program and site development, the owner shall implement the DEQ approved Planting Plan dated May 20, 2008 (Exhibit PH -6 in the record for Exhibit "C") and the DEQ approved Watering Monitoring Plan dated May 20, 2008 (Exhibit PH -7 6 in the record for Exhibit "C") as the Dust Abatement Plan for the 410 -acre site. 7. This Resolution shall expire five (5) years from the date this approval Decision is final , unless the conditions and stipulations set forth above have been satisfied or an extension is granted pursuant to DCC Title 22. 8. Upon the applicant's successful fulfillment of the above conditions and pursuant to DCC 18.136.0308, the County shall amend the County comprehensive plan text and map designation for the 410 acre area in accordance with the Board Decision (Exhibit "C") from Surface Mine (SM) and Agriculture (AG) to Rural Residential Exception Area (RREA) and remove Surface Mining Site 461 from the County's Goal 5 inventory of significant mineral and aggregate resource sites and shall amend the zoning map designation for the 410 acre area from Surface Mining (SM) and Exclusive Farm Use (EFU) to Rural Residential -10 (RR -10). 9. As part of any residential development approval for the site, the applicant shall include an informational section in its CC&Rs that details the history of the site, including the remediation efforts taken by the applicant and its predecessors in interest. 10, If fill is brought onto the 410 acre site, the applicant shall identify the general location of the fill, and if the site is used for development, the applicant shall either certify that the fill is suitable for development, or specifically declaim any knowledge of its suitability. Dated this of r' t , 2009 TEST: Recording Secretary PAGE 2 of 2 — RESOLUTION NO. 2009-035 (4/6/09) BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, Chair DENNIS R. LUKE, Vice Chair ALAN UNGER, Commissioner Exhibit 3 Page 2 of 5 2,cs 2v0°1-035 EXHIBIT ,% "410" acre Area Parcel 1 of Partition Plat 1991-47, located In the West half of Section 16, Township 14 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, as per Partition plat recorded as Survey CS 04248, Deschutes County Surveyor Records; Together with the following described portion of the East 'half of Section 16, and portion of the southeast quarter of Section 9, Township 14 South, Range 12 East Willamette Meridian, Deschutes County, Oregon, Beginning at the North quarter corner of said Section 16 as shown on Partition Plat 1991-47 recorded as Survey CS 04248, Deschutes County Surveyor Records, and as shown on Minor Land Partition MP -80-96, as per Partition Plat recorded as Survey CS 00169, Deschutes County Surveyor Records, said North Quarter corner also being on the North line of Parcel 3 of said Minor Partition MP -80-96; Thence along said North line of said Parcel 3 the following three courses; Thence North 39°46' East 375.00 feet; Thence North 47°20' East 300.00 feet; Thence South 73°20' East 631.85 feet; Thence leaving said North line, and along the approximate westerly "rim" of the Deschutes River canyon the following eight courses; Thence South 20°56'42" West 366.00 feet; Thence South 10°31'16" West 397.00 feet; Thence South 17°31'44" West 218.00 feet; Thence South 2°16'05" West 253.00 feet; Thence South 18011'14" East 249.00 feet; Thence South 32°05'58" East 241.00 feet; Thence South 43°12'39" Fast 260.00 feet; Thence South 51°57'00" East 312.00 feet; Thence leaving said "rim" South 8°34'08" West 735.00 feet; Exhibit 3 Page 3 of 5 Thence South 38°35'41" West 230.00 feet; Thence South 4°48'14" East 163.00 feet; Thence South 27°35'54" East 211.00 feet; Thence South 49°17'51" East 130.00 feet; Thence North 87°33'23" East 149.00 feet; Thence North 57°05'52" East 304.00 feet plus or minus to the centerline of Lower Bridge Road (Way) as it is now located; Thence Southerly and Westerly along said centerline of Lower Bridge Road (Way) as it is now located, to the South line of said Section 16; Thence Westerly along said South line, to the South Quarter corner of said Section 16, said corner also being the Southeast corner of Parcel 1 of Partition Plat 1991-47; Thence North 00°23'53" West 5333.11 feet along the East line of said Parcel 1 to the Point of Beginning. Pf O ESS(ONAL LAND SURV YO€3 H 0qtry4 .3 -10 -07 OREGON .!UNE: 1, '1:39:3 KEITH S. DA(OST#NO L. 238,? ,,,_,_, �,_ KNOWN- DAM tz- 3&07 Exhibit 3 Page 4 of 5 R 2.0061 -o3S Cx1-rusrT 13 NORTH LINE PARCEL 3 MP -80-06 9 9 _ _N �3_Q _ _. Liz5 .. 17 16 N 34 CORNER SEC. 16 r - BOUNDARY - 10' WEST OF TER LINE DESCHUTES RIVER 9 10 5 UTES RIVER I ED BK.139, PG.207 SEE SHEET 2 OF 2 "4IQRACR PARCEL 1 PARTITION PLAT 1991.47 CS 04248 h w EAST UNE NW % 5 PARCEL 3 MP -80-98 0300f69 17 16 (LOWER BRIDGE WAY 2202.1 SOUTH LINE SEC.16 LINE TABLE LINE LENGTH BEARING LI 375.00 N39°46'00'E N47'20'00'E L2 300.00 L3 987.27 S73°20'00'E L4 793.36 N00'09'48'W L5 969.02 N00'05'01'W L6 388,52 NO2•05'01'W L7 167.14 1,177439'528)W L8 68.98 N60°07'02'W ALL D:MENSIONS IN FEET 8) S Y4 CORNER L1 CI ,r SEC16 IROAO3 ✓� SOUTH LINE NW Y.sw14 80(' 8l CURVE TABLE CURVE. LENGTH RADIUS DELTA (CHCIRD 17°32'49'( 535,24 BEARING N68'53'27"W C1 537.26 1689.00 m y 0 N DESIGNED: KS0 DRE WN BY. ARS APP'D BY: KSD CHECK'D BY! KSt3 LAS EDIT:03/09/09 PLOT 0.4763.7/09/0.9 THE DANIELS GROUP, LLC LOWER BRIDGE ROAD PROPERTY EXHIBIT MAP DESCHUTES OREGON SCALE: 1"-1000' PROJECT: DANODI DRAWING FILE NAME: DAN001--CONCEPT-PLAN-3.09.O$ D'AgostuIo Parker, LLC c.vn MW SO.:nG I UrJ KNMOes[� 231 SCALEIIOUSE LOOP, SUITE 203 BEND, OR97 02 P: (540 372.8807 F: 15411322-3827 Exhibit 3 Page 5 of 5 { Community Development Department Planning Division Building Safety Division Environmental Soils Division April 7, 2014 P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes,or.us/cdd/ Lower Bridge Road, LLC David Fuhrer, Chief Financial Officer 205 E. 11th Street, Suite 200 Vancouver, WA 98660 Re: E-14-6; Extension of Applications PA-08-1/ZC-08-1 on Property Identified on Deschutes County Assessor's Map 14-12 as Tax Lot 1501 Dear Mr. Fuhrer: The Planning Division has reviewed your request for an extension of applications PA -08-1/ ZC-08-1 against the criteria contained in Section 22.36.010(C) of the Deschutes County Code (DCC). Based on the burden of proof statement submitted with the application, it is staff's opinion the request satisfies all applicable criteria for approval. This extension will allow a one-year extension of PA-08-1/ZC-08-1 to April 9, 2015. PLEASE NOTE: This is your first extension. You are eligible for two additional one-year extensions and one additional two-year extension pursuant to DCC 22.36.010(C)(3). The approval granted under PA-08-1/ZC-08-1 will expire on April 9, 2015 unless the use is initiated or further extended. If you have any questions regarding this matter, please feel free to contact me at (541) 385-1401. Sincerely, DESCHUTES COUNTY PLANNING DIVISION evin Harrison, Principal Planner Quality Services Performed with Pride Exhibit 4 Page 1 of 1 REVIEWED LEGAL COUNSEL DESCHUTES COUNTY OFF1CIPL RECORDS C} 2 ryo���+69 NRHCY dLANKEN5HXP, COUNTY CLERK J } COMMISSIONERS' JOURNAL 10/29/2015 01:10:22 PM 1VJLI(IllhI1IiIt1lII1 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Extending Resolution of Intent to Rezone 2009-035. * ORDER NO. 2015-027 WHEREAS, the Board resolved to rezone certain real property identified by Exhibits A and 13 to Resolution 2009-035 upon the fulfillment of the ten conditions listed in Resolution 2009-035; and WHEREAS, Condition #7 of Resolution 2009-035 specified the Resolution of Intent to Rezone would expire in five years unless extended; and WHEREAS, the resolution was extended in 2014 for one year; and WHEREAS, Deschutes County Code ("DCC") 18.136.030(13) allows the extension of a Resolution of Intent to Rezone by the Board; and WHEREAS, although the above DCC provision does not list any criteria for the extension, the Board has given due consideration as to whether to extend Resolution 2009-035; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board hereby extends the expiration date of Resolution 2009-035 to October 26, 2017. Dated this 4 of OC , 2015 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Recording Secretary Page 1 of 1 — ORDER NO. 201.5-027 ANTHONY DeBONE, Chair (Le&u- ALAN UNGER, Vice Chair TAMMY BANEY, Coro ssioner Exhibit 5 For Recordin Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Extending Resolution of Intent to Rezone 2009-035. ORDER NO. 2017-043 WHEREAS, the Board resolved to rezone certain real property identified by Exhibits A and B to Resolution 2009-035 upon the fulfillment of the ten conditions listed in Resolution 2009-035; and WHEREAS, Conditions 1, 2, and 7 of Resolution 2009-035 specified the Resolution of Intent to Rezone would expire in five years unless extended; and WHEREAS, the resolution was extended in 2014 for one year; and WHEREAS, the resolution was extended in 2015 for two years; and WHEREAS, Deschutes County Code ("DCC") 18.136.030(B) allows the extension of a Resolution of Intent to Rezone by the Board; and WHEREAS, although the above DCC provision does not list any criteria for the extension, the Board has given due consideration as to whether to extend Resolution 2009-035; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. 2019. j� Dated this of l.J(- , 2017 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON The Board hereby extends the expiration date of Resolution 2009-035 to October 26, Page 1 of 1 — ORDER NO. 2017-043 I � t TAMMY BANEY, ChairN) ANTHONY DEBONE, Vice Chair PHILIP G. HEND ` RSON, Commissioner Exhibit 6 Page 1 of 1 PUBLIC HEALTH DIVISION Environmental Public Health Section Kate Brown, Governor Will Groves Senior Planner Deschutes County Community Development PO Box 6005 117 NW Lafayette Ave. Bend, OR 97708-6005 June 30, 2017 Dear Mr. Groves, [Oi'gt:tll eat Atithorit 800 NE Oregon Street, Suite 640 'Portland, OR, 97232 Enter "Voice" and phone number or delete The Oregon Public Health Division's Environmental Health Assessment Program (EHAP) has reviewed the Remedial Investigation Report (dated November 29, 2016) and the Final Clean-up Report (dated March 17, 2017) related to the former diatomaceous earth mine located at Lower Bridge Road in Terrebonne, Oregon. In May 2008, the late Senator Ben Westlund petitioned EHAP to conduct a Health Consultation related to this site. EHAP released a public comment version of the requested Health Consultation in October of the same year and a final version on April 8, 2009. This report is available online at www.healthoregon.org/ehap. In the 2009 Health Consultation, EHAP concluded there were physical hazards posed by dilapidated structures and debris piles, and an indeterminate public health hazard from cristobalite and inhalation of airborne dust from the site. The indeterminate public health hazard determination was the result of a lack of environmental sampling data to adequately evaluate the cristobalite and airborne dust pathway of potential human exposure. At the time, EHAP concluded that all other exposure pathways (soil and groundwater) posed no apparent public health hazard. EHAP recommended removal of physically dangerous structures and debris and additional environmental sampling to provide data enabling EHAP to better evaluate health risks from cristobalite and airborne dust. Following release of the report in 2009, the Deschutes County Planning Commission adopted EHAP's recommendations from the report as a condition of their decision to rezone the site from industrial to rural residential. Since the release of the 2009 Health Consultation, structures and debris piles have been removed and additional environmental sampling data have been collected and analyzed. The 2016 and 2017 remedial investigation and clean-up reports, mentioned above, document that cristobalite concentrations in the soil on all portions of the site are similar to native soils in the area. This indicates that hazards from airborne dust originating from the site are no more dangerous than airborne dust originating from anywhere else in the region. Measured concentrations of contaminants in soil, groundwater, and air are too low to harm the health of potential future residents living on the site. Therefore, EHAP is revising all conclusions related to the former diatomaceous earth mine located at Lower Bridge Road to no apparent public health hazard for residential use as currently proposed by Mr. Greg Daniels. Exhibit 7 Page 1 of 2 Respectfully, P' Julie Early Sifuentes, M.S. Program Manager, Assessment and Planning Unit Environmental Public Health Section Public Health Division Oregon Health Authority Exhibit 7 Page 2 of 2 OWgon Yaw (.crown, Governor August 11, 2017 Mr. Greg Daniels Lower Bridge Road, LLC 1111 Main Street, Suite 700 Vancouver, WA 98660 Department of Environmental Quality Eastern Region fiend Office 475 NE Bellevue Drive, Suite I10 Bend, OR 97701 (591)388-6146 FAX (541) 388-8283 rrY 711 RE: - No Further Action Determination for Lower Bridge Road - East Parcels, ECSI # 4950 Dear Mr. Daniels: The Oregon Department of Environmental Quality (DEQ) has completed a review of the information submitted to DEQ on your behalf regarding tax lots 1412000001505 and 1412150000500 (totaling 113 acres), and portions of tax Lot 1502 (totaling 29 acres). DEQ has determined that no further action is required. This determination is based on the DEQ regulations and the facts as we now understand them including, but not limited to the following: The site consists primarily of that portion of the former Oreinite mine site east of Lower Bridge Road, This 113 -acre area was previously used for aggregate mining and hot -mix asphalt plant operations. Diatomite mining and processing was conducted on an adjacent Larger property on the west side; of Lower Bridge Road. Of the two parcels west of Lower Bridge Road, which total 29 acres, the northern of the two appears to be undeveloped.. The southern parcel was part of the diatomite mining and processing operation. The two western parcels are not intended for future development, but are included to meet the open space requirements for the proposed residential development east of the road. Groundwater is present in an unconfined, upper alluvial aquifer approximately 75 to 100 feet below ground surface, and in a lower confned-seri-confined alluvial aquifer at depths of 225 to 250 feet below ground surface. The upper aquifer is the source of springs in the Deep Creek Canyon area northwest of the site. The lower aquifer is proposed as a residential water supply for the site. Investigation and cleanup activities at this site included testing and removal of asbestos containing materials and petroleum contaminated soil on the parcels east of Lower Bridge Road. Debris was removed from the southern of the two parcels west of the road. Exhibit 8 Page 1 of 3 The portion of the site covered by this No Further Action determination is shown on the attached figure. Based on the available information, environmental conditions are currently protective of public health and the environment. The site requires no additional action under Oregon Administrative Rules (OAR) 340-122.0010 through 340-122-0140 unless new or previously undisclosed information becomes available, or there are changes in site development or land and water uses, or more contamination is discovered. DEQ has updated the Environmental Cleanup Site Information (ECSI) database to reflect this decision. A copy of key documents including the staff report supporting this No Further Action decision can be viewed at littp://www.oregongovideq/Hazards-and-Cleanup/env-cleanu )/Pa es/ecsi.as x. Select "Search Complete SCSI database" and enter site number 4950. DEQ recommends keeping a copy of all of the documentation associated with this remedial action with the permanent facility records. If you have any questions, please contact Bob Schwarz at 541-298- 7255, extension 230, or by email at schwarz.bob(ixdeq.state.or.us. Sincerely, David Anderson Eastern Region Cleanup, Emergency Response, Hydrogeology Manager Attachment (1) Copies: Bob Schwarz, DEQ, The Danes Scott Wallace, The Wallace Group (by email) SCSI # 4950 file Exhibit 8 Page 2 of 3 wallaceGRouP SITE MAP REMEDIAL TNVESTIGAT1ON REPORT LOWER BRIOOEROAn, CLC : ECM tt4950 LOWER WER ORtMGE ROAI TtRRrriONNE, OREGON Area covered by the NEA determination rnwceow. -, 2 Exhibit 8 Page 3 of 3 August 2, 2019 Ms.Tia Lewis Schwabe, Williamson & Wyatt 360 SW Bond Street, Suite 500 Bend, OR 97702 Subject: Lower Bridge Road, LLC West Parcel Work Progress Report Lower Bridge Road Deschutes County, Oregon Wallace Group Project No. 10994 (2) wai aceGRouP goosystem experts Dear Ms. Lewis: Since DEQ approval of the Remedial Investigation Workplan on December 14, 2018, Wallace Group has begun remedial investigation (RI) and cleanup of three tax lots encompassing approximately 401 -acres west of Lower Bridge Road in Deschutes County, Oregon. The RI and cleanup are being conducted under the Oregon Department of Environmental Quality's (DEQ's) Voluntary Cleanup Program (ECSI #4950). We understand that as part of Deschutes County's re -zoning process and/or schedule, a progress report on the environmental assessment and cleanup work is required at this time. This letter provides a summary of environmental assessment work completed west of Lower Bridge Road since December 2018. Site characterization work for the RI: • Secure access to the water tower, concrete slab and water well areas - This work was completed in April and May of 2019. • Cleanup, removal and disposal of miscellaneous debris - The debris removal was completed in April of 2019. Evaluation and cleanup of the areas is ongoing, but preliminary soil sampling and organic vapor analyzer (OVA) screening was conducted in June 2019. • Steel water pipe coating evaluation - The coatings were found to contain asbestiform fibers and were abated by a licensed asbestos remediation contractor in May of 2019. • Burned debris pile evaluation — This evaluation and cleanup was completed concurrently with the miscellaneous debris cleanup and disposal operations in April and May of 2019. TWG19L050.doc 1 of 3 August 2, 2019 82915 NE 18., ,i_, ;tiiti 1, Bend, 02 07701 p 541 .382.4207 f 1 54'1.383 8118 wallas a,roup-in;.com Exhibit 9 Page 1 of 3 • Deep Canyon embankment fill — This evaluation was completed on June 4, 2019, and the fill appears to contain inert metal debris and soil. • Regulatory and data review of the former hazardous -waste lagoon — This review is ongoing and will be submitted in the RI and cleanup report. • Existing groundwater source testing - This was completed in July 2019, with laboratory results pending. A new groundwater monitoring well was completed on August 2, 2019 to evaluate an upper, unconfined alluvial aquifer and lower confined and/or semi - confined alluvial aquifer. Water samples were obtained from the lower aquifer on August 2, 2019, with laboratory results pending. • Hazardous waste or petroleum contaminated soil (PCS) - Any soil or debris meeting hazardous waste or PCS criteria will be removed and disposed of by a licensed contractor. These findings and results will be summarized and submitted in the RI and cleanup report. Airborne dust and asbestiform monitoring were previously performed on the east parcel during RI field work in August 2016. This work was conducted during periods when prevailing winds were from the north-northwest to assess whether dust originating on the west parcel contained respirable silica dust or asbestos fibers above Occupation Safety and Health Administration (OSHA) permissible exposure limits (PELs). Airborne dust monitoring did not detect respirable silica or asbestos fibers above their respective OSHA PEL, Wallace Group will complete the RI and cleanup report, as appropriate, and respectfully request a No Further Action Determination (NFA) and Determination of No Apparent Health Hazard. We anticipate submitting a draft of the RI to the DEQ and OHA by mid-September of 2019. TWG19L050.doc 2 of 3 August 2, 2019 6291:1 NE 13"St., Suite 1, fiend, OR 97701 p 1 541.382A70/ f 1 5411.383.8118 Wa Iup-inc.coni Exhibit 9 Page 2 of 3 We trust this summary meets the current land -use needs of the property owner, Lower Bridge Road, LLC, and Deschutes County. Please contact our Bend office if we can provide any additional information. Respectfully submitted, WALLACE GROUP, INC. Stephen M. Woodward, R.G. Staff Geologist " Shane Cochran, R.G. Project Geologist TWG19L050.doc 3 of 3 August 2, 2019 62915 Nli. ]8111St., Suite ], Bend, 00 9770] p i 541.382,4707 f i 541.383,8]18 wallacegroup-inc.com Exhibit 9 Page 3 of 3 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 BOCC Monday Meeting of October 21, 2019 DATE: October 15, 2019 FROM: Nicole Mardell, Community Development, TITLE OF AGENDA ITEM: Preparation for Public Hearing: Flood Plain Amendments BACKGROUND AND POLICY IMPLICATIONS: The Board is conducting a work session on October 21, 2019 in preparation for a public hearing on November 6, 2019. The Board will consider a text amendment to incorporate elements from the Department of Land Conservation and Development (DLCD)'s 2014 Oregon Model Rood Damage Prevention Ordinance ("Model Flood Ordinance") into the Flood Plain chapter of the Deschutes County Code. FISCAL IMPLICATIONS: None. ATTENDANCE: Nicole Mardell, Associate Planner MEMORANDUM TO: Deschutes County Board of County Commissioners ("Board") FROM: Nicole Mardell, Associate Planner DATE: October 14, 2019 SUBJECT: Model Flood Amendments (247 -19 -000530 -TA / 533 -PA) - Work Session CC) M i1F L The Board is conducting a work session on October 21, 2019 in preparation for a public hearing on November 6, 2019. The Board will consider a text amendment to incorporate elements from the Department of Land Conservation and Development (DLCD)'s 2014 Oregon Model Rood Damage Prevention Ordinance ("Model Flood Ordinance") into the Flood Plain chapter of the Deschutes County Code. I. PROPOSAL Deschutes County, through File Nos. 247 -19 -000530 -TA / 533 -PA, is amending the Deschutes County Inning Ordinance and Comprehensive Plan to incorporate text from the Model Flood Ordinance. The Model Flood Ordinance is a statewide standard and includes requirements for critical facilities, accessory structures, and storage in the Flood Plain Zone, among other items. Staff is proposing these amendments to ensure consistency among local and state requirements and to promote best practices in hazard mitigation. Staff is also proposing to add a purpose statement for the Flood Plain Zone in the Comprehensive Plan, as one does not currently exist. The Model Flood amendments are one of three separate applications proposed as part of the 2019 Flood Plain Amendment package. The status of the two other related amendments are as follows: • The Planning Commission recommended tabling the amendment related to the use of Flood Plain zoned land in Cluster and Planned Unit Developments until the Lower Bridge Planned Unit Development application, presently under appeal, receives an acknowledged decision) • The Planning Commission is still deliberating on the amendment related to the division of split zoned property containing Flood Plain zoning. 1 247 -19 -000405 -CU, 406 -TP, 407 -SMA, 741-A, 757-A 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 j P.O. Box 6005, Bend, 09 97708-6005 (541) 388-6575 cddndesc Butes .org wwwnLdeschut:es.org/cci II. PLANNING COMMISSION HEARINGS The Deschutes County Planning Commission held public hearings on August 8, September 12, and September 26, 2019. Approximately twenty-four individuals provided oral and/or written testimony. The vast majority of comments received were general comments directed at all three amendments in the 2019 Flood Plain Amendment package. Individuals expressed concerns that the changes to the Flood Plain zone would negatively impact fish and wildlife resources, which are a staple of Deschutes County quality of life. Staff received specific comments for the Model Flood Amendments from the following individuals: • DLCD Natural Hazards Planner, Katherine Daniels, noted the 2019 version of the Model Ordinance was soon to be adopted. She also provided minor edits to the draft text amendments, which have been incorporated into the final version. • Central Oregon LandWatch and attorney Tim Ramis expressed concerns over new uses being allowed in the Flood Plain Zone. Staff further clarified in the drafted text that structures outside the Special Flood Hazard Area are exempt from floodproofing and Special Construction standards consistent with Federal Emergency Management Agency standards. • Oregon Department of Fish and Wildlife expressed concerns that the draft purpose statement for the Flood Plain Zone in the Comprehensive Plan prioritized the Flood Plain Zone's role as a hazard mitigation tool. They believe this language could undermine the Flood Plain Zone's role as a Goal 5 resource and protection measure. Staff removed the words "Primary Role" and "Secondary Role" to address these concerns. On October 10, 2019 the Planning Commission voted unanimously to recommend approval of the proposed Model Flood Amendments, with the edits outlined above. III. NEXT STEPS The Board will hold a public hearing for the Model Flood Amendments on November 6, 2019. ATTACHMENTS 1. Staff Findings 2. Proposed Text Amendments 3. Proposed Comprehensive Plan Amendments File No 247-19-000530-TA/533-PA Model Flood Amendments Page 2 of 2 FINDINGS - MODEL FLOOD ORDINANCE Revised 10.03.19 I. SUMMARY Deschutes County, through File No. 247 -19 -000530 -TA / 533 -PA is amending the Deschutes County Zoning Ordinance and Comprehensive Plan to incorporate text from the Department of Land Conservation and Development (DLCD)'s 2014 Oregon Model Flood Damage Prevention Ordinance. The purpose of incorporating these changes is to provide greater consistency between local land use approvals and state requirements. II. 2017-2018 FLOOD PLAIN AMENDMENT PROCESS Between March 2017 and September 2018, Deschutes County planning staff initiated a Post Acknowledgement Plan Amendment (PAPA) to DLCD related to flood plain amendments to the County Comprehensive Plan and Zoning Ordinance. Staff conducted public outreach through four open houses, five Planning Commission public hearings, two citizen involvement meetings, and one Board of County Commissioners (Board) hearing. On September 19, 2018, the Board adopted Ordinance 2018-005, reflecting large scale changes to the Flood Plain Zone, including a proposal to change the Base Zone to a Combining Zone, and proposed text changes to clarify procedures on cluster developments and land divisions on property zoned Flood Plain. The ordinance was then appealed to the Land Use Board of Appeals, on the basis that the findings were incomplete and did not adequately address State Land Use Planning Goal 5, among other Tess substantial issues. Prior to the LUBA hearing and in consultation with County legal counsel, the Board found the need for substantial record additions. On May 8, 2019, the Board opted to repeal Ordinance No. 2018-005 (Ordinance 2019-010), and initiate a new PAPA. This County initiated application is specific to the Model Flood Ordinance edits to the Deschutes County Zoning Code and Comprehensive Plan. III. NATIONAL FLOOD INSURANCE PROGRAM (NFIP) The National Flood Insurance Program (NFIP) is based on a mutual agreement between the federal government and Deschutes County. Federally backed flood insurance is made available in Deschutes County, provided that the County agrees to regulate development in mapped Flood Plains. So long as Deschutes County serves its role in ensuring future Flood Plain development meets certain criteria, FEMA provides subsidized flood insurance for properties in rural Deschutes County. FEMA has prepared a Flood Plain map and flood hazard data for Deschutes County. The NFIP underwrites flood insurance coverage only in those communities that adopt and enforce Page 1 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) Flood Plain regulations that meet or exceed NFIP criteria. The County's Flood Plain regulations are designed to meet FEMA regulations and to ensure that new buildings will be protected from the flood levels shown on the FEMA -provided Flood Insurance Rate Map (FIRM) and that development will not make the flood hazard worse. Beginning in 1988 Deschutes County adopted the FIRM as the Flood Plain Zone and also adopted Comprehensive Plan policies and implementing zoning code to comply with FEMA requirements. These maps, policies, and zoning code have been periodically updated to match the latest information and requirements provided by FEMA. It is important to note that the FIRM maps and FEMA regulations explicitly recognize that the mapped Flood Plain is subject to refinement. The map does not capture property -specific topographic details and FEMA regulations allow the County to waive FEMA requirements, such as special construction standards, where development is located above the Base Flood Elevation. IV. 2019 PROPOSED AMENDMENTS The proposed amendment are included as Exhibits A -C. Text changes in the exhibits are identified by underline for new text and strikethrough for deleted text. Below are explanations of the proposed changes. A. Title 18, Zoning Text Amendments Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS The proposed amendments incorporate terminology related to current best practices included in the 2014 Oregon Model Flood Damage Prevention Ordinance (Exhibit A). Chapter 18.96. FLOOD PLAIN ZONE The proposed amendments in Exhibit B include: • Section 18.96.080. Criteria to Evaluate Conditional Uses o 18.96.080(B): Clarifies other state and federal agencies that are involved in the alteration and relocation of a water course shall be notified. o 18.96.080(D)(3): Provides reference that on-site waste disposal systems shall be located consistent with the Oregon Department of Environmental Quality as specified in Oregon Administrative Rule (OAR) 340-071. o 18.96.080(E)(4): Provides exception to the submission of flood elevation data if the proposal expressly precludes residential and non-residential construction in the flood plain area. Page 2 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) o 18.96.080(G)(2): Requires a comprehensive Maintenance Plan for nonresidential construction and an Emergency Action Plan (EAP) for the installation and sealing of the structure. o 18.96.080(G)(3): Provides relief from elevation or floodproofing requirements for small accessory structures that are less than 200 square feet in area, one story, not temperature controlled, not used for human habitation, and several other use and design standards. This recognizes that the risk to human safety and property loss is relatively low for these structures and the additional design and cost associated with elevation and floodproofing is not warranted under these specific conditions and criteria. o 18.96.080(G)(4) Reformats the standards applicable to manufactured dwellings and the section is renumbered due to addition of new section (G)(3). o 18.96.080(G)(5): Renumbered due to addition of new section (G)(3). o 18.96.080(G)(6): Renumbered due to addition of new section (G)(3). o 18.96.080(G)(7): Requires construction of new critical facilities shall be, to the extent possible, located outside the limits of the Area of Special Flood Hazard. "Critical Facility," as ed means a facility which even chance of "Critical Facility.," proposed, means icu� i� a facility for which � �. v...� � a slight chance ....- ... flooding might be too great. Critical facilities include, but are not limited to schools, nursing homes, hospitals, police, fire and emergency response installations, installations that produce, use or store hazardous materials or hazardous waste. The purpose of this amendment is to prevent loss of or damage to these critical facilities due to flooding and increase likelihood the facilities are available during and after a flood event. o 18.96.080(G)(8): Relocates standards applicable to incidental storage of materials or equipment from section 18.96.040 and regulates the use as "flood plain development," a conditional use. • Section 18.96.130. Interpretation of FIRM Boundaries o Exempts uses and structures determined to be outside of the Special Flood Hazard Area from special construction standards. Page 3 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) B. Comprehensive Plan Amendments Text Amendment to Comprehensive Plan, Chapter 2, Section 2.5 - Water Resources. The proposed amendments (Exhibit C) includes the addition of the flood plain zone purpose statement. The statement identifies the purpose is to promote the public health, safety, and general welfare, and minimize losses due to flood conditions in specific areas. Chapter 2, Section 2.5 - Water Resources, previously did not include a purpose statement for the Flood Plain zone. This amendment includes adoption of the "Statement of Purpose" from the 2014 Oregon Model Flood Damage Prevention Ordinance. The adoption of the model code provisions, including this purpose statement, was recommended by DLCD. The Flood Plain zone is intended to be responsive to National Flood Insurance Program (NFIP) requirements as well as state guidance and recommendations on the implementation of these requirements. V. REVIEW CRITERIA Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative plan and text amendment. Nonetheless, because this is a Deschutes County initiated amendment, the County bears the responsibility for justifying that the amendments are consistent with the Statewide Planning Goals and its Comprehensive Plan. V1. APPLICABLE CRITERIA A. CHAPTER 22.12, LEGISLATIVE PROCEDURES 1. Section 22.12.010. Hearing Required FINDING: This criterion will be met because a public hearing will be held before the Deschutes County Planning Commission and Board of County Commissioners. 2. Section 22.12.020, Notice Notice A. Published Notice 1. Notice of a legislative change shall be published in a newspaper of general circulation in the county at least 10 days prior to each public hearing. 2. The notice shall state the time and place of the hearing and contain a statement describing the general subject matter of the ordinance under consideration. Page 4 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) FINDING: This criterion will be met by notice being published in the Bend Bulletin newspaper. B. Posted Notice. Notice shall be posted at the discretion of the Planning Director and where necessary to comply with ORS 203.045. FINDING: This criterion is met with notices posted on the bulletin board in the lobby of the Deschutes County Community Development Department, 117 NW Lafayette, Bend. C. Individual notice. Individual notice to property owners, as defined in DCC 22.08.010(A), shall be provided at the discretion of the Planning Director, except as required by ORS 215.503. FINDING: As this is a legislative process and is not property specific, individual notice is not required. This criterion does not apply. D. Media notice. Copies of the notice of hearing shall be transmitted to other newspapers published in Deschutes County. FINDING: Notice will be provided to the County public information official for wider media distribution. This criterion has been met. 3. Section 22.12.030 Initiation of Legislative Changes. A legislative change may be initiated by application of individuals upon payment of required fees as well as by the Board of County Commissioners. FINDING: The application was initiated by the Deschutes County Planning Division at the direction of the Board of County Commissioners, and has received a fee waiver. This criterion has been met. 4. Section 22.12.040. Hearings Body A. The following shall serve as hearings or review body for legislative changes in this order: 1. The Planning Commission. 2. The Board of County Commissioners. B. Any legislative change initiated by the Board of County Commissioners shall be reviewed by the Planning Commission prior to action being taken by the Board of Commissioners. Page 5 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) FINDING: The Deschutes County Planning Commission held an initial public hearing on August 8, 2019 and will provide a recommendation to the Board of County Commissioners. The Board will then hold the second set of public hearings. These criteria will be met. 5. Section 22.12.050 Final Decision All legislative changes shall be adopted by ordinance FINDING: The legislative changes included in file nos. 247 -19 -000530 -TA / 533 -PA will be implemented by ordinance upon approval and adoption by the Board. This criterion will be met. B. Statewide Planning Goals The parameters for evaluating these specific amendments are based on an adequate factual base and supportive evidence demonstrating consistency with Statewide Planning Goals. The following findings demonstrate the proposed amendments comply with applicable statewide planning goals and state law. • Goal 1, Citizen Involvement The adoption process for the proposed amendments will include public hearings before the Planning Commission and the Board, consistent with ORS 215.060 and DCC 22 1- 010 This goal r.+ ULL LL. I L.V I V. I 1 IIJ �VQI is met. IICI. • Goal 2, Land Use Planning ORS 197.610 allows local governments to initiate post acknowledgments plan amendments (PAPA). An Oregon Department of Land Conservation and Development 35 -day notice was initiated on July 3, 2019. This findings document provides the adequate factual basis and documented analysis for the plan amendment and zoning text amendments. This goal is met. • Goal 3, Agricultural Lands The proposed amendments add and clarify hazard mitigation measures for development in the Flood Plain. No changes to the EFU zone are proposed. This goal does not apply. • Goal 4, Forest Lands The proposed amendments add and clarify hazard mitigation measures for development in the Flood Plain. No changes to the F-1 and F-2 zones are proposed. This goal does not apply. Page 6 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) • Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces Local governments are required to apply Goal 5 to a PAPA when the amendment allows a new use and the new use "could be" a conflicting use with a particular Goal 5 resource site on an acknowledged resource list.' OAR 660-023-0240 "Relationship of Goal 5 to Other Goals" establishes that the requirements of Goal 5 do not apply to the adoption of measures required by Goals 6 and 7. As the amendments are incorporating minor changes or clarifications to uses that are currently allowed in the zone and adding additional requirements to ensure development in the Flood Plain Zone is consistent with NFIP and DLCD requirements per Goal 7, staff finds no Goal 5 resource will be negatively affected. Therefore, this goal is met. • Goal 6, Air, Water and Land Resources Quality The Deschutes County Code contains numerous regulations pertaining to development in the Flood Plain Zone that are designed to protect air, water and land resources quality. These regulations will be altered using language from DLCD's 2014 Oregon Model Flood Damage Prevention Ordinance to establish greater consistency between state and local regulations in the Flood Plain Zone. This goal is met. • Goal 7, Natural Hazards As previously stated, the purpose of the proposed amendments are to update the Flood Plain i� Zone regulations �s t0 establish greater consistency between state and Inca) regulations in the Flood Plain Zone. These amendments are specifically related to mitigation of natural hazards associated with flooding. This goal is met. • Goal 8, Recreational Needs The proposed amendments are not addressing a recreational use or need. Therefore, this goal is not applicable. • Goal 9, Economic Development The proposed amendments incorporate requirements from DLCD's 2014 Oregon Model Flood Damage Prevention Ordinance related to critical facilities, storage of equipment, accessory structures and manufactured dwellings. These requirements provide greater protection from flood damage and associated costs for property owners. The proposed amendments do not limit any existing commercial or industrial activities. This goal is met. • Goal 10, Housing Unlike municipalities, unincorporated areas in Deschutes County are not obligated to fulfill certain housing requirements as detailed in Goal 10. Therefore, this goal does not apply. 1 OAR 660-023-0250(3)(b) Page 7 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) • Goal 11, Public Facilities The proposed amendments provide requirements to uses that currently exist within the Flood Plain Zone chapter of the Deschutes County Code. The proposed amendments do not impact any existing public facilities nor do they substantiate a need for the development of new public facilities. Therefore, this goal does not apply. • Goal 12, Transportation The proposed text amendments pertain to development standards for currently allowed uses in the Flood Plain Zone for greater consistency between state and local requirements and do not approve any specific development proposal or a new land use. Development projects will be reviewed individually for compliance with the Transportation Planning Rule. Therefore, this goal does not apply. • Goal 13, Energy Conservation The proposed text amendments alter countywide development standards for types of projects in the Flood Plain Zone, that are currently allowed uses. No specific development proposals are proposed. Any future site-specific application will be required to demonstrate consistency with Goal 13. Therefore, this goal does not apply. • Goal 14, Urbanization The purpose of Goal 14 is to direct urban uses to areas inside urban growth boundaries. n_ d amendments seek aiiow urban on As 'Jr UE.1UJCU, these do not to allVvv urban uses on rural land, nor do they seek to expand an existing urban growth boundary, this goal does not apply. • Goals 15 through 19 Goals 15 through 19 are not applicable to any amendments to the County's Comprehensive Plan as the County does not contain any of the relevant land types included in the goals. B. Deschutes County Comprehensive Plan Chapter 2, Resource Management Section 2.5, Water Resources 2.5.10 Support educational efforts and identify areas where the County could provide information on the Deschutes River ecosystem, including rivers, riparian areas, floodplains and wetlands. a. Explore methods of ensuring property owners know and understand regulations for rivers, riparian areas, floodplains and wetlands. Page 8 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) FINDING: In order to ensure all interested persons are aware of the proposed changes, staff will present an overview of the proposed amendments and administration of the Flood Plain Zone during Planning Commission and Board work sessions and public hearings. 2.5.16 Use a combination of incentives and/or regulations to mitigate development impacts on river and riparian ecosystems and wetlands. FINDING: The Flood Plain Zone limits development and establishes standards to mitigate impacts. DCC 18.96.060(B) requires that no new construction of a dwelling, accessory structure or farm use structure shall be located in the flood plain unless it can be demonstrated that no alternative exists that would allow the structure to be placed outside of the flood plain. If development is located within the Flood Plain Zone, there are specific standards that mitigate development impacts on riparian ecosystems and wetlands. The proposed text amendments add additional regulations to ensure flood proofing, equipment storage, critical facilities, and manufactured homes are compliant with state regulations. In clarifying this consistent message, staff can administratively ensure development impacts are mitigated through the land use review process. Section 3.5, Natural Hazards 3.5.10 Regulate development in designated floodplains identified on the Deschutes County Zoning Map based on Federal Emergency Management Act regulations. a. Participate in and implement the Community Rating System as part of the National Flood Insurance Program. FINDING: The Flood Plain Zone will continue regulating and restricting development within its boundary. The amendment incorporates provisions of the 2014 Oregon Model Flood Damage Prevention Ordinance. Administration of the Flood Plain Zone demonstrates the County's commitment to participation and implementation of the County Rating System as part of NFIP. 3.5.11 Review and revise County Code as needed to: f. Make the Floodplain Zone a combining zone and explore ways to minimize and mitigate floodplain impacts. FINDING: Although the proposed amendments do not alter the Flood Plain Zone from a base zone to a combining zone, the proposed amendments provide greater consistency with state regulations through incorporation of text through DLCD's 2014 Oregon Model Flood Damage Prevention Ordinance, which include additional requirements pertaining to critical facilities, storage of equipment, accessory structures, and manufactured dwellings. The existing Flood Plain protections will remain in place to ensure flood plain impacts are properly mitigated. Page 9 of 9 FINDINGS — MODEL FLOOD AMENDMENTS (247 -19 -000530 -TA / 533 -PA) ATTACHMENT 2: ZONING TEXT AMENDMENTS Revised 10.03.19 Chapter 18.04. TITLE, PURPOSE AND DEFINITIONS 18.04.030. Definitions. "Base flood" means the flood having a one percent chance of being equaled or exceeded in any given year. Also referred to as the "100 -year flood." Designation on flood plain maps always includes the letters A or V. "Base flood elevation" means the computed elevation to which floodwater is anticipated to rise during the base flood. Base Flood Elevations (BFEs) are shown on Flood Insurance Rate Maps (FIRMs) and on the flood profiles. "Below -grade crawl space" means an enclosed area below the base flood elevation in which the interior grade is not more than two feet below the lowest adjacent exterior grade and the height, measured from the interior grade of the crawlspace to the top of the crawlspace foundation, does not exceed 4 feet at any point. "Critical facility" means a facility for which even a slight chance of flooding might be too great. Critical facilities include, but are not limited to, schools, nursing homes, hospitals, police, fire and emergency response installations, and installations which produce, use or store hazardous materials or hazardous waste. "Flood Insurance Rate Map (FIRM)" is the official map on which the United States Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community. The FIRM is adopted by reference in Ordinance No. 88 0312007-019. "Flood Insurance Study" is the official report provided by the Federal Insurance Administration that includes flood profiles, the Flood Boundary-Floodway Map, and the water surface elevation of the base flood condition of partial or complete inundation of normally dry land areas. The Study is adopted by reference in Ordinance No. 8$-0342007-019. discharge that is outside the floodway. "Substantial damage" means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. "Substantial improvement" means any repair, reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50 percent of the true cashinarket value of the structure either: A. Before the improvement or repair is started; or B. If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition, "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether Page 1 of 8 EXHIBIT "A" Zoning Text Amendments or not that alteration affects the external dimensions of the structure. The teen does not, however, include either; The term does not, however, include either: A. Any project for improvement of a structure to correct existing violations of state or local health, sanitary or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or B. Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places provided that the alteration will not preclude the structure's designation as a `historic structure'. (Ord. 2019-OOx §x, 2019; Ord. 2017-015§1, 2017; Ord. 2016-026§1, 2016; Ord. 2016- 015§1, 2016; Ord. 2015-004 §1, 2015; Ord. 2014-009 §1, 2014; Ord. 2013-008 §1, 2013; Ord. 2012-007 §1, 2012; Ord. 2012-004 §1, 2012; Ord. 2011-009 §1, 2011; Ord. 2010- 022 §1, 2010; Ord. 2010-018 3, 2010, Ord. 2008-007 §1, 2008; Ord. 2008-015 §1, 2008; Ord. 2007-005 §1, 2007; Ord. 2007- 020 §1, 2007; Ord. 2007-019 §1, 2007; Ord. 2006- 008 §1, 2006; Ord. 2005-041 §1, 2005; Ord. Chapter 18.04 35 ( 04/2015) 2004-024 §1, 2004; Ord. 2004-001 §1, 2004; Ord. 2003-028 §1, 2003; Ord. 2001-048 §1, 2001; Ord. 2001-044 §2, 2001; Ord. 2001-037 §1, 2001; Ord. 2001-033 §2, 2001; Ord. 97-078 §5, 1997; Ord. 97-017 §1, 1997; Ord. 97-003 §1, 1997; Ord. 96-082 §1, 1996; Ord. 96-003 §2, 1996; Ord. 95-077 §2, 1995; Ord. 95-075 §1, 1975; Ord. 95-007 §1, 1995; Ord. 95- 001 §1, 1995; Ord. 94-053 §1, 1994; Ord. 94-041 §§2 and 3, 1994; Ord. 94-038 §3, 1994; Ord. 94-008 §§1, 2, 3, 4, 5, 6, 7 and 8, 1994; Ord. 94-001 §§1, 2, and 3, 1994; Ord. 93- 043 §§1, 1A and 1B, 1993; Ord. 93- 038 §1, 1993; Ord. 93-005 §§1 and 2, 1993; Ord. 93-002 §§1, 2 and 3, 1993; Ord. 92-066 §1, 1992; Ord. 92-065 §§1 and 2, 1992; Ord. 92- 034 §1, 1992; Ord. 92-025 §1, 1992; Ord. 92-004 1 and2, 1992; Ord. 91-038 §§3 and4, 1991; Ord. 91-020 §1, 1991; Ord. 91-005 §1, 1991; Ord. 91-002 §11, 1991; Ord. 90-014 §2, 1990; Ord. 89-009 §2, 1989; Ord. 89-004 §1, 1989; Ord. 88- 050 §3, 1988; Ord. 88- 030 §3, 1988; Ord. 88-009 §1, 1988; Ord. 87-015 §1, 1987; Ord. 86-056 2, 1986; Ord. 86-054 §1, 1986; Ord. 86-032 §1, 1986; Ord. 86-018 §1, 1986; Ord. 85-002 §2, 1985; Ord. 84-023 §1, 1984; Ord. 83-037 §2, 1983; Ord. 83-033 §1, 1983; Ord. 82-013 §1, 1982) Page 2 of 8 EXHIBIT "A" Zoning Text Amendments Chapter 18.96. FLOOD PLAIN ZONE - FP 18.96.010. Purposes. 18.96.020. Designated Areas. 18.96.030. Uses Permitted Outright. 18.96.040. Conditional Uses Permitted. 18.96.050. Prohibited Uses. 18.96.060. Limitations on Conditional Uses. 18.96.070. Application for Conditional Use. 18.96.080. Criteria to Evaluate Conditional Uses. 18.96.085. Elevation Certification. 18.96.090. Yard and Setback Requirements. 18.96.100. Stream Setback. 18.96.110. Dimensional Standards. 18.96.120. Warning and Disclaimer of Liability. 18.96.130 Interpretation of FIRM Boundaries 18.96.140 Use Variances. 18.96.080. Criteria to Evaluate Conditional Uses. A. A conditional use permit in a Flood Plain Zone shall not be approved unless all standards established by the Federal Emergency Management Agency and DCC Title 18 are addressed and findings are made by the Hearings Body or Planning Director that each of the standards and criteria are satisfied. B. Approval to alter or relocate a water course shall require notification to adjacent communities, the Department of Land Conservation and Development and Department of State Lands, and other appropriate state and federal agencies prior to any such alteration or relocation and submit evidence to the Federal Insurance Administration. Maintenance shall be provided within the altered and relocated portion of said watercourse so that the flood carrying capacity is not diminished. C. A conditional use permit shall be based upon findings which relate to the property and existing and proposed structure(s). They shall not pertain to the property owner, inhabitants, economic or financial circumstances. D. All structures in the flood plain shall meet the following standards. 1. Anchoring. a. All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure_ b. All manufactured homes must be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over -the -top or frame ties to ground anchors. 2. Construction Materials and Methods. a. All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage. b. All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage. c. Electrical, heating, ventilation, plumbing and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent Page 3 of 8 EXHIBIT "A" Zoning Text Amendments water from entering or accumulating within the components during conditions of flooding. 3. Utilities. a. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system. b. New and replacement sanitary systems shall be designed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into flood waters. c. On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding consistent with the Oregon Department of Environmental Quality as specified in OAR 340-071-0100 et seq.: 4. Below -grade crawlspace is allowed subject to the standards in FEMA Technical Bulletin 11-01. E. Subdivision and Partition Proposals. 1. All subdivision and partition proposals shall be consistent with the need to minimize flood damage. 2. All subdivision and partition proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. 3. All subdivision and partition proposals shall have adequate drainage provided to reduce exposure to flood damage. 4. Where Base Flood Elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or 5 acres (whichever is less). Generation of Base Flood Elevation data shall not be required for subdivision proposals and other proposed developments that expressly preclude residential and non-residential construction in a Special Flood Hazard Area. F. Review of Building 111Ui1g Per.1tJ. Where elevation data is not available either through the Flood Insurance Study or from another authoritative source, applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high water marks, photographs of past flooding, etc., where available. (Failure to elevate at least two feet above grade in these zones may result in higher insurance rates.) G. Specific Standards. In the Flood Plain Zone, the following requirements must be met: 1. Residential Construction. a. New construction, including replacement, and substantial improvement of any residential structure shall have the lowest floor of the entire structure, including basement, elevated at least one foot above base flood elevation. b. Fully enclosed areas below the lower floor that are subject to flooding are prohibited unless they are designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must satisfy the standards in FEMA Technical Bulletin 11-01 and must either be certified by a registered professional engineer or architect and or must meet or exceed the following criteria: i. A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided. ii. The bottom of all openings shall be no higher than one foot above grade. iii. Openings may be equipped with screens, louvers or other coverings or devices, provided that they permit the automatic entry and exit of floodwaters. 2. Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, Page 4 of 8 EXHIBIT "A" Zoning Text Amendments including basement, elevated at least one foot above the level of the base flood elevation, or, together with attendant utility and sanitary facilities, shall: a. Be flood proofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water. b. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. c. Be certified by a registered professional engineer or architect that the design and methods of construction are subject to accepted standards of practice for meeting provisions of DCC 18.96.080, based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the County as set forth in DCC 18.96.070(H). d. Nonresidential structures that are elevated, but not flood proofed, must meet the same standards for space below the lowest floor as described in DCC 18.96.080(F). e. Applicants for floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g. a building constructed to the flood level will be rated as one foot below that level). f. Applicants shall supply a comprehensive Maintenance Plan for the entire structure that shall include but not limited to: exterior envelope of structure; all penetrations to the exterior of the structure; all shields, gates, barriers, or components designed to provide floodproofing protection to the structure; all seals or gaskets for shields, gates, barriers, or components; and, the location of all shields, gates, barriers, and components as well as all associated hardware, and any materials or specialized tools necessary to seal the structure. g. Applicants shall supply an Emergency Action Plan (EAP) for the installation and sealing of the structure prior to a flooding event that clearly identifies what triggers the E n n a t b t' t1, 1 ,A P L:til allu wiiu 1J responsible for enacting the 3. Small Accessory Structures. Relief from elevation or floodproofing as required in (G)(1) or (G)(2) above may be granted for small accessory structures that are: a. Less than 200 s. uare feet and do not exceed one sto b. Not temperature controlled; c. Not used for human habitation and are used solely for parking of vehicles or storage of items having low damage potential when submerged; d. Not used to store hazardous or toxic material, oil or gasoline, or any priority persistent pollutant identified by the Oregon Department of Environmental Quality unless confined in a tank installed in compliance with this ordinance or stored at least one foot above Base Flood Elevation; e. Located and constructed to have low damage potential; f. Constructed with materials resistant to flood damage; Anchored to .revent flotation collase, or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy, during conditions of the base flood; h. Constructed to equalize hydrostatic flood forces on exterior walls by allowing for the automatic entry and exit of floodwater. Designs for complying with this requirement must be certified by a licensed professional engineer or architect or: i. Provide a minimum of two openings with a total net area of not less than one square inch for every square foot of enclosed area subject to flooding; ii. The bottom of all openings shall be no higher than one foot above the higher of the exterior or interior grade or floor immediately below the opening; and Page 5 of 8 EXHIBIT "A" Zoning Text Amendments iii. Openings may be equipped with screens, louvers, valves or other coverings or devices provided they permit the automatic flow of floodwater in both directions without manual intervention. i. Constructed with electrical, and other service facilities located and installed so as to prevent water from entering or accumulating within the components during conditions of the base flood. 43. Manufactured Dwellings. a. Manufactured dwellings supported on solid foundation walls shall be constructed with flood openings that comply with (G)(1)(b) above; b. The bottom of the longitudinal chassis frame beam in A zones shall be at or above the Base Flood Elevation and the lowest floor of the manufactured dwelling shall be at least one foot above the Base Flood Elevation; c. The manufactured dwelling shall be anchored to prevent flotation, collapse, and lateral movement during the base flood. Anchoring methods may include, but are not limited to, use of over -the -top or frame ties to ground anchors (Reference FEMA's "Manufactured Home Installation in Flood Hazard Areas" guidebook for additional techniques); and d. Electrical crossover connections shall be a minimum of 12 inches above Base Flood Elevation. Manufactured Homes. All manufactured homes to be placed or substantially improved shall be at least one foot above the base flood elevation. Such manufactured homes shall be DCC 18.96.080(C)(1). 54. Docks, Piers and Walkways. a. No individual boat dock or pier shall be allowed on any lot with less than 200 feet of v frontage. ufrvntage. b. No community boat dock or pier shall be allowed on any lot with less than 100 feet of river frontage. c. No individual boat dock or pier shall be more than 20 feet in length or more than eight feet in width. The total surface area shall not exceed 160 square feet. d. No community boat dock or pier shall be more than 20 feet in length. The total surface area shall not exceed 320 square feet. e. A boat dock or pier shall not extend into or over the water more than 20 feet as measured from the ordinary high water mark (OHM), or five percent of the distance between the ordinary low water mark (OLM) on each river or stream bank measured at right angles to the shoreline, whichever is less, unless it can be shown that a greater extension: i. Is necessary to allow access to the OHM; ii. Will not increase flood hazard; and iii. Will not cause the deterioration or destruction of marine life or wildlife habitat. When the lines of ordinary high or low water cannot be determined by survey or inspection, then such lines shall be determined by a registered professional engineer using the annual mean high or low water for the preceding year, using data from the State of Oregon Watermaster. f. Individual boat docks and piers shall have a minimum five foot setback from adjoining property boundaries projected over the water surface. g. Dock, pier and walkway structures shall not be covered or enclosed. h. All materials used in dock, pier or walkway construction must be in compliance with all DEQ and EPA regulations. Page 6 of 8 EXHIBIT "A" Zoning Text Amendments i. Docks, piers and walkways shall use either pilings or Styrofoam floats if such floats are fully enclosed and sealed. j. Docks, piers and walkways shall not impede water movement or cause deposition on waterway beds. k. Docks, piers and walkways containing concrete or wood preservatives shall be fully cured or dried prior to placement in the water. 1. No walkway shall be more than four feet in width. The length of the walkway shall be no more than the minimum required to allow access to a dock. m. Walkways shall include at least one handrail if the structure is elevated 30 inches or more from ground level. n. All docks, piers and walkways shall meet the test of noninterference with navigation. Ery. Parking Facilities. No parking facility shall be located within 20 feet (measured at right angles) of the ordinary high water mark (OHM). 7. Construction of new critical facilities shall be, to the extent possible, located outside the limits of the Area of Special Flood Hazard (100 -year floodplain). Construction of new critical facilities shall be permissible within the Area of Special Flood Hazard if no feasible alternative site is available. Critical facilities constructed within the Area of Special Flood Hazard shall have the lowest floor elevated three feet above Base Flood Elevation or to the height of the 500 -year flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to ensure that hazardous or toxic substances, oil or gasoline, or any priority persistent pollutant identified by the Oregon Department of Environmental Quality will not be displaced by or released into floodwaters. Access routes elevated to or above the level of the Base Flood Elevation shall be provided to all critical facilities to the extent possible unless deemed impractical by the Hearings Body or Planning Director. 8. Storage of material or equipment, incidental to an established primary use on the property subject flood be permitted such material is not that is either not to damage by aivvu may V i.. v......w». If .. ».... ...».-...... ... ..,._ readily removable, it shall be anchored to prevent flotation and shall not obstruct water flow. Material or equipment stored shall include only items which will not create a hazard to the health or safety of persons, property, animals or plant life should the storage area be inundated. H. Floodways. In floodways the following provisions shall apply: 1. Encroachments, including fill and removal, replacement of a dwelling lawfully in existence on the effective date of Ordinance 88-030 and other development are prohibited unless certification by a registered professional engineer is provided demonstrating that the proposed encroachments will not result in any increase in flood levels during a base flood discharge. 2. The applicant must demonstrate that all necessary federal, state and local government agency permits have been or can be obtained and that all other applicable sections of DCC Title 18 have been satisfied. 3. Replacement of a dwelling shall not increase the square footage or footprint of the structure by more than 20 percent of the square footage or footprint of such dwelling as of the effective date of Ordinance 88-030. 4. No replacement of a dwelling shall be allowed if the use of the preexisting dwelling has been abandoned or otherwise terminated for a period of over one year. (Ord. 2019-0xx §1, 2019; Ord. 2007-019 §2, 2007; Ord. 2000-033 §6, 2000; Ord. 95-075 §1, 1995; Ord. 95-022 §1, 1995; Ord. 93-043 §15B, 1993; Ord. 93-002 §§6-8, and 9, 1993; Ord. 91-020 §1, 1991; Ord. 89-009 §7, 1989; Ord. 88-030 §4, 1988) Page 7 of 8 EXHIBIT "A" Zoning Text Amendments 18.96.130 Interpretation of FIRM Boundaries The Planning Director shall make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). Such interpretations shall be processed as a development action pursuant to Chapter 22.16. Where Flood Plain zoned land has been recognized as above the base flood elevation in a FEMA Letter of Map Change, uses and structures on such land shall be exempt from 18.96.080(D); 18.96.080(E); 18.96.080(G)(1), (2), and (3); 18.96.080(H); and 18.96.085. (Ord. 2019-0xx §1, 2019; Ord. 2007-019 §2, 2007) Page 8 of 8 EXHIBIT "A" Zoning Text Amendments Attachment 3: COMPREHENSIVE PLAN AMENDMENTS Revised 10.03.19 Secti,ow 2.5 Water R.esou.rces Riparian Areas Riparian areas are areas adjacent to rivers, streams, lakes or ponds where there is vegetation that requires free or unbound water or conditions that are more moist than normal. Riparian areas form an interconnected system within a watershed. At the water's edge they define the transition zone between aquatic and terrestrial systems. Riparian areas often contain a diversity of vegetation not found in upland areas. Riparian areas are limited in Deschutes County and are important habitats for both fish and wildlife. The Deschutes County Comprehensive Plan, adopted in 1979 and revised, mapped riparian areas along the following rivers and streams. Table 2.5.5 - Riparian Acreage in Deschutes County Streams Riparian Acres Deschutes River 1,440 Little Deschutes River 2,920 Paulina Creek 846 Indian Ford Creek 573 Tumalo Creek 50 Whychus Creek 47 Fall River 43 Crooked River 38 TOTAL 5,966 Source: Deschutes County/City of Bend River Study 1986 Significant riparian habitat is located in one or more of the following three areas: • The area within 100 feet of the ordinary high water mark of an inventoried river or stream. The 100 foot wide area may contain both riparian vegetation and upland vegetation. • Wetlands and flood plain are also frequently within 100 feet of a stream or river. In some cases the riparian vegetation may extend beyond 100 feet from the ordinary high water mark if it is a designated wetland or flood plain. • The area adjacent to an inventoried river or stream and located within a flood plain mapped by the Federal Emergency Management Agency and zoned Flood Plain by the County. The flood plain may extend beyond 100 feet from the ordinary high water mark of the stream and may contain wetland. The County has not conducted an inventory of riparian areas adjacent to lakes and ponds on private land. However, many of these areas are included in National Wetland Inventory Maps and are subject to County, State and/or Federal wetland fill and removal regulations. Riparian areas adjacent to the many lakes on federal lands are managed and protected under federal land and resource management plans and are not included in the County inventory. DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 2 RESOURCE MANAGEMENT REFERENCES ATTACHMENT 3: COMPREHENSIVE PLAN AMENDMENTS (530 -TA / 533 -PA) Floodplains Federal Emergency Management Agency Maps The Federal Emergency Management Agency (FEMA) maps flood -plains adjacent to the following rivers and streams in Deschutes County. The floodplain along these rivers and streams is recognized in a Flood Plain zone by the County. Table 2.5.6 - Floodplains Adjacent to Rivers and Streams • • Deschutes River • Long Prairie Little Deschutes River • Dry River • Whychus Creek • Spring River • Crooked River • Indian Ford Creek • Paulina Creek Source: Deschutes County GIS Floodplains are defined as the lowland and relatively flat areas adjoining inland waters including at a minimum, that area subject to a one percent (100 -year recurrence) or greater chance of flooding in any one year. Generally, river flooding along the Deschutes River has not historically been a serious problem in Deschutes County. This is due to the porous nature of the local geology, irrigation diversion canals and reservoir retention. Studies completed by the U.S. Army Corp of Engineers have resulted in designating a 100 year flood -plain for the Little Deschutes River and Whychus Creek. Regular flooding events have occurred near the headwaters of Tumalo Creek and in the Tumalo community. Along Whychus Creek, the city of Sisters frequently experiences flooding, with the most significant event occurring in 1964 (see also Section 3.5). In 2019 Deschutes County amended itc Flnnd Plain 711ne to incorporate additional standards from the 2014 DLCD Model Flood Ordinance. The purpose of the Zone is to continue promoting public health, safety, and general welfare, and minimize losses due to flood conditions in specific areas. It is designed to: (I) Protect human life and health; (2) Minimize expenditure of public money and costly flood control projects; (3) Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; (4) Minimize prolonged business interruptions (5) Minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets, and bridges located in areas of special flood hazard; (6) Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood blight areas; (7) Ensure that potential buyers are notified that property is in an area of special flood hazard; and, (8) Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. The Zone also provides riparian area conservation along inventoried rivers and streams for fish and wildlife and preservation of significant scenic and natural resources. Comprehensive plan policies for Water Resources (Section 2.5), Wildlife Resources (Section 2.6), Open Space and DESCHUTES COUNTY COMPREHENSIVE PLAN — 2011 CHAPTER 2 RESOURCE MANAGEMENT REFERENCES ATTACHMENT 3: COMPREHENSIVE PLAN AMENDMENTS (530 -TA / 533 -PA) Scenic Views and Sites Resources (Section 2.7), and the corresponding development standards in Title 18 implement protections pertaining to Goal 5. DESCHUTES COUNTY COMPREHENSIVE PLAN - 20I I CHAPTER 2 RESOURCE MANAGEMENT REFERENCES ATTACHMENT 3: COMPREHENSIVE PLAN AMENDMENTS (530 -TA/ 533 -PA)