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1995-20296-Ordinance No. 83-066 Recorded 12/22/198395-20296 ti 4 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Ordinance No. PL -11, Bend Urban Growth Boundary Zoning Ordinance, as Amended, by the Addition of* L E D the Deschutes River Combining Zone, Providing For a Study * DEC 2121983 Period, Providing For Repeal, and Declaring an Emergency. MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK ORDINANCE NO. 83-066 THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. Deschutes County Ordinance No. PL -11, Bend Urban Growth Boundary Zoning Ordinance, as amended, is amended by the addition of Section 23A, Deschutes River Combining Zone, as set out below: "Section 23A. Deschutes River Combining Zone. DR. In any Deschutes River Combining Zone the requirements and standards of this Section shall apply in addition to those specified in this Ordinance for the underlying zone. In the event of a conflict in requirements and standards of this Section with the requirements and standards for the underlying zone, the provisions of this Section shall take precedence. (1) Purpose. The purpose of the Deschutes River ComE'in ng Zone is to maintain the quality and quantity of the streamflows; to protect fish and wildlife; and protect the visual, environmental, and aesthetic attributes of the Deschutes River, its tributaries, diversion points, and adjacent areas within the area of the DR Zone. (2) Application of Section. This Section shall apply to land use actions in the area of the DR Zone defined as the areas of special interest or 100' from the mean high water mark, whichever is great- er on and along the Deschutes River and Tumalo Creek, as identified on the Deschutes River Combining Zone map, marked Exhibit "A", attached hereto and by this reference incorporated herein. KEY JU Ll)" wr cu 1 - ORDINANCE NO. 83-066 21995 VOL 51 - (3) Uses Permitted Conditionally. In a zone with which the DR Zone is combined, those uses not otherwise exempt from this Section shall be per- mitted conditionally. The requirements and stand- ards of this Section shall apply in addition to the general conditional use criteria set forth in Section 29, and the requirements and standards for the underlying zone. (4) Specific Use Requirements and Standards. The following requirements and standards apply to land uses within the DR Zone. (A) The use shall maintain existing stream flow of any affected river or stream at present quality and quantity. (B) The use shall conserve and protect fish and wildlife habitat. (C) The use shall maintain the scenic, visual, environmental and aesthetic qualities of the affected river or stream, and shall not diminish the economic benefits of tourism to the local economy. (D) The use shall not impair recreational oppor- tunities of the river or stream by the public. (E) The use shall have no significant negative impact, individually or cumulatively, on existing and viable potential uses of the river or stream. (F) Any application for a hydroelectric project shall affirmatively show that the use will further the purpose of this Section, and that the applicant has sufficiently addressed the issues to be resolved during the study period as set forth in this Section. (G) The use shall meet the State of Oregon Department of Environmental Quality noise standards. (H) That fill and removal activities meet State of Oregon requirements and provide for the reclamation of disturbed areas so that no significant short or long term negative impacts occur. 2 - ORDINANCE NO. 83-066 VOL 5 g�w 406 (I) That when the use is on or affects Federal or State land, that the use is in conformance with any integovernmental planning agreement between Deschutes County and affected Federal or State agencies. (J) That any special district involved in any manner with an application for a land use permit has complied with the requirements of ORS 197.185 and the proposed activity is in conformity with the special district's inter- governmental cooperative agreement with Deschutes County if the district does not otherwise have an acknowledged comprehensive land use plan. (5) Study Period. A study shall be conducted as set out below by a joint task force to be appointed by the Board of County Commissioners. (A) There is hereby declared a study period for all land use activities within the area within the DR Zone. (B) The study period shall be for the period February 1, 1984 to July 31, 1985. Following review and public hearing, and prior to the termination date, and if deemed necessary by the Board of County Commissioners, the date of termination of the study period may be extended by ordinance for a subsequent period of up to six months. (C) The study period shall include, but not be limited to, the following: 1. Detailed mapping and instream flow studies of the Deschutes River, its tributaries, its diversion points, and its adjacent areas, including areas of special interest, to allow precise review of the boundaries of the overlay zone. 2. The development of a river system model at standards not less stringent than those adopted by the Northwest Power Planning Council to complete the re- quirements of the studies identified in Section 1204, Northwest Power Planning Council "Columbia River Basin Fish and Wildlife Program" and Chapter 10, Sections 14.2 and 14.3, Northwest Power 3 - ORDINANCE NO. 83-066 `VOL 51 pm� 4 67 Planning Council, "Northwest Conserva- tion and Electric Power Plan". 3. Identification of uses and development that may be permitted utilizing the balancing tests set forth in Statewide Planning Goal 5, and establish detailed standards and criteria for development within the DR zone. 4. The study of the individual and cumu- lative effects of all known and poten- tial hydroelectric sites and sources on the Deschutes River, its tributaries, diversion points, adjacent areas, and stream flows. 5. The development of a program in recogni- tion of the cumulative effects to balance the conflicting uses of the natural resource and the hydroelectric projects as required by Statewide Planning Goal 5. 6. Identification of current and potential river uses, and the economic value of such uses. 7. Preparation of amendments to the Com- prehensive Plans and implementing ordinances to balance the conflicting uses on the Deschutes River, its tribu- taries, diversion points, adjacent areas, areas of special interest, and streamflows. (D) During the study period, the County shall participate with the Power Council in the completion of the Power Council's hydroelectric study and take affirmative action with respect to the apparent con- flict between the provisions of PURPA and the Northwest Power Act in order to help facilitate resolution of the conflict. (6) Exemptions. The following shall be exempt from this Section: (A) Continuation of a conforming or nonconforming use, or a conforming or nonconforming struc- ture, constructed prior to January 1, 1984. 4 - ORDINANCE NO. 83-066 � va 51 rub,'[ 4'�.f8 (B) A use or structure, including a conforming or nonconforming use, or a conforming or noncon- forming structure, for which a minor site plan for the construction, alteration, restoration, or replacement is necessary. (C) Construction or reconstruction of a single family residence. (D) The reconstruction or repair of an existing dam, provided such reconstruction or repair does not alter the characteristics of the water impoundment and does not otherwise affect existing stream flow. (E) Any use or accessory use permitted outright or conditionally in the underlying zone pursuant to a Destination Resort approval, Planned Unit Development approval, master plan approval, or site plan approval dated prior to January 1, 1984. Section 2. This Ordinance is repealed February 1, 1986, or upon the completion of the study provided for in Section 23A of Ordinance No. PL -11, Bend Urban Growth Boundary Zoning Ordinance, as amended, and the adoption of a recommended comprehensive plan and implementing ordinance amendments, whichever occurs first. Section 3. This Ordinance being necessary for the immediate preservation of public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this gI day of �� , 1983. ATTEST:&/�e& 6WAAP­�_ ecording Secretary 5 - ORDINANCE NO. 83-066 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON . Y LAb'RENU A. ,/rnair PRAUME„ Commissioner TTLE,\Commissioner LEGISLATIVE FINDINGS The following Legislative Findings are hereby made in support of adoption of Ordinance No. 83-066. 1. Statewide Planning Goal 5 requires the users of land within the State "[t]o conserve open space and protect natural and scenic resources", by developing "[p]rograms that will: (1) insure open space, (2) protect scenic and historic areas and natural resources for future generations, and (3) promote healthy and visually attractive environments in harmony with the natural landscape character . ." Statewide Planning Goal 5 further provides that, "[w]here conflicting uses have been identified the economic, social, environmental and energy consequences of the conflicting uses shall be determined and programs developed to achieve the goal." 2. The Bend Area General Plan (Plan), portions of which are set forth in Appendix "A", identify uses for the Deschutes River, its tributaries, diversions, adjacent areas, and stream flows, all of which are hereinafter referred to as the "Deschutes River", which are intended to implement Statewide Planning Goal 5. 3. Hydroelectric projects on or adjacent to the Deschutes River, or which divert water from the Deschutes River, conflict with the Plan and no program has been developed by Deschutes County to achieve Statewide Planning Goal 5. 4. The Plan provides that tourism and recreation are critically important components of the local economy. The economic elements of the Plans make it imperative that the Deschutes River be preserved as a resource to be utilized by tourists. 5. A number of Federal acts and actions have been promulgated which may impact the Deschutes River, such as the Northwest Conservation and Electric Power Plan (Power Plan) developed pursuant to the Pacific Northwest Electic Power Planning and Conservation Act (Northwest Power Act) as adopted by the Northwest Power Planning Council (Power Council), the Columbia River Basic Fish and Wildlife Program (Fish Plan) as adopted by the Power Council, the Public Utilities Regulatory Policy Act (PURPA), and the U. S. Forest Service Deschutes Forest Plan (Forest Plan). 6. A number of applications for hydroelectric generating facilities and diversions have been filed for in the Deschutes River Basin. 7. The Fish Plan and Power Plan adopted by the Power Council identify serious potential cumulative impacts from hydro - 1 - LEGISLATIVE FINDINGS VOL 51 pArUF 410 electric generating and diversion facilities which cannot be assessed by evaluating projects on a case by case basis. 8. The necessary studies, including environmental impact studies, to determine the cumulative impacts of the con- struction and operation of hydroelectric diversion, gener- ating, and transmission facilities on the economic, social, environmental and energy consequences of identified and potential conflicting uses of the Deschutes River which are a condition precedent to the implementation of programs to meet Statewide Planning Goal 5 have not yet been accomplished. 9. The Deschutes River, conserved as open space and protected as a natural and scenic resource, is a critically important component to the tourism and recreation industry in Deschutes County. 10. Hydroelectric generating and diversion facilities impact open space, natural and scenic resources, and recreational opportunities which are among the basic elements of a successful tourist industry. 11. The Federal Power Act (FPA) which created FERC specifically recognizes "state action". The Act provides that FERC's powers shall not be exercised as ". . . affecting . . . or in any way to interfere with the laws of the respective state relating to the control, appropriation, use, or distribution of water used . . . for municipal or other uses and Section 9(b) of the FPA requires compliance with local laws implementing state action before developing the use, diversion, or appropriation of water, water course bed, or watercourse bank. 12. The Power Plan states that the Power Council will conduct, during the next two years, a stream -by -stream analysis to rank hydroelectric sites according to their impacts on fish and wildlife. 13. The Oregon Economic Department has determined that in 1982 out-of-state tourism spent $100,000,000 in Deschutes County. 14. The Department of Fish and Wildlife has estimated fishing and hunting generate up to $10,000,000.00 to the Deschutes County economy annually. 15. The condition of the Deschutes River may be irreparably damaged as a tourist attraction, a recreational resource, a fish and wildlife habitat, a scenic waterway, and a gener- ally clean and safe natural resource by the unstudied placement of any of the proposed hydroelectric generating facilities or other major new facilities in and around the City of Bend. 2 - LEGISLATIVE FINDINGS . Vit 5 411 16. The State Attorney General has recognized local jurisdic- tion's land use role in the use and development of water resources such as found in the Deschutes River Basin, and the authority of the local jurisdiction to adopt ordinances regulating the land use aspect of such resources. 17. That exemptions from the standards and criteria in the Ordinance are based upon the recognition of prior approvals and uses which at most represent minor impacts and are in conformance with the Plan and implementing ordinances, or may be continued pursuant to existing State law. DATED this JL��day of , 1983. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES.COUNTYa OREGON ATTEST: Recording Secretary 3 - LEGISLATIVE FINDINGS Gam'- � �����1'� • .��J1 PRANTE, Commissioner URENCnA. TOOTLE, Tommissioner APPENDIX -A VOL 51 wGrE 412 Bend Area General Plan Pertinent Deschutes River Goals and Policies Open Lands - The open land section of the plan deals with three basic types, forests, urban area reserve, and areas of special interest - private and public open space. Areas of Special Interest - Private and Public Open Space 1. The banks and canyon of the Deschutes River shall be retained as public or private open space throughout its entire length within the planning area except in the intensively developed central part of the community. 2. Major rock outcrops, stands of trees or other prominent natural features shall be preserved as a means of retaining the visual character and quality of the community. Outside the Urban Growth Boundary the policies and requirements of the Deschutes County Year 2000 Comprehensive Plan shall apply. Decisions along the boundary that may impact natural resource lands outside the boundary will be coordinated with the County, and preference will be given to the protection of such adjacent resources through the development review process: Areas of special interest identify lands along the banks of the Deschutes River. These areas are also basic habitat. The following policies and goals shall also apply. Fish and Game The primary goals for the protection of the fish and wildlife habitat within the urban area are: 1. To conserve the existing riparian zone along the Deschutes River. 2. To provide for public access to this scenic and attractive resource. 3• To provide more park and trails along the river. 4. To allow the community flexibility in reviewing development proposals within the areas of special interest that would award superior design; that gran, public access and dedication of land to the public; that grant scenic or develop- ment easements to a public body or recognized conservation organization; and still maintains the scenic resources and protects or enhances the wildlife habi- tat or that can be judged to be a reasonable trade-off in values for the public. Strategies and Policies: 1. The city and county shall preserve areas of the banks and canyons of the '.'es - chutes River in p1D11c or private open space throw iiout Lts entl_'e�-^- the Ur :_n urowzh 7-oundary, except in the intensively deve.lope'! .ventral _ _-' of the city. Areas so preserved will allow iesidontial densities to be hiar ill the deveiopable portion of the parcel affected. 2. The city and county shall review development proposals that include land in areas designated as areas of special interest for the public benefits that can be gained under preservation or development. The city and county may alio:: those developments that are not subject to natural hazards; that would not inflict irreversible harm to the riparian zone; that would enhance public oAen apace, parks, and access; that have excellence of desi5.1, provide via easement or fee title access for the public to the river, either as parr Cr trails; and carry out the intent of the plan to enhance the variety and iva- bility of the Bend Urban Area. .r n Appendix B Page 2 U_ 3 VOL 51 3. Any development within 100 feet of the water's edge shall be subject to a con- ditional use and design review procedure, taking into account the goals for the areas of special interest and the protection of fish and wildlife habitat. 4. The county and city shall apply the requirements of the deer winter range over- lay zone to any development in the urban reserve area adjacent to or within one mile of the 14A designation on the county plan or zoning maps. The Deschutes River represents a significant sensitive area within the Urban Growth Boundary, and the upmost care shall be taken in any development that occurs so that the public is benefitted by any changes that may occur in the existing charac- ter of the river or riparian zone. A