2001-862-Minutes for Meeting November 07,2001 Recorded 11/21/2001MARYSUE
DESCHSPENHOLLOW, COUNTYRCLERKS Q 1001-867
'T COUNTY OFFICIAL
ES C
COMMISSIONERS' JOURNAL
11/21/200104:53:00 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 Woff
Dennis R. Luke
MINUTES OF BOARD MEETING Mike Daly
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, NOVEMBER 79 2001
Administration Building, 1130 NW Harriman St., Bend
Present were Commissioners Tom DeWolf, Dennis R. Luke and Michael M. Daly.
Also present were Mike Maier, County Administrator; Laurie Craghead, Legal
Counsel; Cathy Tilton, Doreen Blome' and George Read, Community
Development; Jim Court, La Pine Fire District; Media Representatives Dana
Walters of Z-21 TV, Jeff Mullins of KBND Radio, and Barney Lerten of
bendnet. com; and approximately 40 citizens.
The audience was first entertained by a brief musical preview of the Obsidian
Opera Company's New Fall Production.
Chair Tom De Wolf opened the formal meeting at 10:15 a.m.
1. Before the Board was Citizen Input.
Chair Tom DeWolf explained that there's a situation now where the Chair of the
Board of the La Pine Fire Protection District, Liz Smith, was recalled last night.
The certification of that election should take place by the end of the week. It is
his understanding that the remaining members of that board will conduct a
regular meeting next Tuesday.
It appears that under ORS 254.546, in the case of a recall election held on a date
other than the date of the biennial primary election or general election, the
County Clerk shall prepare an abstract of the votes and have it delivered to the
appropriate officials not less than the 20th day after the election. She actually
has twenty days to certify, but indicated that this should be done by Friday.
Minutes of Board Meeting Page 1 of 36 Pages
Wednesday, November 7, 2001
Quality Services Performed with Pride
Filling a vacancy on the board is done by majority of remaining members of the
governing body. If a majority of the membership is vacant, or if a majority
cannot agree, then the vacancy shall be filled promptly by the County
Commissioners (known as the Court of the County). He asked how long the
district board has to fill this vacancy.
Rick Isham responded that they are to uphold the law, to meet regularly; and
have a duty to meet and attempt to select a replacement. If they fail to meet or
deal with the issue, the duty then falls to the Board of County Commissioners.
Chair DeWolf asked if the Board of County Commissioners has the authority to
set a time period to select a replacement. Mr. Isham stated that he thinks the
Board can. The intent of the statute is to fill any vacancy promptly, either by
the district or by the Board. This is not specifically stated in statute, as it only
refers to "reasonable time". Additional research may be needed in this regard.
Commissioner Luke stated that it is his hope that they fill the vacancy at the
next meeting. If there is no majority, at least two members of the district board
should come to the Commissioners and ask them to fill it. It is primarily a local
government issue.
Stu Martinez of the La Pine Rural Fire Protection District then requested that if
it comes to a 2/2 split vote at their November 13 meeting, that the Board of
Commissioners consider a replacement at that time.
A general discussion then occurred regarding the process to follow in this event.
Mr. Isham stated that there is no defined process for this appointment. The
Board can advertise, request applications and resumes, and conduct interviews.
Chair DeWolf requested that the La Pine Board come to the Commissioners in
the event agreement cannot be reached on the replacement. Everyone wants to
move as quickly as possible to eliminate further turmoil to the citizens of the
district.
2. Before the Board was a Public Hearing and Consideration of Signature of
Order No. 2001-107, Approving a Petition for the Designation of Territory
known as Deschutes River Homesites, Unit 6, Parts I and II, a No Shooting
District.
Minutes of Board Meeting Page 2 of 36 Pages
Wednesday, November 7, 2001
Commissioner Luke explained how a district can be made and how this helps
with enforcement.
Doreen Blome stated that the chief petitioners, area residents and neighbors
were in the audience to encourage approval of their petition. She indicated that
71% of the registered owners signed it, as well as 100% of the adjacent owners
that are not formally in the subdivision.
Chair De Wolf the opened the public hearing.
Being no input offered, Chair De Wolf closed the public hearing.
LUKE: I move approval of Order No. 2001-107.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
3. Before the Board was a Public Hearing and Consideration of First Reading
of Ordinance No. 2001-038, Amending Title 23, Allowing Irrigation
Districts to Operate, Maintain and Pipe Existing Irrigation Systems.
4. Before the Board was a Public Hearing and Consideration of First Reading
of Ordinance No. 2001-039, Amending Title 18, Regarding Irrigation
District Activities.
DEWOLF:
There are two separate matters before us (as stated above). Is it legal, and do we
want to have a public hearing on both of these together, or do we need to handle
these separately?
LUKE:
One has to do with mining, and the other has to do with piping. I think these are
two separate issues.
Minutes of Board Meeting Page 3 of 36 Pages
Wednesday, November 7, 2001
CATHY TILTON:
They are separate issues, but the ordinance that amends Title 18 does include both
the piping and the surface mining as a conditional use. The comprehensive plan
ordinance amends the comprehensive plan to add a new list related to surface
mining. So they are combined.
LUKE:
I think there are some people who have concerns about piping but who have less
concern about the mining aspect. Some people who have big concerns about the
mining aspect have a lot less concern about the piping.
I'd like to be able to keep the testimony separate, if possible, for my own benefit.
To me, they are two extremely different issues. But if they want to testify on both,
or if there is written testimony that covers both, I have no problem with someone
responding to both at the same time.
I've received letters from the public, and want to make sure staff has copies.
DEWOLF:
The thing for everyone to remember this morning is that on both of these matters,
anything that is not raised this morning, you would then not able to appeal on those
particular issues. So any issue you want to raise needs to be raised in this hearing
in order for it to be an issue upon which you could appeal our decision.
LAURIE CRAGHEAD:
It is, unless you decide to keep the record open after the hearing. They would then
have the opportunity to provide additional written comments.
LUKE:
I did get a call on how to submit testimony on this, and I told them that we
normally keep the record open at least a couple of days.
DEWOLF:
Are we under any time constraints on this?
CRAGHEAD:
No.
Minutes of Board Meeting Page 4 of 36 Pages
Wednesday, November 7, 2001
TILTON:
It's a text amendment.
CRAGHEAD:
So the 150 days doesn't apply.
DEWOLF:
So we could leave the record open an additional seven days for additional written
testimony?
CRAGHEAD:
Yes.
DEWOLF:
I'd like to give a couple of ground rules. When we get into these things, they can
potentially get heated. We would ask that you respect the fact that people are
going to have differences of opinion, and they are going to have different interests.
We all live together in this community, and we're going to ask that you respect
each other. If there is anything that the Board considers a derogatory statement
towards another individual, we will cut you off. We try to run clean and fair
meetings here, and people need to stick to the issues and not make this about
personalities.
Additionally, if someone before you has already stated the position that you have,
it would be in the record via notes and tapes, so you don't need to repeat it. I
would ask that you do your best to keep your testimony as brief and to the point as
possible. There are a lot of people in the room, and many want to testify. Again, if
somebody makes your point for you, and you still want to get up and say that you
agree with him or her, feel free to do that.
We have a list of about a dozen people who wish to testify. We will allow anyone
beyond this to testify as well. Our hope is to be done in a reasonable amount of time.
TILTON:
(She read her opening statement regarding the text amendments, starting with
Ordinance No. 2001-038.) What that does in part is comply with state law
regarding surface mining in the exclusive farm use zone, which requires a land use
permit. It also requires that the site be listed as an acknowledged site on the
comprehensive plan. That's the purpose of Title 23, adopting the non-significant
mineral and aggregate list.
Minutes of Board Meeting Page 5 of 30 Pages
Wednesday, November 7, 2001
TILTON:
I understand that some of the people here today in the audience are concerned
about two things; one is about piping the irrigation ditches, and the other issue is
about the sale of the surface mining material as it relates to other surface mining
operations here in Deschutes County. I'm just giving you a little bit of history
about the process.
The Planning Commission reviewed this, and held a public hearing in April that
was later continued to May 24. The Planning Commission unanimously voted to
forward to the Board a recommendation that included support of the applicant's
request to maintain and operate the irrigation systems, as well as being able to sell
the material. The ordinances are the result of the Planning Commission's decision.
MIKE DALY:
I have a question that may also be of interest to the audience. What exactly does
this do, to change what we're already doing?
TILTON:
Right now, if the irrigation districts excavate their material, for instance for
maintenance purposes, and also periodically construct new reservoirs or expand
existing reservoirs, it results in a pile of accumulated material that they'd like to
sell. For them to be able to sell the material and use it off-site, the current County
rules and regulations require an extensive process called a Goal 5 mineral and
aggregate resource list. This results in protecting not only the surface mine; it
allows them to operate their own surface mine without being in conflict with
surrounding neighbors and that kind of thing. It also indicates that the material is
significant enough that the County wants to protect it as a significant mineral and
aggregate resource.
The material that is excavated by the irrigation districts predominately consists of
sand, silt and topsoil. It's unlikely, due to state law, that it would meet the
significance criteria to be placed on the County's significant resource list. As a
result, in order for the irrigation districts to be able to sell the material, they would
like to add something into the code that allows them to do so.
In coordination with the Planning Commission, we've come up with a conditional
use applicant that they would have to go through, but in addition to that the
irrigation districts must place these sites on a non-significant resource list.
Minutes of Board Meeting Page 6 of 36 Pages
Wednesday, November 7, 2001
TILTON:
That's what this first ordinance is about, the adoption of a non-significant resource
mineral aggregate list, and going through a conditional use process. By the Board
of Commissioners' adoption of this, the irrigation districts still must proceed by
putting the site on this non-significant mineral and aggregate resource list. They
also must go through a conditional use process, which is a public process.
DALY:
The irrigation districts, as far as I'm concerned, in the past have always sold this
material. Are you saying that in the past they have been doing this illegally?
TILTON:
I'm not aware of any irrigation districts that have sold material. What I am aware
of is that the requirement, if you use and sell the material off-site, kicks into our
surface mining rules. This requires that the site be zoned surface mining beyond
the Goal 5 mineral and aggregate significant resource list. It also requires this
extensive analysis, called the ESEE (Economic, Social, Environmental, and
Energy) conflict analysis, which balances the economics, the environmental, the
social and the energy aspects of proposal. If the site is significant enough to the
County, it will be added as long at the ESEE analysis balances all of these different
things.
DALY:
This ordinance doesn't necessarily differentiate between a new reservoir and just
cleaning the ditches.
TILTON:
Surface mining kicks in when you excavate more than 1,000 cubic yards.
DALY:
From one particular site?
TILTON:
I think that's a good question, as to how to treat the removal and sale of material
that is extracted from their irrigation canal systems versus excavating material
from an expansion of or a new reservoir. Perhaps the applicants can explain how
they go about maintaining their irrigation canal systems, and what it results in.
Minutes of Board Meeting Page 7 of 36 Pages
Wednesday, November 7, 2001
DALY:
It just seems to me that there is a significant difference between canals and a
reservoir, and how much material we'd be dealing with.
TILTON:
Regarding some of the public comments that have been received, yesterday I got a
copy of the Oregon Aggregate Producers Association's letter, and they are
concerned about the sale of the irrigation districts' excavated material having a
disruptive effect on the commercial market.
They expressed concern that the sale of the excavated material will result in two
things: that the aggregate companies will attempt to use the irrigation districts'
reservoir exception as a reclamation option to avoid the Goal 5 process; this
statement is not clear to me. Also, that the dumping of excavated material on the
market will hurt the County's legitimate small aggregate producers.
They suggested two things: restricting the sale of material excavated from the
irrigation reservoir to 5,000 tons of material annually; or require irrigation districts
to put the material up for competitive bid instead of selling it on the open market.
It seems to me that their main issue has to do with the potential adverse impact that
the sale of excavated material will have on small producers. I don't see any
evidence that supports this claim, and it would be helpful for the Board to hear
testimony from them. Whether the Board wants to regulate this, is not part of the
code at this time.
There are also some suggested changes to the text regarding the surface mining
issues. One comment was to remove the reference to irrigation districts; that
limiting surface mining activity to irrigation districts is overly narrow and doesn't
address the needs of agriculture.
The County's existing surface mining definition does address the needs of general
agriculture, because it specifically excludes from the surface mining definition the
excavation or grading operations conducted in the process of farming. So we
would not regulate those kinds of operations as surface mining; therefore, the
request to remove the reference to the irrigation districts may not be necessary
unless the farmers also want to sell the material. If they want to sell the material,
then we should probably start over and go through a text amendment that allows
that to be included.
Minutes of Board Meeting Page 8 of 36 Pages
Wednesday, November 7, 2001
LUKE:
Along that line, I believe that the County and state prohibit selling that material
off-site; it has to be used on-site. Do you think irrigation districts would be treated
differently than farmers?
TILTON:
The way the County Code reads in terms of the definition of surface mining is that
on-site use of material is allowed; it is exempted or excluded from our surface
mining definition. It is also consistent with state law regarding surface mining in
the Exclusive Farm Use zone. It's when somebody wants to use the material off-
site, and/or they want to sell it, that is not factored into the exclusion issues.
LUKE:
Irrigation canals can run many miles. On-site could be somewhere up the canal.
Would that still be considered on-site?
TILTON:
The irrigation district's easement is a property right, so that would be considered
on-site.
Again, there are a couple of other suggestions to remove the limitation sections.
That's added to the surface mining section of the conditional use standards, and to
limit the amount of excavated material to 20,000 tons of material per surface
mining site. The commentator believes that the limitations listed on the specific
use standards of the conditional uses should be dealt with in the conditional use
process rather than the code, and that a mining activity that moves more than
20,000 tons off-site should considered to be a commercial surface mine and doesn't
belong in the EFU zone, and should be subject to the standard surface mining
procedures.
The Planning Commission specifically reviewed whether there should be a cap on
this. They also requested that the hours of operation be limited and agreed that
excavation should include crushing and processing. This was to limit the impacts
to surrounding areas. They didn't put a cap on the amount of excavated material,
because they realized after talking with the irrigation districts that some of these
projects, such as the expansion of reservoirs and new reservoirs, exceed 20,000
cubic yards. That's just a comment by someone who was concerned about those
things.
Minutes of Board Meeting Page 9 of 36 Pages
Wednesday, November 7, 2001
TILTON:
Finally, related to surface mining, there was a recommendation that rather than
creating a new non-significant mineral and aggregate resource inventory, that the
County adopt a lower significant standard to its existing Goal 5 list than what is
required by the state at this time. What the County's Goal 5 list does is afford
protection to surface mines. It goes through an extensive process, including the
ESEE analysis. Establishing a lower threshold than what the state requires is going
to require a review of the comprehensive plan, involving new notice, public
hearings and so on. It's a separate process and analysis than what is now being
brought before the Board.
LUKE:
You're dealing with yards and then you go to tons.
TILTON:
The commentator said tons; I was just quoting. They said tons; we use cubic
yards. There is a conversion factor.
LUKE:
Yards are easier to use when you're out there on the jobsite. To be clear, this
ordinance is only dealing with the surface mining issues of the canals, and not the
piping of the canals.
DEWOLF:
Exactly the opposite.
TILTON:
All Ordinance 2001-038 does is propose to change the comprehensive plan by
adopting this non-significant mineral and aggregate resource site list. On Title 18
it does two things. It changes the Code to allow for the piping and maintenance of
canals, but it also changes the Code to add a conditional use to allow surface
mining. They are combined, but Title 23 is specifically limited to the adoption of
this site list.
DEWOLF:
But the resource is also included in 2001-038. The surface mining.
TILTON:
The surface mining is also a part of the text amendment.
Minutes of Board Meeting Page 10 of 36 Pages
Wednesday, November 7, 2001
DEWOLF:
So 2001-038 deals with both, and 2001-039 only deals with the mining.
TILTON:
Opposite. Ordinance 2001-038 deals only with the surface mining; Ordinance
2001-039 deals with actually the zoning code, and putting text into the zoning
code. Ordinance 2001-039 deals with the piping.
DEWOLF:
Okay, we're clear on this now. It's confusing enough to people, so they can testify
as they please on both. There are two issues here, and I suspect that they are both
going to pass or neither will. I doubt if they are going to be split, since they are so
interrelated.
CRAGHEAD:
Right, one amends the comprehensive plan and the other amends the text. You
could pass the one on the comprehensive plan without the other, because that is
just for the surface mining. On the text amendment, though, both are combined in
one ordinance. You may decide to split that ordinance and only pass the part on
surface mining or piping.
DEWOLF:
I've read through all of this stuff and I'm confused. I imagine I'm not the only one.
We'll just talk about all of this together.
TILTON:
If we're going to open it up to public testimony, there are some things about piping
I'd like to mention. Several of the comments we've received have been raised in
response to a proposal that is currently before the City of Bend involving the
piping of Swalley Irrigation District's canal. That is supposedly being funded by
the City.
I just wanted to point out that these text amendments before the Board of
Commissioners today do not affect those properties within the City of Bend. They
only affect those properties outside of the urban growth boundary that fall within
land owned or operated by irrigation districts. There are no specific piping
projects associated with these text amendments. There's no County funding to my
knowledge that's been allocated for any piping projects.
Minutes of Board Meeting Page 11 of 36 Pages
Wednesday, November 7, 2001
DEWOLF:
But, would this allow for piping if the district so chooses and the district funds it?
TILTON:
If the Board were to approve this, it would allow them to pipe without getting a
land use permit.
DEWOLF:
They would still have a potential legal issue with the owner of the property, and we
wouldn't be a party to that.
TILTON:
Right. It is a separate issue. The property rights that are vested in the easements are
a separate issue from the regulatory authority. The regulatory authority just clarifies
that the irrigation districts have the right to operate, maintain and pipe within their
existing canals. It doesn't confer any additional rights to those easements.
DALY:
Isn't it true that some of the letters we've received are from the folks within the City?
TILTON:
My investigation into where they live indicates that one is within the City of Bend,
and the other two are in the MUA-10 zone of the County. It's hard to say; some
are, some aren't'.
DALY:
I just wanted to clear up the facts; maybe some of these folks are concerned that
what we do is going to affect the Swalley project. We want to be sure that what we
do will not have an effect on what goes on in the City.
DEWOLF:
Even though I confused the issue for at least two people, the Reynolds and Lucy
Parks. I confused Swalley and Squaw irrigation districts.
GEORGE READ:
I believe that it is important to have the staff report on this piping issue. You are
combining the hearings, and we haven't had a staff report on what we're proposing
to do. At this point we have not said what it is we are proposing to do, or why. I
think it is really important that Cathy (Tilton) present that staff report before we
have testimony.
Minutes of Board Meeting Page 12 of 36 Pages
Wednesday, November 7, 2001
TILTON:
What I did was talk about the public comments. The initial staff report that I gave
was related to surface mining. In regard to the piping issue, the Squaw Creek
Irrigation District is the applicant. They would like to amend the County zoning
ordinance that would allow irrigation districts to operate, maintain and pipe
existing irrigation systems, and allow as a conditional use surface mining activities
for off-site use and sale of the material. The County historically has not regulated
piping in existing irrigation district systems unless the project involved work
within the wetlands. Then a conditional use permit is required for fill and removal.
What the proposed rules do is clarify that the operation, maintenance and piping of
existing irrigation systems are uses that are permitted outright, and defers
regulatory authority for piping projects involving wetlands to the Division of State
Lands. This is the state agency that regulates wetlands.
We and the Planning Commission are recommending that the Board conduct the
hearing, consider testimony, and adopt the proposed ordinance. One of the other
issues that came up in some of the letters is the concern over the real or perceived
loss of aesthetic and/or property values by piping the canals. The County has not
historically regulated piping unless the work involved wetlands. The existing
conditional use criteria set out to protect the wetlands do not involve review
criteria relative to aesthetics or property values. The proposed rules defer to the
Division of State Lands any regulatory authority regarding wetlands.
DALY:
Why is Squaw Creek bringing this forward if we don't regulate it?
TILTON:
My understanding is that Squaw Creek Irrigation District wanted to clarify in our
rules that the operation, maintenance and piping are uses permitted outright. As
legal counsel has advised, in the EFU zone, because of state law, we aren't allowed
to regulate piping. What these rules do is expand the discussion of piping to other
zones, including the rural residential zone.
LUKE:
Squaw Creek sometimes dries up in the summertime. They've done an extensive
amount of work to keep a flow year-round. Part of it is that if you can save water
by piping it, this improves the fish habitat. There are a lot of people spending a lot
of time making that creek run year-round.
Minutes of Board Meeting Page 13 of 36 Pages
Wednesday, November 7, 2001
LUKE:
Not only does this ordinance not affect piping in the cities, it does not affect the
piping on EFU ground, either. It would be only in non-EFU ground, outside of the
city limits.
READ:
I think you have it all except one point. It doesn't apply to EFU zones except
where there are wetlands. Some of the canals on national wetland inventory have
been designated as wetlands, in the canals. Therefore, we have to process fill and
removal permits in order to put piping in there. What this ordinance proposes to
do is defer that to the state. We have dual regulations on wetlands in Deschutes
County right now, and we felt that for the purpose of canals, we could do without
dealing with it.
The other thing I want to emphasize is the aesthetics issue. We can't deny piping
canals because of aesthetic issues; only because of wetland impacts. That's the
only review that we have currently in our code, and that's what we would run
through the process. This would eliminate that process and defer it to the state,
where they have a process of their own for filling canals.
DEWOLF:
Either way, we can't regulate this on aesthetics.
READ:
I don't know if we can't, but we don't now. This wouldn't change that. A lot of
people don't want to pipe canals because existing ones are aesthetically pleasing.
You can pipe canals now with no review regarding aesthetics; only regarding the
impact on wetlands.
Wetlands are defined as areas that are wet a certain amount of the year, that
provide certain kinds of habitat, and it has a lot to do with vegetation. The state
has definitions on this. We adopted a definition in our code based on the national
wetlands inventory. Because we don't have a lot of wetlands, we didn't do a lot of
wetlands work. We just adopted the national wetlands inventory, and look at them
individually as people apply for permits.
LUKE:
The Planning Commission has been mentioned several times. For the benefit of
the audience, it's a seven -member group of citizens that actually hears a lot of these
things before we do. This has already been through a pretty extensive process.
Minutes of Board Meeting Page 14 of 36 Pages
Wednesday, November 7, 2001
READ:
We met with the Department of Fish & Wildlife and the Division of State Lands to
talk about these issues.
DEWOLF:
I'm now going to open the public hearing, and ask that people keep their comments
as brief as they can.
MATT CYRUS:
I represent the Deschutes County Farm Bureau. (He read excerpts from a three-
page letter, and submitted the letter into the record; a copy is attached as Exhibit
A.)
LUKE:
Are you suggesting that the material in the canals belongs to the property owners?
CYRUS :
I feel it would be theirs. For example, in the Squaw Creek Irrigation District, the
excavator cleaned out the ditch and took out good gravel. There are serious
potential problems if a cleaning out a ditch could end up being so much bigger.
DALY:
Do you object to the irrigation districts' right to clean their canals?
CYRUS :
If there isn't a financial benefit to selling it, there is less risk of abuse.
Philosophically we oppose governing bodies competing with private enterprise.
Irrigation districts should have to put this material out for competitive bid instead
of selling it on the open market. Members of the public are the owners of the
district. This protects the market.
DEWOLF:
If the ordinance is changed, and requires that this material be put out to bid, you
would then support it?
CYRUS :
We'd also like to see a cap, a 5,000 -ton limit, since Oregon generally uses tons
rather than yards to compute. We would propose that irrigation districts, or anyone
outside the surface mine zone, be limited to a 5,000 ton per site limit.
Minutes of Board Meeting Page 15 of 36 Pages
Wednesday, November 7, 2001
DEWOLF:
What if it needs to be dredged later? What if it becomes clogged again?
CYRUS:
We suggest 5,000 yards that could be sold, a one-time excavation. You have two
issues; these are new construction and annual cleaning. The 1,000 yards is
currently exempt for cleaning, on an annual basis. This should be sufficient for
ongoing maintenance; with a 5,000 -yard one-time sale to provide for building a
pond or something similar. This does not account for what's in the proposal, with
four sites with an aggregate total of over a million tons. This is a huge impact in
this business. This changes irrigation districts from water delivery entities to
surfacing mining operators.
This also allows a huge loophole, as any aggregate producer in the county could
approach an irrigation district, promise a new reservoir, and suddenly they have a
mine without having to go through normal process. Squaw Creek is looking at a
200 -acre site like this. It has been discussed. The ordinance in general is not
necessary, but at the very least we would like to see some safeguards.
LUKE:
Did you testify before the Planning Commission?
CYRUS :
I didn't know about it. There was just a little blurb in the Bulletin recently.
TILTON:
Notices were mailed twice, as required, and were posted in a public place and
printed in the Bulletin. We went beyond requirements and notified OCAPA (the
Oregon Concrete & Aggregate Produces Association, Inc.) twice, along with
several major mining operators in town and two attorneys who frequently represent
mining interests.
FRANK CROSSER:
I live at 64890 Glacier View Dr. I second the comments made by the Farm
Bureau man. I will submit some of my information in written form during the time
period allowed. I'm a resident, not a farmer. There are several reasons to offer to
the Commissioners against the proposed changes in piping regulations.
Minutes of Board Meeting Page 16 of 36 Pages
Wednesday, November 7, 2001
CROSSER:
First, the districts have no power to do this now. The amendment process is
difficult to protect people. I can't imagine the authors of the document leaving out
piping as an oversight. Even years ago when they addressed water issues, ditches,
laterals and flumes, they all had indoor plumbing, and of course water could
suggest piping.
DEWOLF:
That was over 100 years ago. I'm not sure they did have plumbing in all their
houses. Orville and Wilbur Wright didn't anticipate what we'd be doing with
planes in Afghanistan, either. The irrigation district people may have not have
anticipated these problems.
CROSSER:
There was extensive knowledge of piping water, flumes, reservoirs and aqueducts.
DEWOLF:
If you could include some evidence of that in your written document, it would be
helpful. The population in this area at that time was very small, and piping was
expensive; they probably didn't imagine this area of scrub brush and trouble ever
growing the way that it has. Evaporation and piping may not have been considered
that long ago.
CROSSER:
Secondly, if the planners don't consider aesthetics, then what are the planners
doing? Aesthetics are involved with the piping concerns of the canals. The
principles of the aesthetics of flowing waters is embodied into our national law, the
Scenic Waters and Rivers Act recognize that.
The third reason, we are not required in the State of Oregon to have an
environmental impact statement on these projects. We have protected many
features in our environment. This places the responsibility on the Board of
Commissioners to make up for the lack of an environmental impact study. You
guys are the final line in this case.
Minutes of Board Meeting Page 17 of 36 Pages
Wednesday, November 7, 2001
CROSSER:
Many people wish the Los Angeles Water Authority had been required to use
something like the Environment Protection Act in regard to the Owens Valley. I'm
not suggesting that we'll turn into the Owens Valley if we pipe canals. Our
environmental concerns regarding water cycles in the Deschutes Basin are very
complicated. Some are in aquifers. This is an inexact knowledge. There may be
environmental impacts in the future; this needs an extensive environmental study,
one that is quantified and approached scientifically.
This may sound corny, but with the tenor of today's time, people won't laugh. We
in the United States don't recognize Abraham Lincoln as a political philosopher,
but he had a genius to put philosophy in a very few words. Of the people, by the
people, and for the people. The power to govern is assigned by us to our
governors. By the people means a representative government. They must be in
step with the people, or the vote of the people. Necessarily these people must be
for the people. What government does must reflect the will of the people.
In Sisters in the 1990's, customers of the Squaw Valley Irrigation District voted a
piping project down. Lots of people have signed on to save our canals.
(Applause from the audience.)
DEWOLF:
We will leave the record open for seven days for additional written testimony.
GARY DEJARNAT:
I live at 63885 North Highway 97, Bend. I oppose the changes to Title 18. I'm a
private landowner, and if the material to be moved is on my property, it cannot be
taken without my permission. Throughout this they talk a lot about piping; House
Bill 2788 referred to piping many times, and the legislature turned it down. I
received an e-mail from Tim Knopp, who voted against it. I don't want to
empower the irrigation district and give them authority to do this, as this change to
Title 18 currently exists.
LUKE:
So you're not opposed to mining, if it's your dirt, and they compensate you for it.
You realize that sometimes material needs to come out of the canals.
Minutes of Board Meeting Page 18 of 36 Pages
Wednesday, November 7, 2001
DEJARNAT:
They came through once since 1987, and cleaned it once. I invite the
Commissioners to come out and view the canal. Regarding Title 18, it's no
different if I got a group of people together to make a farming law. It seems like
no difference to me.
MIKE SMITH:
I live at 20985 Scottsdale Drive, in the City, and I'm not on the Swalley system. I
have had no impact yet, but I'm located along COI (Central Irrigation District)
land. They have no plans to pipe, but it could happen. The criticism is that there is
no notification that this might happen; it was only in the newspaper. When we
decided to buy our property, we were told we own the land underneath the
irrigation water, so we should have the opportunity to oppose this type of change.
BRIAN PAPE':
I agree with what everyone else has just said.
MILTON LA FRANCHI:
I'm not up here to apologize to the Board. I'm glad I did sign up to speak after
what I've heard. One thing you said was to testify now, as you may not be able to
at a later date.
DEWOLF:
What we said is that if someone doesn't mention something specific at this time, in
an appeal you can't bring that particular point up.
LA FRANCHI:
I have no problem with that. I have done considerable research on this already. I
live in the area, and own property on the canal, which is on the west boundary of
my property. I've been a member of the Swalley District for 25 years. I got into
this recently, just during the past three months or so, and I really became aware of
the situation when I read the Bulletin articles. In my own neighborhood, three or
four neighbors have a large amount of Swalley water rights. I contacted my
neighbors and they said they weren't aware of this either. All of them are against
the proposal. I'm opposed to it in no uncertain terms.
DALY:
To the mining or the piping?
Minutes of Board Meeting Page 19 of 36 Pages
Wednesday, November 7, 2001
LA FRANCHI:
I have tons of rock they can get for nothing. It's the piping that's a problem.
DALY:
Do you understand that we don't regulate piping now? They still have the right to
pipe those canals if they want to.
LA FRANCHI:
Then why are we here? The City of Bend and Swalley got together, and decided
more water will be needed for the City of Bend, and Swalley is the most secure
district and the easiest to use.
L1o] 11.4
When you pipe the ditch, the saved water goes into the Deschutes River. The
middle section from the dam to the reservoir. State law requires mitigation; when
the water goes into the Deschutes, this allows them to drill for a well. Irrigation
water is not used for drinking.
LA FRANCHI:
Where I live, in an EFU zone, no piping is allowed anyway.
GEORGE READ:
It's just the opposite. You can read the Code, and although it's debatable, it is
allowed outright in the EFU zone. Our interpretation is that they can do it today, if
the irrigation district has permission to do it on the property. We have no authority
over this. This proposes clarifying that piping is okay. It falls under the operation
and maintenance of the system. Under that definition, piping seems to fit.
State status says irrigation canals can deliver lines, those structures and accessory
operational facilities associated with the district. We believe that legally piping is
probably included in that; that's how we've treated it in the past. We propose not
regulating piping in wetlands. Right now we regulate piping in wetlands. There's
a misunderstanding because I said we didn't want to regulate aesthetics.
Aesthetics aren't regulated today. If we had an application to pipe in wetlands
today, we would not consider the aesthetics, just the environmental impacts. We
don't want to regulate piping in wetlands, as this is already regulated by the state.
Minutes of Board Meeting Page 20 of 36 Pages
Wednesday, November 7, 2001
DALY:
If the irrigation district wants to pipe a canal, do they need the County's
permission?
READ:
If it is located in a rural residential zone, or in a wetlands area. Otherwise, if it's in
an EFU zone that is non -wetlands, they can do it without permission.
DALY:
So they can pipe all the canals they want to, under present law, with those two
exceptions, without asking for a permit? They have the right to do that?
READ:
Yes. That's correct.
LA FRANCHI:
Are you saying that the district has the authority to lay pipe in their canals?
READ:
I don't know. All I'm talking about is the County's rules. There's a whole other
set of rules out there. It depends on whatever your easement and right of way
documents say. The County only governs whether they impact zoning rules.
LA FRANCHI:
Why are we here before the Board, then? Does the Board of the Commissioners
have the authority to decide on this ordinance as it pertains to piping?
DEWOLF:
Yes, we have that authority.
LUKE:
Yes, the Swalley board probably could, but they have to deal with the other aspects
as well. They will go through a substantial process with the members of the
district to fund any piping.
LA FRANCHI:
The district person, Roger Crowley, has explained this. I have questions about the
money, too. I don't know where it would originate. Someone said it would come
from some water conservation fund. There's a lot of research to do still. We are
well aware there are a lot of aspects of this issue that are out of the County's
jurisdiction.
Minutes of Board Meeting Page 21 of 36 Pages
Wednesday, November 7, 2001
TAMMY SAILORS:
I live in the County; I'm a small acreage owner, and the canal runs through my
land. I support these proposals. As a water user and water right owner, I applaud
the district's efforts to keep costs down. Selling these materials offsets other costs
of running the district. I would have to pay to have it removed.
I'm also a planning commissioner, and the Planning Commission spent a lot of
time talking about this. We also talked with various public agencies. The seven of
us unanimously want it to be enacted. Piping is a big issue, but it is separate from
this issue. Currently, it is allowed outright in some cases. The text amendment
just makes it clearer.
I'm also on staff at Central Oregon Irrigation District. All of these efforts are not
only done for conservation, but for some cost savings and efficiency reasons. I
support this text amendment completely.
DALY:
What's the difference between piping and lining the canal?
SAILORS:
Lining still allows evaporation.
LUKE:
The end users of the canals will also have more water pressure. Lining doesn't
always hold up that well.
SAILORS:
When the Planning Commission worked on this, I wasn't on staff at COI. The
beneficial uses for water once it is diverted do not include recreation.
MATT SUMMERS:
I live at 63911 N. Highway 97, Bend. I'm a twelve-year resident. I ask that you
not approve this text amendment to Title 18. It's a property rights issue. I
understand that you have no control over some of these things, but I don't feel the
irrigation district should be authorized to arbitrarily be able to change easements or
uses.
LUKE:
Only a property owner can grant or change an easement.
Minutes of Board Meeting Page 22 of 36 Pages
Wednesday, November 7, 2001
SUMMERS:
It's my understanding that by changing this text, the verbiage here could have the
effect of setting a precedent so that the irrigation districts can use this to put a pipe
through my property as well, even though I'm not in the Squaw Creek Irrigation
District.
DEWOLF:
What my understand is, from our Legal staff, is that this is not the case. In fact, if
your easement does not allow piping, it's a matter for the courts. This does not
change the easement you have that runs with your property.
SUMMERS:
I feel that it can be construed to allow them to do this.
DEWOLF:
There are two separate issues here. What is being proposed to us by the Planning
Commission is a clarification; they feel piping is already allowed. We don't know.
In fact, if you believe that piping is not allowed according to your easement, it's a
matter for the courts.
SUMMERS:
I am prepared to fight that battle. I represent the Save our Canals Association,
which consists of approximately 200 people. One of our main concerns is notice
and awareness of exactly what's going on with irrigation districts.
The aesthetics issue is one of the main reasons why I moved to Central Oregon. If
it is not part of your jurisdiction, it needs to be. We all live here for the same
reasons, including aesthetics, the weather and the atmosphere. For the irrigation
districts to portray waterways as merely carriers of product is ludicrous. It's akin
to saying we don't need trees downtown, or lights, or we don't need to decorate the
parkway. Aesthetics must be addressed and considered.
LUKE:
Do you have a water right?
SUMMERS:
Yes, I do.
Minutes of Board Meeting Page 23 of 36 Pages
Wednesday, November 7, 2001
LUKE:
Part of the canal's purpose is to deliver that water to you. I would point out that I
don't always know why they go where they go. If the irrigation district found
another right of way, perhaps in a more straight line, they could abandon the
existing easement, fill in the ditch and pipe through another route. Government
entities cannot take an easement on your property without permission or
condemnation. They cannot change an easement; it goes with the property.
SUMMERS:
I feel it's a precursor to give them precedent to change the verbiage in the
easement.
LUKE:
Easements are property rights, and that's a whole different ball game.
CRAGHEAD:
This says that the irrigation district doesn't have to get a permit from the County.
It doesn't mean that they don't have to get a permit from the property owner.
Easements are private agreements that occurred sometime in the past; they run
with the land. In order to change an easement, both parties have to agree to the
change, or there needs to be a change of circumstances such as an abandonment of
the easement by the district. The County government cannot participate in this.
SUMMERS:
I'm all for development, and am a contractor and part of a fourth generation of
families dependent upon development, but I believe that development without
consideration for aesthetics written into County statutes as well as city and state
laws, is irresponsible. Those things must be considered. We also need to consider
wildlife. Wildlife habitat zones house ducks, quail, and deer; this is a huge
consideration. I'm not necessarily an environmentalist.
DEWOLF:
But you are now since you want to keep your canal open.
SUMMERS:
Exactly.
Minutes of Board Meeting Page 24 of 36 Pages
Wednesday, November 7, 2001
MARK THALACKER:
I'm the manager of Squaw Creek Irrigation District, the applicant for the text
amendment. I spent a lot of time on phone today with state agencies, and would
like to convey their input as well.
DEWOLF:
I would like to see these agencies' information in writing, from them, within the
next seven days if possible.
THALACKER:
That would be fine. I'd like to address mining first. I'd like to thank Cathy
(Tilton), George (Read), the various state agencies, and OCAPA. George and
Cathy set up meetings with DOGAMI (Department of Geology and Mineral
Industries), OCAPA, the Oregon Department of Fish & Wildlife, and the
Department of State Lands. The law has prohibited us from moving large amounts
of material so that we can build new reservoirs. On the Goal 5 inventory list,
Tumalo Irrigation District has 4 million cubic yards. Cyrus has 3.2 million yards.
Our resources are insignificant, so we can't get on the Goal 5 list.
Gary Lynch, the head of DOGAMI, said that except for land in Columbia, the vast
major of Oregon counties permit these non-significant types of inventory in EFU
zones. Deschutes County doesn't. This change does not give us a permit, and we
still would need to go through the conditional use permit process. I received
OCAPA's letter last night (copy attached as Exhibit B). OCAPA has no problem
with putting material out to bid. That can be done in the conditional use permit
process.
LUKE:
What about the cleaning out of ditches?
THALACKER:
It's only dealing with reservoirs. Canals fall under 1,000 yards. That's never been
a problem in dealing with landowners when moving that material. In some cases
we give the material to the landowners if they want it. Our existing reservoir flows
lots of sand through the sand trap. Where the main canal comes into the reservoir,
it's a settling pond. Because we didn't have a sand trap for many years, there is
lots of sand already in canals. We try to set it up so we can use our regulating
reservoirs to trap this material so that it doesn't get deposited in the canals.
Minutes of Board Meeting Page 25 of 36 Pages
Wednesday, November 7, 2001
THALACKER:
Now that we're doing conservation - six pipelines in the last four years - we use
quite a bit of fill for backfill. DOGAMI questions whether this material can be
moved; but the County has no problem with it.
In terms of regulations on all this, every time we have done a pipeline, there's a
full environmental impact study done. These are grant moneys, as we can't afford
to do this ourselves. The District donates labor and backfill to match these funds.
The Fryrear canal is to be done in the early spring. We also worked with the U. S.
Forest Service to run a ditch along a Forest Service road, at the request of a
landowner who didn't want construction vehicles on his property.
The ordinances ask for an emergency clause. We do have a time problem. The
grant funds on Fryrear have to be spent this calendar year, by December 31. We
have to order pipe and fixtures, and we need to know we can backfill. It's very
difficult; the third grant of this was an OWEB (Oregon Watershed Enhancement
Board) grant, which requires the County to sign off on projects, along with the
Division of State Lands.
The Fryrear project will put 1.5 CFS into Squaw Creek on a permanent basis,
following the three that we're putting in there for the Cloverdale project. Fifty
percent of the water savings is dedicated to in -stream flows.
In dealing with the piping, there are no effects on property rights or easements, and
we work with, and work things out through mediation with, water users and non-
users.
The Forest Service recently did a complex watershed assessment; the Upper
Deschutes Watershed Council also says Squaw Creek is a top priority. We need to
sell the material; we have no ability to do pipelines without that source of income.
We don't want to bill the water users. It is set up with half in kind, half through
grants. It's the only way we can continue to do this conservation work.
When the Clean Water and Endangered Species Acts become major issues here,
which we feel is going to happen based on the fact that the Bureau of Reclamation
has just declared the whole river system historical bull trout habitat, we'll be ready.
We are trying to take steps to mitigate in advance.
Minutes of Board Meeting Page 26 of 36 Pages
Wednesday, November 7, 2001
THALACKER:
As far as aesthetics are concerned, consider, for example, Detroit Lake. All top
law firms declined to handle lawsuits on this. There is nothing in the water right
that gives them an aesthetics claim. That is why the Detroit Lake people did not
sue the U.S. Forest Service or the Corps of Engineers.
The Bureau of Reclamation did a $3 million lining project in Central Oregon, and
for the most part it has failed. It is a maintenance nightmare. Once you line a
canal, you can't go in and remove any material without severing the lining. They
have limited lifetimes, and they don't prevent any runoff of chemicals, fertilizer or
manure from going into canals. We are in the process of working on the 1010 Plan
for the Upper Deschutes; DEQ (the Department of Environmental Quality) says a
number of rivers are listed for pollution flow. We are trying to address these
issues.
I do have some written testimony from Robert Friend of the Deschutes County
Farm Bureau to submit (copy attached as Exhibit C).
DALY:
Did you say you need a bunch of excess material for fill to use as in-kind? Also,
are you not objecting to putting the excess material out to bid?
THALACKER:
You could make it part of the conditional use permit.
LUKE:
So you need two things. You need fill for your own uses; and you also need to sell
some of it for funding.
THALACKER:
We use that money to pay for equipment that we normally would not be able to
afford, and also the operator's salary, fuel, and other things.
ANDY TILMAN:
I live at 20510 Swalley Road. My wife, Cheryl, and I have 80 acres of EFU land,
with 67 acres of Swalley Irrigation water. We've spent 26 years full time as a
farmer and a vet. We employ agricultural workers, two full-time and two part-
time. We live on the original homestead of the founder of the Swalley District.
Minutes of Board Meeting Page 27 of 36 Pages
Wednesday, November 7, 2001
TILMAN:
I believe Title 18 should be separated from the surface mining impact areas. I
believe piping should require a conditional use permit, for the following reasons.
According to senior members of the Oregon Department of Agriculture, there is a
direct correlation between surface water and the aquifers. Piping of the district
canals may result in a reduced water level of the aquifer, which is used throughout
the district for domestic wells. 650 feet is a typical depth of the local wells. Most
local depend on this or the Avion Water District. The ordinance may adversely
affect a large population that relies on using wells. Swalley is the oldest district,
when members purchased their water rights; they rightfully believed they were
purchasing the oldest and most adjudicated water rights in the county.
Swalley wants to pipe its district, including those in EFU zones, starting in 2002.
I don't believe the district has the right to give away these rights in the name of in -
stream flow or conservation, and it has never asked its membership for their
approval. If mitigation between City and Swalley exists, then this is a classic
urban -rural divide type of issue.
LUKE:
The state can come in and tell you not to use it. And the feds can take it away, no
matter how long you've had it. Some of this stuff is starting to happen, and there is
a very large group of water users, environmentalists and other groups that have
been working with the cities and counties on this issue. This stuff is getting very
serious. There will be no new wells drilled for any cities. It is not an urban versus
rural issue. This is an entire region. The whole basin of the Deschutes River and
the Crooked River are tied up in this.
TILMAN:
Is there a mitigation issue between Swalley and the City of Bend?
LUKE:
You are not going to drill a major commercial well, for irrigation or for city water.
It won't happen without mitigation.
TILMAN:
So it is fair to say that if the Swalley district conserves water by piping, that would
allow Bend to access more water from the aquifer.
Minutes of Board Meeting Page 28 of 36 Pages
Wednesday, November 7, 2001
LUKE:
Eventually, perhaps. The problem is not before the dams in Bend, it's the section
in the middle. That's where the fish habitat comes in. There's not enough flow to
protect the fish habitat there. That's where most of the mitigated water will go.
Otherwise you are going to get the Feds in here, and right behind the Feds is the
state. We want to have a local solution as much as possible.
TILMAN:
So as I understand you, there is a correlation between the irrigation district saving
water and future city use.
LUKE:
No. The City puts it back into the river. The water mitigation goes back into the
center part of the river, and you increase the flow from the Riverhouse north. The
study shows the interrelationship between ground water and surface water, this
allows the City to eventually drill another well.
DEWOLF:
There is a correlation. Without mitigation, the City won't be drilling wells.
LUKE:
And neither will commercial farmers.
TILMAN:
Swalley Irrigation District members are losing their water rights with this piping
plan, without compensation. My property borders about a half -acre or more of the
canal. It provides shade and evaporative cooling for the large farm animals. Loss
of this resource to me is not a cosmetic one, but is one that affects the well-being
of my animals. This is one of the reasons I purchased the property. There is a real
effect to real farmers.
LUKE:
You won't lose your water rights.
TILMAN:
I would use the effect of the shade habitat and evaporative cooling.
Minutes of Board Meeting Page 29 of 36 Pages
Wednesday, November 7, 2001
LUKE:
We are talking about water rights. How do you believe that you would lose your
water rights? You still get your water.
TILMAN:
It could also affect the water table of my well. The Swalley plan will destroy
wildlife habitat along the canal. The District needs the opinion of the ODF&W on
these specific locations. I regularly see over 50 deer, plus lots of ducks, geese, and
other small wildlife.
It's ironic, there's a 50 -foot easement on either side of canal for access. If it is
channeled to an 8 -inch diameter pipe, including the width of the canal, it then goes
to a 150 -foot easement.
LUKE:
You could negotiate that.
TILMAN:
Others feel a loss of property value, and many of them can't afford riverfront
property so they purchase canal front property instead. The Swalley canals are like
a seasonal stream, which have water in them for seven months of the year, plus a
monthly stock run in the winter. I feel it would destroy the rural nature and
features of the community. It's the same as rimrock on a building site or a scenic
corridor along the Deschutes River.
Regarding surface mining, aggregate removal should be limited to the existing
canals, not the unused 150 -foot easement area.
KEITH CYRUS:
I live in the Cloverdale community near Sisters, in the Squaw Creek Irrigation
District. I have a surface mine close to or adjacent to the irrigation district's
property. We had an opportunity to provide some material to the Sisters sewer
project, and our property is zoned surface mining. George Read had us served
with a citation when we tried to use it, so we got busy and jumped through some
hoops. What's being proposed would make it a lot easier for me, as we plan to put
in a 20 -acre fish pond.
Regarding noticing, I had hoped I would have been noticed about this process.
Minutes of Board Meeting Page 30 of 36 Pages
Wednesday, November 7, 2001
CYRUS:
Regarding mining, the McKenzie Canyon Reservoir was built in the 1950's, and
was the first of a project to eliminate fluctuations to the lower part of the project.
Over the years, some tried to enlarge the capacity, but there were too many leaks.
There's not much potential there. Regarding the Watson property, five neighbors
went together to construct it. There is lots of material still sitting in there that
needs to be dealt with.
Piping the canals will kill the trees. Also, the district doesn't work that closely
with the landowners, and they are just running up big legal fees.
And regarding the Planning Commission, have they declared any potential conflict
of interest? I'm concerned about the direction this is heading. It might end up at
the state level, asking for their approval. Case law does not support piping.
RON NELSON:
I'm the Secretary and Manager of Central Oregon Irrigation District. I will submit
some written testimony. We're not looking to save water because there's nothing
else to do. I'm a member of various groups, and the general opinion is that the
district and any water user will have their hands full of a variety of federal laws
sooner or later.
Our involvement with conservation in general is not out of disrespect of the
neighbors; it's to protect the ongoing use of the resource. Other concerns want
water in river, so we are trying to protect the interests of the members of the water
district.
Regarding the mining ordinance, the irrigation district must operate, maintain and
distribute water efficiently. This varies from year to year and location. A 3,000 -
ton limit might be inadequate if the entire district is considered a single site. We
would like to offset some expenses by being able to dispose of the excess material.
We don't want the added hoops of additional conditional use permits to remove
material.
LUKE:
If the Feds come in, they can interrupt people's water rights; i.e. Klamath Falls.
NELSON:
There have been other areas like that, too; with the Feds trumping local water
rights.
Minutes of Board Meeting Page 31 of 36 Pages
Wednesday, November 7, 2001
LUKE:
The ODF&W does not play well with others when it comes to fish. That's my
personal opinion.
NELSON:
We want to protect the interest of our water users first. What is driving this is that
we have federal issues that will rise up soon.
Piping is preferred, but we want to be able to use any conservation measure
necessary. Lining means big maintenance problems. When we pipe, we reduce
the easement land needed significantly.
LUKE:
Do you help bring back the land?
NELSON:
We put in some natural vegetation, with some success. Some people want us to
pipe so they can develop their land more fully. Some are concerned about the
safety of the open canals. We are driven by the need to protect water resources.
TODD BLESELL:
I live at 63625 High Standard Drive. I've had a residence on the canal for two and
one-half years, inside the city limits. There's definitely an evaporative quality with
a canal, evidenced by the growth along the canal. It's a mistake to disregard the
riparian value of life along the canals. This is definitely a real estate value issue for
properties along canal. A point can be made toward conservation, aesthetic value
and livestock; a liner would be beneficial as a compromise, instead of a pipeline.
TODD GRIFFITH:
I'm the manager of Swalley Irrigation District. We are in the very preliminary
stages of a pipeline situation. We are willing to educate and work with people as
much as we can. We're working on the design stage at this point; we sent out
newsletters, had meetings of the Board of Directors, and so on. We're trying to
communicate with people.
Regarding piping versus lining, I've worked with liners. With liners you lose some
of the vegetation as well. Water will not seep into where the riparian vegetation is.
We promote people having ponds. We're happy to educate people; they can get
information through the internet at swalley.com, or they can call us at 388-0658.
Minutes of Board Meeting Page 32 of 36 Pages
Wednesday, November 7, 2001
DEWOLF:
We will leave the record open for seven days, until 5:00 p.m., Wednesday,
November 14.
CRAGHEAD:
This is a legislative manner, so there's no need to close the record at this time.
LUKE:
We would like any written information as soon as possible. There may be
additional questions, and we want to be able to ask them in plenty of time.
CRAGHEAD:
Ex parte contacts do not apply in a legislative matter. You can set it up any way
you want.
DEWOLF:
I'll ask that all written material be submitted to us within a week. That's
Wednesday, November 14, at 5:00 p.m. This will give us adequate time to read
over the information. If we don't get your letter until just before the meeting, we
may not have a chance to go over it thoroughly.
LUKE:
If you submit something in writing that's new, one of us can call you to talk about
it further.
DEWOLF:
We will meet again on Tuesday, November 20 at 10:00 a.m. to make deliberations
on this issue.
Before the Board was Consideration of Approval of the Consent Agenda.
LUKE: Move approval.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Minutes of Board Meeting Page 33 of 36 Pages
Wednesday, November 7, 2001
CONSENT AGENDA ITEMS:
5. Signature of a Personal Services Contract with Wert and Associates, Inc. for
Work to be Performed for the La Pine National Demonstration Project
6. Signature of a Personal Services Contract with Daniel M. Cason for Work to be
Performed for the La Pine National Demonstration Project
7. Signature of License Agreements with Five Property Owners in the La Pine
National Demonstration Project
8. Signature of Acceptance of a Deed of Dedication of Property (Located on O.B.
Riley Road) from Barbara Fraser to Deschutes County, for Road Realignment
Purposes
9. Signature of Resolution No. 2001-077, Initiating the Vacation of Portions of
"A" Avenue (Terrebonne)
10. Signature of Order No. 2001-094, Accepting and Approving the Engineer's
Report and Setting a Public Hearing to Consider the Vacation of Portions of
"A" Avenue (Terrebonne)
11. Acceptance of a Drug -Free Communities Grant from the Federal Office of
Juvenile Justice and Delinquency Prevention (subject to legal review)
12. Signature of Resolution No. 2001-084, Transferring Appropriations within the
Personnel Funds of the Fiscal Year 2001-2002 Deschutes County Budget, and
Directing Entries
13. Signature of Resolution No. 2001-085, Appropriating New Grant Funds
(Federal Projects) to the Fiscal Year 2001-2002 Deschutes County Budget, and
Directing Entries
14. Signature of Resolution No. 2001-086, Appropriating New Grant Funds to
Commission on Children & Families Funds of the Fiscal Year 2001-2002
Deschutes County Budget, and Directing Entries
15. Chair Signature of an Oregon Liquor Control License for Chen's Garden
Restaurant, Sunriver
Minutes of Board Meeting Page 34 of 36 Pages
Wednesday, November 7, 2001
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11
COUNTY SERVICE DISTRICT
16. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extension/4-11 County Service District in the
Amount of $3,386.25.
LUKE: I move approval, subject to review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Second.
DEWOLF: Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
17. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
$4,694.65.
LUKE: I move approval, subject to review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Second.
DEWOLF: Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
18. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $912,260.24.
LUKE: I move approval, subject to review.
DALY: Second.
VOTE: LUKE: Yes.
DALY: Second.
DEWOLF: Chair votes yes.
Minutes of Board Meeting Page 35 of 36 Pages
Wednesday, November 7, 2001
19. ADDITIONS TO THE AGENDA
None were offered.
Being no further items brought before the Board, Chair Tom De Wolf adjourned the
meeting at 1:10 p. m.
DATED this 7th Day of November 2001 for the Deschutes County Board of
Commissioners.
ATTEST:
/I/ 1
Recording Secretary
e nis R. Luke, Commissioner
ichael M. 6Daly, C missioner
Attachments
Exhibit A - Letter from the Deschutes County Farm Bureau dated November 7, 2001 (3
pages)
Exhibit B - Letter from Oregon Concrete and Aggregate Producers Association, Inc.
(OCAPA) dated November 6, 2001 (2 pages)
Exhibit C - Letter from Robert L. Friend dated November 7, 2001
Exhibit D - Sign -in sheet for the November 7 Public Hearing on irrigation district issues.
Minutes of Board Meeting Page 36 of 36 Pages
Wednesday, November 7, 2001
.0.
DESCHUTES
COUNTY
FARM
BUREAU
` I YOUR VOICE IN AGRICULTURE
16975 Green Drake Ct. Sisters, OR 97759
November 7, 2001
Deschutes County Board of Commissioners
1130 NW Harriman
Bend, OR 97759
Re: Ordinance Nos. 2001-038 & 2001-039
Dear Sirs,
On behalf of the Deschutes County Farm Bureau, we appreciate the opportunity to comment on
the changes proposed by the Squaw Creek Irrigation District to Titles 18 and 23. We firmly
believe the proposed ordinances are both unnecessary and bad public policy. In addition, we are
philosophically opposed to public entities operating commercial business ventures in direct
competition with the private sector. The Squaw Creek Irrigation District "SCID" is proposing to
loosen a number of zoning ordinances in order to allow irrigation districts to conduct surface
mining that might not otherwise be allowed. It should be noted that the applicant has previously
attempted mining exemptions for irrigation districts at the state level and been denied each time.
Our comments are not intended to address the legality or illegality of the applicants past or
present surface mining operation, but are intended only to address the proposed changes to the
DCC text and how it might affect public policy and agricultural zones in general.
General
The applicant claims that these changes are necessary in order for irrigation districts to sell the
accumulation of sand, silt, and topsoil from their canals, ditches, and reservoirs. This is simply
not an accurate statement. When the various districts in the county were invited to submit sites
that would qualify under this proposed ordinance, only the applicant submitted proposed sites.
All of the proposed non-significant sites are for the excavation of native materials rather than
simple removal of sedimentary deposits in the delivery systems. For example, the sand
accumulation in the applicant's Watson Reservoir I is within the 1,000 yards annually that is
exempt under current law. No text changes are necessary to allow the applicant to clean the
district system. Also, a major point to keep in mind is that irrigation districts do not own the
land that their ditches and canals travel through and therefore do not own the material that they
might remove from these ditches and canals.
The applicant is also proposing to codify specific allowed uses in the various county zones. This
t '4
language is an attempt to insert in county code what they could not accomplish in this year's
legislative session. House Bill 2788 would have added the word "piping" throughout the
statutes dealing with irrigation districts. It failed because it encroached into the property rights
of the land owners where the ditches and canals went through. A change from a ditch or canal to
a pipe has been found by courts to be a change in the scope of the easement and must be
approved by the landowner.
Title 18
1. The first proposed change would add the following language to the Uses Permitted
Outright sections in a number of zones: Operation. maintenance and p ping ofexisting
irrigation systems operated by an Irrigation District except as provided in DCC
18.120.050. We feel this language is an unnecessary addition to the DCC. To our
knowledge, no irrigation district in the state has ever been prohibited from performing
normal operation and maintenance. We believe the proposed provisions are a significant
step toward codifying all specific agricultural uses. The applicant cites ORS
215.283(1)(x) as evidence that the proposed language should be added to code as an
allowed use, but fails to propose adding the entire ORS 215.283(l) to county code. The
reason being is that these uses are defined in state statute as outright uses and therefore
are unnecessary in the DCC. The primary difference is that pipin is not found in ORS
and should not be added to the DCC. We strongly urge the Board not to adopt this
language.
2. The second proposed change would add the following language to the Conditional Uses
section of the same various zones: Surface mining ofmineral and aggregate resources
in conjunction with the operation and maintenance ofirri ation systems operated by an
Irrigation District including the excavation and mining foracilities ponds reservoirs
and the off-site use storage and sale of excavated material. We are concerned that this
is overly narrow and does not address the needs of general agriculture when it comes to
conducting these same activities. We would ask that the references to Irrigation Districts
be deleted. We propose the following replacement language: Surace mining of
mineral and aggregate resources as provided for in DCC 18128 280 This would
significantly clean up and simplify the code and minimize the amount of repetitive
language throughout the DCC.
3. It is our opinion that most proposed limitations should be dealt with in the conditional use
process rather than in code and that any mining activity that moves more than 5,000 tons
off-site is a commercial surface mine, does not belong in an agricultural zone; and should
be subject to the standard surface mining procedures and requirements. The current
exemption limit of 1,000 tons per year is sufficient to provide for annual removal of
accumulated sediment. Furthermore, quasi -governmental entities should not be
competing on the open market with private enterprises due to their significant competitive
advantages ("e" plates, governmental purchasing, tax exempt status, etc.). The change
to # 2 above would then necessitate a small change to DCC 18.128.280 (Exhibit "N").
We would recommend replacing the entire proposed Limitations section with the
following:
a. D. Not more than 5,000 tons of materials generated per site from these
activities may be used off-site, stored, and/or sold.
b. E. All quasi -governmental operators must put any material to be sold up for
competitive bid instead of selling it on the open market.
4. We feel the proposed changes to DCC 18.120.050 (Exhibit M) are also unnecessary and
will open too large an exemption for any fill and removal under the guise of "piping
work." However, if the Board feels such an exemption is appropriate, we feel it should
apply to all of agriculture and all reference to Irrigation Districts should be deleted.
Title 23
The proposed changes came as.a result of the current "Significant Resource" threshold
being too high to accommodate smaller and/or poorer quality resource sites such as the
ones proposed by the Squaw Creek Irrigation District. We strongly believe that their
proposed changes are extreme in the other direction and we propose a compromise. This
compromise would allow for construction and significant cleaning and maintenance work
to be completed on irrigation systems without providing a loop hole that will allow
commercial surface mines to be scattered throughout the protected agricultural lands
under the guise of reservoirs and without the benefit of the ESEE process. With this in
mind the Deschutes County Farm Bureau proposes that instead of creating a new
designation of Non -Significant Inventory, the County should simply define a lower
threshold standard for listing on the Goal 5 Inventory as provided for in OAR -660-023-
180(3)(b). We would suggest a threshold number of 5,000 tons in order to match the
number that we propose as a maximum allowed in the various agriculture zones.
Thank you for considering our comments and proposals. We apologize for making these
proposals this late in the process, but were completely unaware of the proposed amendments until
it was printed in the Bulletin. We strongly urge the Board of Commissioners to simply vote no
on both of these proposed ordinances or in the alternative, support our two proposed
amendments.
Sincerely,
11�
Preside
Deschutes County Farm Bureau
VV.
E2SEW nBOARD
Mike Mer Pre at
Coss v ruletwiek,
Tripe C Red! M nina
Bill McCeII BecJTroastrrer
N�b'dw lia�c Products
Dave Palktt, Past President
Burch Concrete s Supply
nes
Terry Clarke
Pandlelon Ready Mix
John DelonD
Morse Bros., Inc.
west& 9a ry co crate
Ted Frdemen
Freeman Rock 1, cis
OREGON CONCRETE & AGGREGATE
PRODUCERS ASSOCIATION, Inc.
737 13" St. SE • Salem, OR 97301 • 503.588.2430 • Fax 503-5882577
November 6, 2001
Tom DeWolf
Board of County Commission
1130 NW Harriman
Bend, OR 97759
Dear Mr. DeWoI>y
Deschutes County is considering several changes to the aggregate
mineral rules to resolve several specific issues for the Squaw Creek
Irrigation District. As you are probably aware, the issues surrounding
Squaw Creek Irrigation District have been an ongoing concern to the
county and the aggregate industry.
BakarRockRRsources
Earlier this spring, representatives from the Squaw Creek Irrigation
District, the Department of Geology and Mineral Industries, Deschutes
RV:7ALraaven s, tru
County and myself visaed about allowing the irrigation district to
Kevin ftiohardeon
Laoroecbr�
apply for a conditional use permit to create and maintain irrigation
pl? Y P B
seoltflysn
canals and reservoirs. Evidently, county rules were forcing Squaw
Superior TireServlce
Creek Irrigation District into a goal 5 analysis to permit irrigation
Chuck 5teimandal
Ross Island Sand d Oravel
canal and reservoir work,
Bob VanBrocklln
Sfoel Rives LLP
B W(Won
Peel is Rock Products
Managing Director
Richard L. Angstrom, Jr.
503.588.8271
- richtpocapa,not
40008 s Mama ar
Linda Bye
503-588.2430
lindsOmpa.net
Program Coordinator
Jennifer Hanung
503.368.2844
onniter0ocape.mel
AdminislratIve Assistant
Alava Davenport
!303.868.2430
alaneampa,net
The county and aggregate industry's concern was, and is, that creation
of irrigation reservoirs and canals is essentially mining activity. The
material excavated is often sold on the market to help fund the districts
work. Unfortunately, such excavation results in substantial material
being produced and sold having a disruptive effect on the commercial
aggregate market. In essence, if an irrigation districts is commercially
mining aggregate it needs to play by the same rules or it Weill Caisse
injury to aggregate businesses. The difference is that commercial
aggregate businesses have to absorb a number of other regulatory costs
associated with commercially ruining that irrigations districts don't
have to absorb.
The new modifications to Title 18 and 23 allow for irrigation districts
to apply for a conditional use permits for non significant aggregate
resources. This appears to resolve Squaw Creek Irrigation District's
issue. I also believe it will help smaller commercial gravel operators
Uk HrH
who do not have a resource that meets the significance criteria to be permitted. These
changes seem necessary and appropriate.
However, our concern remains with the sale of the irrigation district's excavated material. If
an appropriate limitation is not placed on the material that can be sold two things will
happen. First, aggregate companies will attempt to use this irrigation reservoir exception as a
reclamation option to avoid your goal 5 process. Second, dumping of excavated material on
the market will hurt the county's legitimate small aggregate producer. Small operators have
stated this concern over and over based on prior experience with Squaw Creek Irrigation
District.
Finding a solution that balances the legitimate needs of the county to provide agricultural
irrigation reservoirs and protecting small aggregate producers is not an easy task. Irrigation
districts have a legitimate purpose to sell material to onset the costs of construction.
However, their motivation is not revenue based; their primary need is to iyzt
material to create the reservoir. The revenue from the sold material is essentially a
secondary benefit. However, this conflicts with other business interest whose primary
interest is the sale of rock.
Two possible solutions to this issue are: 1) Restrict the sale of material excavated from an
irrigation reservoir to 5,000 tons of material annually, 2) Require irrigation districts to put the
material up for competitive bid instead of selling it on the open market. The second option
essentially restricts quasi government irrigation districts from dumping material on the open
market, and allows for commercial sand and gravel operators as well as others to actively bid
for the material_ Market forces will dictate the value and price.
I hope this discussion is helpful. If you have any questions please call me at 503 $88 8271.
R1
dreard L. ,4;L—
Managing
Managing irector
P.03
liio7r01 NSD 10:17 FAX 611 98x8118
Robert L Friend
88307 George Cyrus Road
$18ters, OR 9"69
(541) M-2119
November 7, 2001
R L Friend Co
0aschutes County Board of Commissioners
1130 N.W. Harrimen
$and, OR 97759
Bear Sirs,
1 am unable to attend the hearing and appreciate the opportunity to command on the
proposed amendments to Title 18 and THIS 23 of the Deschutes County Zonlrp
Ordinance. I wish to void my support for the =rent amendments being proposed by
the planning dlvisdon to the County BoarO of Commissioners. I feet that they have
appropriately addressed all of the Inadequacies In the zoning ordinanoe and that the
changes will allow our district as well as others to adlectively manage our resources.
The only addition that I would Ike to propose is that the Board require that the meWal
be void at market value so as io not un<aW Compete with local provtdlers of the acme
material.
am a member of the Squaw Crook Irrigation District and also a newly sleazed Board
MembW to the Deschutes County Farm Bureau. I know that having this surface
mining restriction has hampered the Irrigatlon District in being able lo effectively
manage our pmited resource. The 010011 has been very aggressive about trying to
Implement conservation practices such as piping and 1 fool that those amendments will
Billow good conservation practices to mow forward,
Again, I appreciate the opportunity to Comment.
Sincerely, t `_
V�,�
Robert L Friend
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