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2001-859-Minutes for Meeting November 05,2001 Recorded 11/21/2001DESCHUTES COUNTY OFFICIAL RECORDS MARY SUE PENHOLLOW, COUNTY CLERK 1iJ �7 �J'f ES CO COMMISSIONERS' JOURNAL 11�21�Z00i 04;51;50 PM Board of Commissioners 1130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke Mike Daly EXCERPT OF MINUTES OF WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, NOVEMBER 5, 2001 Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Mike Maier, County Administrator; Laurie Craghead, Legal Counsel; Dan Peddycord, Health Department; Scott Johnson, Commission on Children & Families; and George Kolb, Road Department. Also in attendance were Cathy Tilton, Kevin Harrison, Barbara Rich and Doreen Blome , Community Development; Media Representative Barney Lerten of bendnet. com; and one citizen. Chair Tom De Wolf opened the meeting at 10:03 a.m. 1. Before the Board was Citizen Input. None was offered. 3. Before the Board was Discussion of a Public Hearing (Scheduled fo Wednesday, November 7), and First Reading of Ordinance No. 2001-038, Amending Title 23, Allowing Irrigation Districts to Operate, Maintain and Pipe Existing Irrigation Systems. and 4. Before the Board was Discussion of a Public Hearing (Scheduled fo Wednesday, November 7), and First Reading of Ordinance No. 2001-039, Amending Title 18, Regarding Irrigation District Activities. Excerpt of Minutes of Work Session Page 1 of 6 Pages Monday, November 5, 2001 Quality Services Performed with Pride TOM DEWOLF: These two items could be dicey on Wednesday. (To Cathy Tilton) Lucy Parks has been in contact with everyone, and I responded to her with some mistaken information, and then followed up with accurate information. I had no idea this was coming to us. I got this information just after I had mailed a letter to her, saying that this is a City issue, that Swalley's piping is all within the City, and you need to talk with the City Council. Then I got this packet. I have since talked with her, and I know that she is adamantly opposed, as is one other person who has written to me. The contention that they are making is that this goes against the easement that exists; that the easement is for an open canal, and there is no such easement for a piped canal. That would be the question I'll have on Wednesday for legal and for you. MIKE DALY: I think this is an issue that needs to be run through the courts, don't you? DEWOLF: It may be. LAURIE CRAGHEAD: I was going to try to answer the question today, as I will be in trial on Wednesday. This ordinance will not affect the easements. If they still can't do it by their easements, the ordinance does not give them permission to do it. It would be something the irrigation districts would have to duke out with the property owners, in court. DALY: The other issue that was brought up is the material that they would be excavating. Who owns it? If it's an easement, the property owner probably owns it. CRAGHEAD: Again, it would be something that the districts would have to work out with the property owners. If they were going to sell it, if nothing else they would probably have to split it somehow. DEWOLF: Another option would be to dig up all that silt and put it in their backyards. They're probably doing them a favor by getting rid of it. Excerpt of Minutes of Work Session Page 2 of 6 Pages Monday, November 5, 2001 DALY: There's another issue with the people who sell dirt for a living. They don't want to see the irrigation districts competing with them. So, there are three issues here that we're going to hear about. DENNIS LUKE: One of the things to consider is whether the County even wants to look at that stuff. Is it the Division of State Lands, or is it Deschutes County that has control of the wetlands and the canals. That's one of the questions we're looking at. If we decide not to deal with it at all, the Division of State Lands will deal with it. DEWOLF: You mean if we decide not to deal with this ordinance at all? LUKE: No, the second one, regarding the mining. CATHY TILTON: The Division of State Lands is going to regulate anything related to wetlands anyway. We're actually on top of the Division of State Lands' requirements. The County also has requirements for the fill and removal of wetlands. In consultation with DSL and the Oregon Department of Fish and Wildlife, we have been able to come to an agreement to defer regulatory authority to DSL. Part of their requirements is to notify all state agencies involved, which includes ODF&W. We're only deferring the portion of fill and removal that affects jurisdictional wetlands that are in existing canal structures. Any wetlands that are outside of that will still fall under the County's fill and removal rules. LUKE: So the ordinance affects one of the things we'll talk about, whether we want to exempt canals from our jurisdiction as a wetlands. TILTON: Yes. We're adding a third exception under the fill and removal exception section of the code, that will basically defer regulatory authority of those jurisdictional wetlands, as decided by DSL, to the Division of State Lands, only for those jurisdictional wetlands within existing canal structures. That is the only limitation that won't require a conditional use permit, if the Board approves that section of the ordinance. Excerpt of Minutes of Work Session Page 3 of 6 Pages Monday, November 5, 2001 LUKE: A lot of these local canal companies were put in place before other local governments came about. TILTON: Yes, some of them are very old. DALY: The piping issue - is that something that is new? Has that been added? I think the opposition to the piping is probably the biggest issue. TILTON: Yes. The opposition that I've been aware of in reading newspaper editorials about Swalley Irrigation District is that the private landowners, who may or may not have any interest in farming but a canal runs through their residential areas, are concerned about aesthetic values and property values. The criteria that we are reviewing on Wednesday has nothing to do with aesthetics or property values in terms of the conditional use required for fill and removal. This does not address aesthetics; it just addresses the protection of wetlands. I think the issue of discussing the easements should be kept separate - ownership should be separate from land use regulatory authority. DEWOLF: This would allow for the piping, if this were to pass, from the County's perspective. What you are saying is that this isn't carte blanche because there may be legal issues between the irrigation districts and the property owners. TILTON: Right. They are separate issues in terms of the land use regulatory authority versus ownership, and that whole issue of what sort of interest or property rights an easement has as it relates to being able to conduct their normal business operations, DALY: My question is, how does this ordinance change their ability to pipe now? Does it change it? Excerpt of Minutes of Work Session Page 4 of 6 Pages Monday, November 5, 2001 TILTON: Historically we have not required a conditional use permit for piping unless it falls within jurisdictional wetlands. What the ordinance does at this point is recommend that we defer the regulatory authority of piping that is within jurisdictional wetlands to the Division of State Lands for their review. DALY: These are only wetlands, then. TILTON: Right. Only wetland areas. LUKE: What about in winter, when the canals are dry? CRAGHEAD: The definition of wetlands covers any length of time. They could just be wet three months of the year and still be defined as wetlands. DALY: I'm sure that most of the public thinks that this ordinance is going to allow carte blanche for the districts to go ahead and pipe. I think we need to relate to the public that this is not really what it does. They have to understand that we aren't doing that. CRAGHEAD: There's also the argument that piping has always been allowed on EFU land anyway, and that this ordinance just clarifies it for all the zones. LUKE: I'd like to point out that if the districts found a better place to run their pipes, for instance along a road right-of-way, they could abandon those easements and just fill them in with dirt. They have all kinds of options. It's easier to go where the easements already are, but there's nothing that says they have to stay there. The irrigation districts have been here even before Deschutes County, and certainly before a lot of local governments. DALY: Some of the Farm Bureau people oppose parts of this change. Excerpt of Minutes of Work Session Page 5 of 6 Pages Monday, November 5, 2001 At this time, a letter from Elwin A. Ross of Redmond regarding this issue was submitted into the record (attached as Exhibit A). 13. Before the Board was Discussion and Consideration of Signature of an Intergovernmental Agreement between Deschutes County and the Oregon Department of Human Services for the Purchase of Life Skills Training Curriculum for Local Middle Schools. Scott Johnson explained that this is a $10,000 grant, which is applied for each year, and the third year of the project. It is a very worthwhile grant for anti- drug, anti -alcohol and other substance abuse education. LUKE: I move approval, subject to legal review. DALY: Second. VOTE: LUKE: Yes. DALY: Yes. DEWOLF: Chair votes yes. Being no further formal action taken by the Board, Chair Tom De Wolf adjourned the meeting at 10:50 a.m. DATED this 5A Day of November 2001 for the Deschutes County Board of Commissioners. ATTEST: - Recording Secretary Excerpt of Minutes of Work Session Monday, November 5, 2001 Tom D olf, Chair /Z erinis R. Luke, Commissioner ichael M. Daly ommissioner Page 6 of 6 Pages Catharine Tilton, Associate Planner Deschutes County Development Department Planning Division 117 NW Lafayette Ave Bend, OR 97701 RE: TA -01-1 I am pleased to see the proposed text amendment for allowing "Operation, maintenance, and piping of existing irrigation systems operated by an irrigation district", as "Use permitted outright". I see this as allowing an irrigation district to remove accumulated sediments in their facilities and install pipelines in their facilities. This they must be allowed to do. I am yet concerned with the wording in "Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance of irrigation systems operated by an irrigation district, including the excavation and mining for facilities, ponds, reservoirs, and off site use, storage, and sale of excavated materials, as "Conditional uses permitted". Irrigation districts must be able to operate and maintain their systems, i.e. facilities, ponds and reservoirs, by removing accumulated sediments without going through a Conditional use permitting process. The word "facilities" in this description could be interpreted by an over zealous person or agency as including canals & laterals as well as ponds and reservoirs. This would be a travesty. "Removal" of accumulated sediments in all facilities is required by irrigation districts to maintain water flow or storage due to original or modified design and then the operation of those flows or storage. I feel what they do with the material outside of district activities maybe should go through the "Conditional uses permitting process", i.e. if they sell it as a commercial fill or aggregate. If the irrigation districts use the material themselves on any district owned facilities, whether it be on-site or off-site of where the sediment removal took place, then "Use permitted outright" should be allowed. The accumulated sediment typically removed from canals, ponds and reservoirs is excellent bedding and backfill material around pipelines the districts are now installing. The County must participate all they can to encourage irrigation districts in their water conservation efforts. Piping of canals and laterals is one of the districts current major efforts and use of their own excavated sediments reduces cost. The County should encourage this activity. I feel 18.120.050, Item C will work for the irrigation districts. This worked well under the authority of DSL in the past, and I hope it works well in the future. There are few if any irrigation district owned canals & laterals in Deschutes County that I am aware of that are located in true jurisdictional wetlands. However, I do suggest removal of the word "ditches". Irrigation districts facilities consist of "canals and laterals", private landowners have "ditches". "Ditches" denote a small water conveyance device generally located on one farm. Sincerely Elwin A. Ross, PE Redmond, OR