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HomeMy WebLinkAbout4-R Equipment LUBA Remand AppealDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.o AGENDA REQUEST & STAFF REPORT For Board Business Meeting of July 23, 2008 Please see directions for completing this document on the next page. DATE: July 9, 2008 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Board discussion (and possible oral decision) of applications for a plan amendment and zone change from Exclusive Farm Use to Surface Mining for property in Millican. The applicant is 4-R Equipment. PUBLIC HEARING ON THIS DATE? No, the hearing has already been held. BACKGROUND AND POLICY IMPLICATIONS: The plan amendment and zone change applications were previously approved by the Board. The Board's decision was appealed to LUBA by Tammera and Clay Walker. LUBA remanded the County's decision for further proceedings. The Board held a new hearing on the remanded issues. A new written decision by the Board is necessary, and must be completed very quickly to meet the mandated remand timeline. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: The Board will need to decide whether the issues raised on appeal to LLTBA and remanded to the County by LUBA have been adequately addressed. ATTENDANCE: Paul Blikstad, CDD, and Laurie Craghead, County Legal Counsel DISTRIBUTION OF DOCUMENTS: Planning staff will take care of the required mailing of the Board's new decision. Community Development Department Planning Division Building Safety Division Environmental Health Division 14. 117 NW Lafayette Avenue Bend Oregon 9770:1-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: April 18, 2008 TO: Board of County Commissioners FROM: Paul Blikstad, Senior Planner RE: Remand hearing from LUBA appeal — 4-R Equipment BACKGROUND 4-R Equipment (Ron Robinson) filed applications for a plan amendment to add the subject property to the County's Goal 5 surface ruining inventory of mineral and aggregate resources, and a zone change to rezone the property from Exclusive Farm Use — Horse Ridge subzone (EFU-HR) to Surface Mining (SM). These applications were intially heard by the County Hearings Officer, who recommended denial of the applications based on the applicant not identifying measures to avoid or minimize conflicts with nearby uses. Because these applications involved lands designated for farm use, the County Code required that the Board hold a de novo hearing without the necessity of filing an appeal, regardless of the Hearings Officer's determination. The Board held an initial hearing on August 23, 2005. The Board, on November 2, 2005, ordered that the record remain open until November 30, 2005 in order for the applicant to submit an ESEE (Environmental, Social, Economic and Energy) analysis for a one-half mile impact area. The Board reopened the record and staff sent notice of a subsequent hearing held on December 14, 2005 for public comment on the ESEE analysis. The Board announced its decision on March 1, 2006. The applicant's counsel was instructed tc write the decision (with staff review). Due to the applicant's counsel's schedule (including a 2 - month sabbatical), the Board written decision was not mailed out until December 27, 2006. The Board's decision was appealed to LUBA by the opponents, Clay and Tammera Walker LUBA's final opinion and order was issued October 3, 2007, which remanded the County's decision. Consequently, the County is required to hold a new hearing, and issue a new written decision within a very short timeframe (90 days from the date the applicant requests in writing). The applicant submitted the request for the County to start the remand process by letter dated April 17, 2008. Ninety (90) days from this date is July 16, 2008. I will be scheduling a hearing before the Board at the earliest possible date in order to meet th<: 90 -day period required by State law. LUBA'S ORDER 4-R Equipment — Staff memo Page 1 Quality Services Performed with Pride LUBA's order listed the opponents (petitioner's) assignments of error. Staff lists the assignments of error in the order of LUBA's opinion and decision. 1. The proposed one-half mile Surface Mining Impact Area (SMIA) combining zone around the surface mining boundary does not require those property owners within the SMIA zone's consent to the zone change (pages 3-4 of LUBA's order). This assignment of error was denied. 2. Impacts to: Pine Mountain Observatory - LUBA found the County's findings that a reasonable person could conclude based on the whole record that dust from the mining operation would not be a significant potential conflict with the observatory (pages 5-7 of LUBA's order). This subassignment of error was denied. Sage Grouse - LUBA found that the County's findings were inadequate to determine that the mining activity would not interfere with the sage grouse flight patterns and ultimately the sage grouse leks. There is an identified and protected sage grouse lek within 1.25 miles of the mining site (pages 7-9 of LUBA's order). This subassignment of error was sustained. Evans Well Ranch - LUBA found that the County's findings were inadequate to determine that the mining operation would not interefere with cattle grazing operations at the ranch, by potentially affecting where the cattle could graze (pages 9-10 of LUBA's order). This subassignment of error was sustained. Residential Uses - LUBA found that the "other residences" referenced in the Hearings Officer's decision were not identifed by the petitioner and the County did not error in excluding these unidentified residences from the impact area (page 10 of LUBA's order). This subassignment of error was denied. 3. Quality of life and aesthetic concerns, specifically to the Walker residence. LUBA found that "quality of life" or "aesthetic concerns" that are not caused by noise, dust or other discharges from a mining operation need not be considered (pagesll-13 of LUBA's order). This assignment of error was denied. 4. Impacts to: Spencer Wells Road - LUBA found that the County did not error in failing to identify Spencer Wells Road as a potential conflicting use (pages 13-14 of LUBA's order). This subassignment of error was denied. Wildlife Habitat - LUBA found that the applicant's biologist's report concluded that there may or may not be pygmy rabbit burrows on the site and that the "dusting" site found was for the non -sensitive kangaroo rat (page 14-15 of LUBA's order). This subassignement of error was denied. Native American Archeological and Cultural Sites - LUBA found that while there may be undiscovered archeological sites within the portion of Dry Canyon on the applicant''; property, the petitioners did not identify any administrative rule or other applicable land use regulation that required the applicant to survey (archeological) that portion of the 4-R Equipment — Staff memo Page 2 canyon within the 600 -foot buffer area (pagesl5-16 of LUBA's order). This subassignment of error was denied. 5. Impacts to the archeological sites on the Walker property caused by fire emanating from the proposed mining site, or diesel exhaust from trucks using the site. LUBA found that there was no evidence to suggest that the mining activities would be likely to increase the risk of wildfires in the area or the risk to the pictogram site, or that diesel exhaust would create greater impacts that the existing traffic on Highway 20 (pages 16-17 of LUBA's order). This assignment of error was denied. 6. Impacts to: Pictograms — LUBA found that the county determined that vibration impacts to the pictograms was sufficently addressed by the County. The Native American use of the area to conduct religious and cultural ceremonies is an "existing use" under OAR 660- 023-0180(5)(b)(A), and the County must evaluate whether such visits are existing uses, and if so, evaluate alleged conflicts with those uses (pages 18-19 of LUBA's order). This subassignment of error (for religious and cultural ceremonies) was sustained. Coyote Well — LUBA found that the County did not address vibration impacts to this well (pages 19-20 of LUBA's order). This subassignment of error was sustained. Highway 20 — LUBA found that dust was sufficiently addressed and that the petitioners did not cite to anything in the record that flying rocks and debris would endanger motorists on the highway (pages 20-21 of LUBA's order). This subassignment of error was denied. Best Shelter — LUBA found that there was no findings with respect to the impacts to the shelter (page 21 of LUBA's order). This subassignment of error was sustained. 7 Petitioners apparently repeated the arguments of other discharges such as fire, diesel exhaust and flying rocks. LUBA rejected those arguments again (page 21 of LUBA's order). This assignment of error was denied. 8. Impacts to agricultural uses and addressing ORS 215.296. LUBA found that the County's decision only mentioned that the mining operation would not impact "significant" agricultural uses, and did not address ORS 215.296 at all (pages2l-23 of LUBA's order). This assignment of error was sustained. 9. The proposed mining site would draw water from nearby shallow perched aquifers. LUBA found that the County did not address this issue and conduct any necessary evaluations under OAR 660-023-0180(5) (pages 23-24 of LUBA's order). This assignment of error was sustained. 10. Impacts to the antelope winter range from the mining site. LUBA found that the applicant's wildlife biologist study, in conjunction with ODFW's review of the mitigatior measures proposed, was sufficient to determine that the resource was protected (page: 24-26 of LUBA's order). This assignment of error was denied. 11. Petitioners contend that the County's ESEE analysis was inadequate. LUBA's orde • states: "Depending on the conclusions reached in those amended or additional findings, 4-R Equipment — Staff memo Page 3 the county may be required to adopt amended or additional findings under its ESEE analysis for purposes of OAR 660-023-0180(50(d)." LUBA stated they could not "reach" the eleventh assignment of error. Based on the above findings, staff believes that the applicant will need to address the following before the Board: • Flight patterns of the sage grouse and how the mining operation may or may not affect them. • Agricultural activities surrounding the surface mining site, specifically the impacts to the Evans Well Ranch cattle operation. • Native American religious and cultural activities, whether these constitute "existing uses" and if so, an evaluation alleged conflicts with those uses. • Vibrations and possible impact to the Coyote Well. • Information on the Best Shelter and what impacts might occur to it. • Agricultural uses and addressing ORS 215.296. • Mining impacts on perched aquifer ground water sources. Staff believes that the ESEE anlaysis will need to be amended to incorporate findings on all of the above impacts. Staff has not yet read the applicant's April 17th submittal, but will review it and comment at the hearing. I am submitting for your review copies of the following: • The Board's written decision on PA -04-8, ZC-04-6 • Staff memo to the Board dated July 20, 2005 • LUBA final opinion and order dated October 3, 2007 • Applicant's letter dated 4-17-08 requesting the County start the remand process and attached exhibits 1-6 Please contact me at your convenience if you have any questions. 4-R Equipment — Staff memo Page 4 REVIEWED LEGAL COUNSEL For Recording Stamp Only DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBERS: PA -04-8, ZC-04-6 APPLICANT/OWNER: 4-R Equipment, LLC PO Box 5006 Bend, OR 97708 AGENT: REQU EST: STAFF CONTACT: Robert S. Lovlien Bryant Lovlien & Jarvis, P.C. P.O. Box 1151 Bend, OR 97709 A plan amendment and zone change for 365 acres from Exclusive Farm Use (EFU-HR) to Surface Mining (SM). Paul Blikstad, Associate Planner I. APPLICABLE CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance B. Title 22 of the DCC, the Development Procedures Ordinance C. Title 23 of the DCC, the Deschutes County Comprehensive Plan D. OAR 660 Division 23, Procedures and Requirements for Complying with Goal 5 E. OAR 660-012-0060, Plan and Land Use Regulation Amendments F. OAR 660-015, Statewide Planning Goals II. FINDINGS OF FACT: The Board adopts the Hearings Officer's Findings of Fact and adds the following. H. PROCEDURAL HISTORY: The Planning Division mailed notice of the public hearing scheduled for January 18, 2005 to property owners within 750 feet of the subject property and published a notice of the proposal in the Bend Bulletin. Hearings were held before the Deschutes County Hearings Officer on January 18, 2005 and on April 20, 2005. On June 1, 2005, the Hearings Officer issued her recommendation. The County Board of Commissioners held a public hearing on August 23, 2005 to consider this request. On November 2, 2005, the Board of Commissioners ordered that the record remain open until November 30, 2005 in 1 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc DG_2006-609 order to provide an ESEE Analysis for a one-half mile impact area. The Board reopened the record and sent notice of a subsequent public hearing held on December 14, 2005 for public comment on the ESEE Analysis. The hearing was continued from December 14, 2005 to January 25, 2006. The Board announced its decision on March 1, 2006. On June 15, 2006, applicant's legal counsel, Mr. Robert Lovlien, submitted a letter waiving the 180 -day period without specifying a time period. On September 8, 2006, the County received written notice from Mr. Lovlien, saying that Mr. Lovlien would be leaving for a two month sabbatical and requesting that the mailing of the Board's written decision be delayed until after Mr. Lovlien returned on November 27, 2006. III. CONCLUSIONARY FINDINGS: A. OREGON ADMINISTRATIVE RULES 1. OAR 660-023-0180, Mineral and Aggregate Resources. (1) For purposes of this rule, the following definitions apply: (a) "Aggregate resources" are naturally occurring concentrations of stone, rock, sand, gravel, decomposed granite, limestone, pumice, cinders, and other naturally occurring solid materials commonly used in road building or other construction. (f0 "Mineral resources" are those materials and substances described in ORS 517.750(7) but excluding materials and substances described as "aggregate resources" under subsection (a) of this section. (2) Local governments are not required to amend acknowledged inventories or plans with regard to mineral and aggregate resources except in response to an application for a post acknowledgement plan amendment (PAPA) or at periodic review as specified in OAR 660-023-0180(8). The requirements of this rule modify, supplement, or supercede the requirements of the standard Goal 5 process in OAR 660-023-0030 through 660-023-0050, as follows: (a) A local government may inventory mineral and aggregate resources throughout its jurisdiction, or in a portion of its jurisdiction. When a local government conducts an inventory of mineral and aggregate sites in all or a portion of its jurisdiction, it shall follow the requirements of OAR 660- 023-0030 except as modified by subsection (b) of this section with respect to aggregate sites. When a local government is following the inventory process for a mineral or aggregate resource site under a PAPA, it shall follow the applicable requirements of OAR 660-023-0030, except where those requirements are expanded or superceded for aggregate resources as provided in subsections (b) through (d) of this section and sections (3) (4) and (8) of this rule; 2 - Final Decision 4R EQUIPMENT PA-ZC DECISION.doc (b) Local governments shall apply the criteria in section (3)or (4) of this rule, whichever is applicable, rather than OAR 660-023-0030(4) in determining whether an aggregate resource is significant; (c) Local governments shall follow the requirements of section (5) or (6) of this rule, whichever is applicable, in deciding whether to authorize the mining of a significant aggregate resource site, and OAR 660-023-0040 through 660-023-0050 in deciding whether to authorize mining of a significant mineral resource; and (d) For significant mineral and aggregate sites where mining is allowed, except for aggregate sites that have been determined to be significant under section (4) of this rule, local governments shall decide on a program to protect the site from new off-site conflicting uses by following the standard ESEE process In OAR 660-023-0040 and 660-023-0050 with regard to such uses FINDING: The Board adopts the Hearings Officers' findings for the above State administrative rule provisions and adds the following: Based on the burden of proof statement and the associated geotechnical report, the plan amendment and zone change applications submitted are for an aggreqate resource rather than a mineral resource, as defined in OAR 660-023-0180(1) above. The proposed resource, according to the applicant's submittal, is a naturally occurring concentration of rock, sand and gravel, commonly used in road building or other construction. Consequently, the proposed applications will be reviewed for significance under OAR 660-023-0180(4) rather than OAR 660-023-0030(4) as required under "b" above. Additionally, the proposed application will be reviewed in deciding whether to authorize mining under OAR 660-023-0180(6) rather than OAR 660-023-0040 through 660-023-0050 as required under "c" above. (3) An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality and location of the resource demonstrates that the site meets any one of the criteria in sections (a) through (c) of this section, except as provided in subsection (d) of this section; (a) A representative set of samples of aggregate material in the deposit on the site meets Oregon Department of Transportation (000T) specifications for base rock for air degradation, abrasion, and soundness, and the estimated amount of material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the Willamette Valley; FINDING: The Board adopts the Hearings Officer's findings for these critieria and adds that the Siemens report also addresses the potential for sale of lightweight fill. The report states that: "laboratory testing indicates that the entire body of basalt rock (over 17 million cubic yards) easily exceeds ODOT standards for highway construction aggregate." Thus, the estimated 17 million cubic yards, which converts to approximately 44,200,000 tons, is well beyond the minimum 500,000 -ton threshold listed above. (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or 3 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc (c) The aggregate site is on an inventory of significant aggregate sites in an acknowledged plan on the applicable date of this rule. FINDING: The Board adopts the Hearings Officer's findings for these criteria. (d) Notwithstanding subsections (a) an (b) of this section, except for an expansion area of an existing site if the operator of the existing site on March 1, 1996 had an enforceable property interest In the expansion area on that date, an aggregate site is not significant if the criteria in either paragraphs (A) or (B) of this subsection apply: (A) More than 35 percent of the proposed mining area consists of soil classed as Class 1 on Natural Resource and Conservation Service (NRCS) maps on the date of this rule; or (B) More than 35 percent of the proposed mining area consists of soil classified as Class ll, or of a combination of Class 11 and Class 1 or Unique soil on NRCS maps available on the date of this rule, ... FINDING: The Board adopts the Hearings Officer's findings for these criteria and adds that the applicant did not have an existing mining site nor did the applicant have an enforceable property interest in the expansion area on March 1, 1996. Therefore, the Board agrees that subsection (d) is not applicable. (4) Notwithstanding section (3) of this rule, a local government may also determine that an aggregate resource site on farmland is significant if subsections (a) and (b) of this section apply or if subsection (c) of this section applies: (a) The quantity of material proposed to be mined from the site is estimated to be 2,000,000 tons of aggregate material or less for a site in the Willamette Valley, or 500,000 tons or less for a site outside the Willamette Valley; and (b) Not more than 35 percent of the proposed mining area consists of soil (A) Classified as Class 1 on Natural Resource and Conservation Service (NRCS) maps available on June 11, 2004; or (Bl Classified as Class 2, or a combination of Class 11 and Class 1 or Unique soli, on NRCS maps on June 11, 2004, unless the average thickness of the aggregate layer within the mining area exceeds the amounts specified in paragraph (B) of subsection (3)(d) of this rule; or (c) A local land use permit that allows mining on the site was issued prior to April 3, 2003, and the permit is in effect at the time of the significance determination. FINDING:. The Board adopts the Hearings Officer's findings on these criteria except that the Board adds the following. While the proposal meets the criterion in subsection (4)(b), because it does not meet the other leg of the requirement, subsection (a), the proposal does not meet the first set of 4 - Final Decision 4R EQUIPMENT PA-ZC DECISION.doc criterion for Section (4) to apply. Additionally, because the property is not subject to any pre -April 3, 2003 land use approval for mining, the Board agrees that subsection (4)(c) also does not apply. Therefore, Section (4) in its entirety is not applicable to this proposal. (5) For significant mineral and aggregate sites, local governments shall decide whether mining is permitted. For a PAPA application involving an aggregate site determined to be significant under section (3) of this rule, the process for this decision is set out in subsections (a) through (g) of this section. A local government must complete the process within 180 days after receipt of a complete application that is consistent with section (8) or by the earliest date after 180 days allowed by local charter. FINDING: Because the Board found compliance with OAR 660-023-0180(3) above and that this is a significant aggregate site, this section (5) is applicable to this proposal. As for the 180 -day deadline, as stated above, the applicant tolled that deadline. (a) The local government shall determine an impact area for the purpose of identifying conflicts with proposed mining and processing activities. The impact area shall be large enough to include uses listed in subsection (b) of this section and shall be limited to 1,500 feet from the boundaries of the mining area, except where factual information indicates significant potential conflicts beyond this distance. For a proposed expansion of an existing aggregate site, the Impact area shall be measured from the perimeter of the proposed expansion area rather than the boundaries of the existing aggregate site and shall not include the existing aggregate site. FINDING: The Staff recommended that, for purposes of this criterion, the impact area coincide with the surface mining impact area (SMIA.) combining zone, Deschutes County Code ("DCC") 18.56.020 . Once a surface mining site is designated, DCC 18.56.020 requires surface mining impact area ("SMIA") combining zone to extend to one-half mile from the boundary of the property. The Hearings Officer, however, recommended a SMIA extending as far as the Pine Mountain Observatory, located six miles away. The Board understands that the impact area required by the OAR is for determining what effect the mining site will have on surrounding uses and that the SMIA is to prevent surrounding uses from having an effect on the mining site. Therefore, the two impact areas have the opposite purpose, The Board finds, however, that the factual information provided by the applicant and other parties demonstrates that the half -mile distance encompasses all the reasonable impacts that the mining site will have. The Board bases this finding on some of the information in the Hearings Officer's decision and on the applicant's Environmental, Social, Economic and Energy ("ESEE") analysis. The Board's findings are as follows. There have been some potential conflicts identified beyond the half -mile distance. A review and analysis of these potential conflicts is as follows: A. Pine Mountain Observatory. The Pine Mountain Observatory is approximately 6.5 miles east of the subject property located on top of Pine Mountain. A potential conflict that was identified was dust emanating from the proposed mining operations. The issue is whether this would be a "significant" potential conflict justifying an expansion of the impact area. The Observatory is a substantial distance from the subject property. There are a number of other activities occurring within the Millican Valley and surrounding Paulina Mountains that currently generate dust. These would include the off-road vehicle trails near Millican, the unpaved dirt roads throughout the Millican Valley, 5 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc as well as in the Pauling Mountains, which are heavily used for recreational and hunting purposes, and dust which naturally occurs in Central Oregon. Dust is most likely to occur during crushing operations on the site. However, there was testimony that the Applicant operates similar crushing sites at its Century Drive pit in Bend, Oregon, which is only 300 yards from the entrance to the Broken Top, which is an upscale, golf, planned unit development. There have been no complaints regarding dust from Applicant's crushing operations. Applicant has also operated a crusher within the city limits of the City of Redmond at the Fireman's Pond. There have been no complaints from the operation of that surface mine. Applicant also operates a mining operation east of Alfalfa on George Millican Road. There have been no complaints of dust emanating from this site. Applicant also operates a crusher at its O'Neil Junction pit outside of Prineville. No complaints with regard to dust have been received. Based upon the distance from the subject property to the Pine Mountain Observatory, the activities that currently existing within the Millican Valley, and evidence of Applicant's other crushing operations in Central Oregon, dust would not be a significant potential conflict for the Pine Mountain Observatory. Therefore, the Board finds that the Pine Mountain Observatory is too far to be considered within the mining site's impact area. B. Sage Grouse Nesting Site (Lek). The proposed surface mining operation is within 1.25 miles of a sensitive bird and mammal site. This is a sage grouse site (lek), listed as Site No. DE 0999-01 on the County's Wildlife Inventory, located in Section 26 of Township 19 South, Range 14 EWM. However, the mining site is located outside of the sensitive bird and mammal (SBM) combining zone, and does not require SBM review under Chapter 18.90 of Title 18. Since the mining site is outside of the SBM combining zone and the sage grouse site is protected by the SBM combining zone, this site does not represent a significant potential conflict requiring the expansion of the impact area. C. Evans Wells Ranch. The potential conflicts would include noise, dust, traffic, vibrations, water draw down, visual impacts and quality of life. This site is located over four miles south of the subject property. There will be no traffic generated by the mining site that will go past this Ranch. There is no evidence that the Ranch will be impacted by noise. There is evidence that the proposed mining activities will not affect the valley water supply. See Exhibit "A" D. ORV Trails. There is a significant network of off road vehicle trails near Millican east of this project. These trails, in and of themselves, create a significant amount of dust, noise and additional traffic in the Millican Valley. Most of these trails lie at least three miles east of the project. There is no evidence that any significant amount of dust will be generated by the mining activities that could in any way effect the use of these ORV trails. There are no ORV trails within one-half mile of the subject property. Based upon the activity itself and the distance from the subject property, the ORV trails do not represent a significant potential conflict which would justify expansion of the impact area. E. Agricultural Practices. The nearest commercial agricultural activity, except for very limited range grazing, is the Evans Wells Ranch. These limited agricultural practices do occur within one-half mile of the site and will be discussed below. F. Millican Townsite. Millican is an unincorporated site approximately three miles east of the project. A convenience has operated at this site over the years. There was no testimony from the owner of the Millican store or the property comprised of the unincorporated community of Millican. Based upon the fact that there was no testimony from the owners or lessees of this site, there is nothing to indicate that this creates a significant potential conflict which would justify the expansion of the impact area. After reviewing all the above uses that are further than a half -mile from the property line, the Board 6 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc finds that the impact on quality of life of residences and visitors to the Millican Valley and aesthetic concerns may not be considered because OAR 660-023-0180(5) limits the type of conflicts that may be considered to those listed in that section. Morse Bras., inc. vs. Columbia County, 37 Or. LUBA 85 (1999) affirmed. 165 Or. App. 512 (2000). Based upon the location and distance from the site, the Evans Wells Ranch does not indicate that a significant potential conflict exists that would justify expanding the impact area. Therefore, after the identification of possible and potential conflicts that exist beyond the SMIA boundaries, the Board finds there is no factual information that indicates that these represent "significant potential conflicts" that would justify an expansion of the impact area, otherwise identified with the SMIA combining zone. As discussed below, however, there are significant impacts to uses within that half -mile distance. (b) The local government shall determine existing or approved land uses within the impact area that will be adversely affected by proposed mining operations and shall specify the predicted conflicts. For purposes of this section, "approved land uses" are dwellings allowed by a residential zone on existing platted lots and other uses for which conditional or final approvals have been granted by the local government. For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: (A) Conflicts due to noise, dust, or other discharges with regard to those existing and approved uses and associated activities (e.g., houses and schools) that are sensitive to such discharges; (B) Potential conflicts to local roads used for access and egress to the mining site within one mile of the entrance to the mining site unless a greater distance is necessary in order to include the Intersection with the nearest arterial identified in the local transportation plan. Conflicts shall be determined based on clear and objective standards regarding sight distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation plan and implementing ordinances. Such standards for trucks associated with the mining operation shall be equivalent to standards for other trucks of equivalent size, weight, and capacity that haul other materials; (C) Safety conflicts with existing public airports due to bird attractants, i.e., open water impoundments. This paragraph shall not apply after the effective date of commission rules adopted pursuant to Chapter 285, Oregon Laws 1995; (D) Conflicts with other Goal 5 resource sites within the impact area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; (E) Conflicts with agricultural practices; and 7 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc (F) Other conflicts for which consideration is necessary in order to carry out ordinances that supersede Oregon Department of Geology and Mineral Industries (DOGAMI) regulations pursuant to ORS 517.780. FINDINGS: This rule requires a determination of existing or approved land uses within the impact area, as described above, that will be adversely effected by the proposed mining operations and to specify the predicted conflicts. "Approved land uses" are defined as dwellings allowed by residential zone on existing platted Tots and other uses for which conditional or final approvals have been granted by the local government. Furthermore, for the determination of conflicts, the local government is limited to consider only those identified in (A) through (F) of this rule. The conflicts that have been identified within the impact area, the predicted conflicts, if any, and whether these conflicts should be considered under this rule are as follows: 1. The Walker Residence. The Walker residence is located 2,300 feet from the subject property. The potential conflicts include dust, noise, vibrations, traffic, water draw down and quality of life. The Walker residence would be considered a "approved land use" based upon the issuance of a building permit by Deschutes County. 2. Coyote Well Premises (historic site). The Coyote Well is approximately 1,350 feet from the subject property. The potential conflicts include vibrations and water draw down. 3. Pictographs. Pictographs have been identified on the Walker property and they are located approximately 1,950 feet from the subject property. The potential conflicts would be vibrations and dust. 4. Best Shelter. The Best Shelter has been identified as being approximately 1,775 feet from the property. The potential conflicts would be dust, noise, traffic and vibrations. 5. U.S. Highway 20. U.S. Highway 20 does bisect the property. Potential conflicts include dust and additional traffic. 6. Wildlife Area Combining Zone (antelope). The subject property is within the wildlife area combining zone (antelope). Potential conflicts include the disturbance of the antelope in the area. 7. Agricultural Activities. Within the impact area, the only agricultural practices are dry land grazing. The following is an analysis of the conflicts with the above uses to be considered pursuant to OAR 660-023-0180(5)(b). A. Conflicts Due to Noise, Dust or Other Discharges. The Walker residence is the only "approved land use" within the impact area (not including Highway 20, which will be discussed below). There is the potential for conflict due to dust and noise. There is unrefuted evidence that the decibel levels at the Walker residence will not exceed the ambient noise level when the crusher is operating. See Exhibit `D". U.S. Highway 20 already generates significant traffic noise. This noise will only be marginally increased by the additional truck traffic on U.S. Highway 20. There is no evidence that the Walker residence will be affected by any vibration. A study was done to determine potential vibration intensities at the proposed site by Apollo Geophysics 8 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc Corporation. See Exhibit "C" The study collected data from test blasts done on site. They compared these findings with the standard adopted in Europe, which is published maximum recommended vibration intensity values for critical structures (historic cathedrals with national treasures) near blasting operations. The report concluded that the proposed blasting should be well below the European standard for vibration intensities and that the mine should be able to operate well below any potential damaging vibration intensities with the proposed 100 pounds (or below) per delay for the production blasting operations proposed by the Applicant. See Exhibit "C" Arguably, vibrations are not "other discharges" as identified under the rule. B. Traffic Impacts. A trip generation letter and intersection analysis for the proposed site was prepared by Ferguson & Associates dated June 21, 2004 and updated January 11, 2005. The report concluded as follows: "The proposed aggregate quarry was forecast to generate between 100 and 150 daily trips and little or no p.m./peak hour traffic. A majority (90%) of the trips generated by the project were distributed west on Highway 20 towards Bend, resulting in a forecast of 68 trips per day in each direction on Highway 20 to the west of the study intersection. The intersection of Highway 20 and Spencer Wells Road operates at an acceptable level of service and volume capacity ratios for the Year 2004. With the proposed project, ODOT mobility standards are met. No operational issues were identified. Guidelines were not met for a left turn onto Highway 20 from Spencer Wells Road." See Exhibit "E". There were also comments from the Oregon Department of Transportation and the County Road Department stating that they believe the traffic impacts on these two roads from the proposed mining operation would be minimal. The topography in this area is generally level and the site distances do not create a problem for the mining operation. There was testimony from opponents expressing concerns regarding traffic safety, including interference with safe boarding of school buses where on road shoulders where trucks move to the far right of roads to let faster vehicles pass; impaired visibility because of dust; and conflicts with bicyclists on the road. However, the testimony did not identify whether these impacts, if they occur, violate ordinances or regulations pertaining to "site distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation plan" such that they may be evaluated pursuant to OAR 660-023-0180(5)(b)(B). Without some connection between the testimony and applicable road development standards, these concems may not be considered. C. Bird Attractants' Conflict with Existing Airports. There are no nearby existing airports. Therefore, no conflict exists relating to this consideration. D. Goal 5 Resources. Testimony was presented during the hearing that identified the location of Coyote Well and Native American pictographs, as well as the possible location of burrowing owl and pygmy rabbit dens. However, neither of these sites or species have been included on the County's Goal 5 Inventory, and no program has been adopted to protect them. Therefore, they may not be considered under OAR 660-023-0180(5)(D). The property is within a wildlife area combining zone. This area is identified on the County's Comprehensive Plan Map as antelope range. Plans to minimize this Goal 5 resource are discussed below. E. Agricultural Activities. Staff reviewed in detail the potential conflicts that occur for uses 9 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc allowed in the EFUIHR Zone in the Staff Report dated January 6, 2005. The Board concurs with the Staff findings on these potential conflicts and; thus, excerpts from that Staff Report are incorporated herein by reference. See Exhibit "G". Within the impact area itself, the only agricultural uses have been very limited dry land grazing and would not be considered significant. There was concern expressed about water. The Applicant has applied for a water right permit for a well to be located on the property. There is no evidence that this groundwater right will in any way impact the regional aquifer. It will not have any effect on small aquifers like the one feeding the Coyote Well. See Letter from Oregon Water Resource Dept. of 07/22/05 and E-mail from Marshall Gannit of 08/02/05, Exhibit "A". (c) The local government shall determine reasonable and practicable measures that would minimize the conflicts identified under subsection (b) of this section. To determine whether proposed measures would minimize conflicts to agricultural practices, the requirements of ORS 215.296 shall be followed rather than the requirements of this section. If reasonable and practicable measures are identified to minimize all identified conflicts, mining shall be allowed at the site and subsection (c) of this section is not applicable. If identified conflicts cannot be minimized, subsection (d) of this section applies. FINDINGS: The property also does lie within a wildlife overlay zone for antelope winter range. Gary Hostick, a certified wildlife biologist with Ecological Services, Inc. has consulted with Steve George, the District Biologist for the Department of Fish & Wildlife. Gary Hostick submitted a proposal concerning mitigation for antelope range, and in particular, winter protection guidelines. The following mitigation proposal was submitted by Gary Hostick: "Blasting and crushing will cease during periods of severe winter weather conditions that may force antelope with no alternative winter range into the area adjacent to the rock pit. The Oregon Department of Fish and Wildlife District Biologist (ODFWDB) will monitor severe winter conditions based on snow depth, temperature, and numbers of antelope within 2 miles of the rock pit. ODFWDB will notify the applicant when cessation of crushing and blasting is deemed necessary by the ODFWDB due to antelope winter range conditions. Cessation of blasting and crushing may be necessary within 24 hrs. notice due to the nature of winter storms. The applicant may choose to remove crushing equipment if crushing/blasting cessation is necessary, and this removal will take up to two weeks from the date of notice of cessation." See Exhibit "B". ODF&W has reviewed this wording and has concluded that these mitigative measures should be sufficient to protect antelope during the winter months. In consultation with ODF&W, three additional wildlife species were indicated: (a) burrowing owl nest sites; (b) greater sage grouse lek sites; and, (c) pygmy rabbit den sites. Gary Hostick prepared a document entitled "Results of a Survey for Burrowing Owl Nests Burrow, Pygmy Rabbit Den Burrows and Greater Sage Grouse Leks on the property east of Bend, Oregon." In summary, the report concluded that there was no conclusive evidence of any of the three subject species being found on the project site. There was some possibility that the three burrow group observed in the den burrow complex of a pygmy rabbit. These three latter animal species have not been identified as being protected under Goal 5. 10 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc There is no significant commercial agricultural practice within the impact area or within several thousand feet of the subject property. The Applicant has also consulted with the Bureau of Land Management and their wildlife biologist, Jan Hanf. This was done in conjunction with Ecological Services, Inc. She expressed some concern about sage grouse in the area. Although, there was no finding of any sage grouse on the subject property, Applicant agreed to restrict the access to the property to one road. Applicant would agree to a program to prevent the introduction of any noxious weeds based on activities in the area. A typical mining stage area is shown on the conceptual site plan and would be designed to remove approximately 75,000 cubic yards of material at any one time. The first of these mining stages will be located almost 3,000 feet from the part-time residence. The Applicant is proposing a 200 -foot setback along Spencer -Wells Road. Access to the site will be an asphalt access road. The only visible features that will be shown would be a stockpile area, a small scale control building, and a well head building. Based on the topography of the property, these will probably not even be visible from the recreational site. Therefore, there are reasonable and practical measures that can be identified to minimize the conflict with this recreational site. With respect to the winter range for antelope, the Applicant is proposing the winter protection guidelines as set forth above. ODF&W has reviewed this wording and does not have any suggested modifications. The report prepared by Gary Hostick does not reveal any conflict with the burrowing owl, the pygmy rabbit or the greater sage grouse. There is going to be a natural area that will be preserved along U.S. Highway 20 that will be 600 feet in width. There will be a 200 -foot setback from Deschutes County Road No. 23 and again, a natural area of between 100 feet to 250 feet along the south and east sides of the property. As identified above, at any one time, there will only be one mining stage open on the property. This means that based on a site of 385 acres, Tess than 10% of the acreage would be disturbed at any one time. In further consultation with ODF&W, there were two other concems. Those concems were the fencing for the project and reclamation. Fencing of the project would involve wildlife -friendly fencing that would allow an antelope to pass under the fence with as little risk as possible. This can be done with a three -wire, smooth -wire fence with at least 18 inches from the ground to the bottom wire. There would be a maximum of 42 inches from the ground to the top wire. The reclamation plan will include replanting with native grasses and shrubs. Each year the Applicant would agree to the appropriate treating of any noxious weeks that might invade the site work. The foregoing could be listed as conditions of approval of the site plan. The Board further adopts by reference the Recommendations of the Hearings Officer contained on Pages 13, 14 and 15 of her Recommendation regarding traffic impacts on identified Goal 5 resources. See Exhibit "F". Arguably, there are reasonable and practical measures that are identified to minimize all identified conflicts. However, an ESEE analysis of the conflicts that have been identified follows. (d) The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be 11 — Final Decision 4R EQUIPMENT PA-ZC DECISION,doc minimized. Based on these conflicts only, local government shall determine the ESEE consequences of either allowing, limiting, or not allowing mining at the site. Local governments shall reach this decision by weighing these ESEE consequences, with consideration of the following: (A) The degree of adverse effect on existing land uses within the impact area; (B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and (C) The probable duration of the mining operation and the proposed post -mining use of the site. FINDINGS: Conflicts that exist within the impact area would be noise, dust, vibrations and conflicts with uses sensitive to those impacts. There may also be an impact on the quality and quantity of water available for domestic and agricultural activities. However, those conflicts seem to have been addressed by the Oregon Water Resources Department and by the USGS. There is also a conflict in the wildlife overlay combining zone for the antelope. Finally, there are potential conflicts to agricultural uses within the area. Based upon the identification of these potential conflicts, the issue is determining the ESEE (economic, social, environmental and energy) consequences of either allowing, limiting, or not allowing mining at the site. 1. Analyze ESEE Consequences to Allow Proposed Mining. A. Economic Consequences. Walker Residence: Based upon the conflicts that have been identified, i.e. noise, dust and vibration, the Walker residence is the only "approved land use" within the identified impact area that could be impacted. The most relevant economic impact would be any reduction in property values that would occur if the surface mining operation is allowed. This will depend in part on the degree of adverse effect on this existing land use. There should be no impact from vibration. With Condition 14, reasonable limitations are imposed upon the amount explosive per delay for the production blasting operations proposed by the Applicant. The effects of the blasting will be minimized because Condition 14 below requires the applicant to comply with the regulations adopted by the Office of Surface Mining, U.S. Department of Interior, in order to determine the allowable particle velocity per foot for a residence. The regulations determine what would be a safe number of pounds of explosive per delay that can be used without the necessity of seismic monitoring device. For instance, if the distance to the nearest structure is 2,500 feet, (which is the distance to the Coyote Well, the closest identified structure), the 2,500 feet is divided by a scaled distance factor of 55, which can be used without seismic monitoring. That number is then multiplied by itself and that provides the safe amount of explosives per delay. In this instance, the mine would be permitted 2,000 pounds per delay safely without a seismic monitoring device, assuming the distance to the nearest residence is 2,500 feet. The Applicant has indicated its standard practice is not to use more than 1,000 pounds of explosives per delay. With those in place, there should be no vibrations based upon the Vibration Intensity Study 12 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc performed by Apollo Geophysics Corporation. See Exhibit "C'. Although the ambient noise levels should not increase with the operation of the surface mine, it is likely that there will be noise from the site itself. However, this is minimized by the existence of U.S. Highway 20, Tying between the Walker residence and the proposed mining operation, which will occur below grade. Dust could also have an impact on the Walker residence. The degree of impact will depend upon the conditions imposed on any surface mining that would occur. The Applicant has a water right and will be able to utilize water to minimize dust, especially during crushing. There is evidence that the Applicant has other existing crushing sites within Central Oregon and that fugitive dust has not been an issue in the operation of those sites, even though two of them occur within urban growth boundaries. There is no evidence of any reduction of property values for property or residences located within an SMIA zone in Deschutes County. At least one prior ESEE analysis cited a study where the property tax assessor's office could not identify any reduction in value for property located within the SMIA zone. One mitigation measure that has been identified by the Applicant is the fact that the crushing operations will, after the first phase of mining, be located below grade. Refer to the Technical Memorandums submitted by Kleinfelder dated August 23, 2005, Exhibit "D", Although reclamation will be an ongoing part of the project, the mining operation will be in place for several years. Antelope Range: It is difficult to quantify any economic impact on the temporary loss of antelope range within the wildlife combining zone. ODF&W has agreed to mitigation measures which are reasonable and practical to reduce the impact. Eventually, the land will be reclaimed and restored as viable antelope range habitat. There is going to be a natural area that will be preserved along U.S. Highway 20 that will be 600 feet in width. There will be a 200 -foot setback from Deschutes County Road No. 23 and again a natural area of between 100 feet to 250 feet along the south and east sides of the property. Since there will be only one mining stage open on the property at any one time, there will be Tess than 10% of the entire 385 acres that will be disturbed at any one time. U.S. Highway 20: The only economic impact that can be identified to U.S. Highway 20, which is the other approved land use, would be increased maintenance on the Highway. However, this will be offset by the fact that these trucks will be on some other highway in Central Oregon if this site is not approved. Agricultural Uses: The only agricultural uses within the impact area are very limited dry range grazing. The subject property has not been grazed in the recent past. Within the impact area itself, outside of the subject property, there should be no economic impact if mining is allowed since there are no significant agricultural operations. B. Social Consequences. Preserving this site for the production of aggregate resources could have an impact on the quality of life on the Walker residence. Those impacts are identified above. Such uses may be mitigated, however, through conditions of approval imposed on the operation. These controls are imposed by county ordinance through site plan review of aggregate mining operations. The negative social consequences of mining activities are minimal in this case since they effect only one residence, which is located 2,300 feet from the property boundaries of the proposed mining site and separated by U.S. Highway 20. It is unlikely that additional conflicting uses will arise in the future, due to the zoning and public ownership of surrounding lands. Aesthetic Values: Views from U.S. Highway 20 are not a conflict that is identified under the Administrative Rules. 13 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc C. Energy Consequences. There should be no energy consequences in preserving this site for the production of mineral resources on any conflicting uses within the impact area. There can be positive energy consequences in developing a new aggregate resource site that are shorter to ultimate utilization areas east of Bend than sites that exist, for instance, at O'Neil Junction in Crook County. D. Environmental Consequences. Walker Residence: The potential impacts to the Walker residence are identified above. Those impacts should be minimized through environmental controls placed on the mining operations through site plan review. The mining operation will occur below grade to minimize noise and a water right will be required to help control dust. Wildlife Combining Zone: There are going to be environmental issues when habitat for antelope has been reduced even if temporarily. However, mitigation measures have been identified in cooperation with ODF&W to minimize those impacts. U.S. Highway 20: There will be no environmental consequences to Highway 20. Agricultural Uses: There will be no negative environmental consequences to existing agricultural practices within the impact area. 2. Analyze ESEE Consequences to Limit the Proposed Mining. A. Economic Consequences. The economic consequences to even limit the proposed mining are essentially identified above. Any permit to allow surface mining is going to be subject to the general operation standards set forth in DCC Section 18.52.110. These include, but are not limited to access, screening, air quality, erosion and control, streams and drainage, equipment removal, flood plain restrictions, noise, hours of operation, drilling and blasting, extraction site size, fish and wildlife protection, surface water management, storage of equipment, and security plans. In addition to impacts of surface mining identified in the ESEE analysis for the specific area, the primary economic consequences of limiting the proposed mining will be that imposed upon the Applicant. Additional standards and controls usually result in greater initial operating costs and ongoing costs of operation. Additional controls, however, should have positive economic impacts on the conflicts identified within the area of impact. B. Social Consequences. The social consequences of allowing mining have been identified above. Again, limiting mining through site plan and the imposition of controls should help mitigate the conflicts identified within the area of impact and in particular, the Walker residence. C. Environmental Consequences. The environmental consequences of allowing the mining have been identified above. Again, the imposition of additional controls should minimize environmental consequences, which will be reviewed as part of site plan review. The environmental consequences of allowing mining have been identified above. Imposing additional controls or limiting mining should minimize the conflicts with measures to control noise, dust, emissions and the protection of wildlife habitat. D. Energy Consequences. The energy consequences of allowing mining have been identified above. There will be shorter haul distances on routes that do not go through established urban areas. 14 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc 3. Analyze ESEE Consequences to Prohibit the Proposed Mining. A. Economic Consequences. The positive economic consequence that would occur if mining is prohibited would be the potential positive impact on the real estate value of the Walker residence. There would not be any other economic consequences to the other identified potential conflicting uses within the impact area. There could, however, be significant negative economic consequences if mining at this site is prohibited. Applicant demonstrated that aside from the Coats pit west of Bend, most of the hard rock aggregate is actually imported from Crook County. This includes the Hap Taylor & Sons operation at O'Neil Junction, the Hooker Creek operation at O'Neil Junction, and the Applicant's mining operations at O'Neil Junction and west of Alfalfa in Crook County. Both haul costs and time are significant. This site is closer to the utilization areas in east Bend than the sites at O'Neil Junction or Alfalfa. The operation of this site will also help preserve competition in the Central Oregon market for aggregate resources. The site is even more significant since the sites that have been identified at Horse Ridge are not always capable of producing ODOT quality aggregate materials. There is a nominal economic benefit to the Walker residence, offset by significant economic consequences that could occur at the site if mining is not allowed. B. Environmental Consequences. If mining is prohibited, the antelope range would, of course, be preserved. Limiting mining, however, does not preclude any activity on the property. The environmental consequences of allowing mining appear to be minimal at this site and can be mitigated. C. Energy Consequences. The energy consequences of not allowing mining on this site would eventually involve increased haul distances and/or increased time for hauling. The O'Neil Junction area in Crook County remains a primary source of hard rock. Those haul trucks must necessarily come through either Terrebonne, the O'Neil Junction north of Redmond and always through the City of Redmond to utilization sites in Bend. D. Social Consequences. The owners of the Walker residence would benefit if mining were not allowed. The potential social consequences would also include possible loss of jobs to Crook County in the mining industry. Negative social consequences would also include the continued reliance on mining operations in Crook County, necessitating haul routes through established urban areas. 4. Minimizing Conflicts. Based upon a review of the ESEE consequences of allowing, limiting or not allowing mining on the site, the mining should be allowed on the site, subject to certain required measures to minimize conflicts. (e) Where mining is allowed, the plan and implementing ordinances shall be amended to allow such mining. Any required measures to minimize conflicts, including special conditions and procedures regulating mining, shall be clear and objective. Additional land use review (e.g., site plan review), if required by the local government, shall not exceed the minimum review necessary to assure compliance with these requirements and shall not provide opportunities to deny mining for reasons unrelated 15 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc to these requirements, or to attach additional approval requirements, except with regard to mining or processing activities: (A) For which the PAPA application does not provide information sufficient to determine clear and objective measures to resolve identified conflicts; (8) Not requested in the PAPA application; or (C) For which a significant change to the type, location, or duration of the activity shown on the PAPA application is proposed by the operator. In order to permit mining on the site and minimize the conflicts with on-site and surrounding uses, the following conditions of operation are adopted, as approved by the Board on March 1, 2006: 1. The Applicant must meet the general operation standards set forth DCC Section 18.52.110. See Exhibit "I" 2. The following mitigation proposals shall be imposed as a condition of approval: a. "Blasting and crushing will cease during periods of severe winter weather conditions that may force antelope with no alternative winter range into the area adjacent to the rock pit. b. The applicant will allow the Oregon Department of Fish and Wildlife District Biologist (ODFWDB) onsite to monitor severe winter conditions based on snow depth, temperature, and numbers of antelope within 2 miles of the rock pit. c. Upon ODFWDB notification to the applicant when cessation of crushing and blasting is deemed necessary by the ODFWDB due to antelope winter range conditions, the application will ceaseblasting and crushing be necessary within 24 hrs. of the ODFWDB notice d. The applicant may choose to remove crushing equipment if crushing/blasting cessation is necessary, and this removal will take up to two weeks from the date of notice of cessation." 3. Any fencing of the project must be wildlife friendly fencing that would allow an antelope to pass under the fence with as little risk as possible and must be approved by ODF&W. a. The fencing shall be a three wire smooth wire fence or better with at least 18 inches from the ground to the bottom wire. b. There would be a maximum of 42 inches from the ground to the top wire. 4. The reclamation plan will include replanting with native grasses and shrubs. a. Each year, the Applicant must treat any noxious weeds that might invade the site work. b. The Applicant must work with the Deschutes County Weed Board and adhere to the Weed Board's requirements for eradication of noxious weeds. 5. A 600 -foot setback shall be maintained along U.S. Highway 20, the entire length of the project. a. All mining activities shall be set back 200 -foot from Deschutes County Road No. 23. b. A natural area and buffer of between 100 foot and 250 feet shall be maintained along the south and east sides of the property. 16 — Final Decision 4R EQUIPMENT PA-ZC DECISION.doc 6. All access roads into the property shall be asphalt, and all internal roads shall be paved up to the mining site. 7. Any structures on the property shall be limited to a truck scale, scale control building and well head building. 8. Prior to any mining activities, the applicant shall acquire a water right to provide a pond and water storage, with a pump, to provide for dust control during the excavation and processing of materials on-site, and the water shall be used to provide dust control during the excavation and processing of materials. 9. Beginning with the second stage of mining, the on-site crushing shall occur below grade. 10. Any berms to be located on the property shall: a. not exceed 15 feet in height, b. shall be used to store material for future reclamation, and c. shall be sprinkled with water to reduce dust. 11. Any utility lines on the property shall be underground utility lines. 12. No mining or excavation shall occur within the designated flood plain unless otherwise approved through a conditional use permit process. 13. The property will be reclaimed in its natural state in accordance with an operating and reclamation plan to be approved by DOGAMI. See Exhibit "H". 14. Applicant shall comply with the regulations adopted by the Office of Surface Mining, U.S. Department of Interior, in order to determine the allowable particle velocity per foot for a residence. a. In addition, the Applicant's first shots will be kept small and monitored with a seismic device that reads particle velocity per foot. b. The Applicant will place the monitoring device off of the 4-R property line adjacent to U.S. Highway 20. c. Once Applicant has the seismic information on the initial blast, Applicant can adjust the blasts accordingly to insure that Applicant stays within these standards. 15. All lighting on the property shall conform to the lighting codes of the County and such lighting must be contained on the property. 16. Applicant shall restrict the access to the property to one road. 17 — Final Decision 4R EQUIPMENT PA-ZC DECISION (2).doc IV. CONCLUSION: The Board hereby approves the plan amendment and zone change in File No. PA -04-8 and ZC-04-6, subject to the conditions of operation set forth above in Section 4. Minimizing Conflicts. DATED this ; / day of , 2006. Dated this of , 2006 BOARD OF OUNTY COMMISSIONERS ATTEST: Recording Secretary D NNIS R. LUKeC AIR BEV CLARNO, COMMISSIONER jW LY,' CO ISSIONER 18 — Final Decision 4R EQUIPMENT PA-ZC DECISION (2).doc Community Development Department / Planning Division Building Safety Division Environmental Health Division fews 4111150D 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: July 20, 2005 TO: Board of County Commissioners FROM: Paul Blikstad, Associate Planner RE: Public hearing on the proposed plan amendment/zone change for a surface mine in the Millican Valley area for 4-R Equipment, LLC. APPLICATION INFORMATION: 4-R Equipment (Ron Robinson) has applied for a plan amendment and zone change on approximately 365 acres from Exclusive Farm Use — Horse Ridge subzone (EFU-HR) to Surface Mining (SM). The property also has a Wildlife Area (WA) combining zone, designated as antelope habitat, and is also partially in the Landscape Management (LM) combining zone associated with Highway 20 East. A portion of the property is also zoned Flood Plain (FP) in the area described as "dry river" on the Flood Insurance Rate Map. The property is mostly surrounded by land under the administation of the Bureau of Land Management, with four privately -owned parcels adjacent to the subject 365 acres. The subject property is located at the intersection of Highway 20 East and Spencer Wells Road in the Millican Valley area, below Pine Mountain. The proposed surface mine is located on the south side of Highway 20 just after cresting the top of Horse Ridge heading east on Highway 20. The site is approximately three miles west of the Millican rural commercial area. The applicant is requesting an amendment to the County Comprehensive Plan to include the subject property in the County's inventory of mineral and aggregate resources, and to rezone the property for surface mining. According to the applicant's burden of proof statement and exhibits (including a geotechnical report), the property has approximately 17 million cubic yards of rock (basalt) which is identified as exceeding ODOT's standards for highway construction aggregate. The following mining activities were proposed on the site: blasting, excavation, sorting, crushing and stockpiling. APPLICATION PROCESS TO DATE: These applications were referred to the County Hearings Officer for a public hearing. Two public hearings on the applications were held, one on February 15, 2005, and the second on April 20, 2005. Board Memo File Nos. PA-04-8/ZC-04-6 Page 1 of 5 Quality Services Performed with Pride The Hearings Officer's written recommendation was mailed out on June 2, 2005. Section 22.28.030(C) of Title 22 of the Deschutes County Code specifies that an application for a plan amendment (with the associated zone change) that requires an exception to the Statewide Planning Goals or concerning lands designated forest or agricultural use, shall be heard de novo by the County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer. Consequently, the Board is required to conduct a hearing on these applications, and make a decision on whether or not to approve them. A public hearing before the Board is scheduled for Tuesday, August 23, 2005 at 9:00 a.m. ISSUES BEFORE THE HEARINGS OFFICER: The two public hearings before the Hearings Officer included much testimony from property owners in the area. The primary issues brought up in the hearing are as follows: * Concerns regarding blasting and crushing of basalt (primarily blasting) and those impacts on the Native American pictographs located in a small canyon north of the proposed mining site, on the Walker property. Additionally, there is an old well (referred to as Coyote Well) used for many years on the same property. Neither of these sites are currently on the County's historic resources inventory. Concerns regarding noise, dust and vibration from the mining, and the potential for water drawdown from use of underground water for the mining operation, which might impact the current residential use (Walker residence and Evans Well Ranch) of nearby property, as well as any future residence, * Concerns regarding dust from the mining operation and interference with the Pine Mountain Observatory operation, specifically the use of the existing telescopes at the observatory. The prevailing winds in this area (from the northwest) might put a significant amount of dust in direct conflict with the observatory. * * * * Concerns regarding off-road vehicle use on adjacent public land which might be impacted by the dust and noise created from the mining operation. Concerns regarding Impacts to wildlife in the area (antelope, sage grouse, other smaller animals), especially the loss of habitat through the mining operations. Concerns regarding quality of life issues with respect to adjacent properties and uses. Concerns regarding the traffic impacts from the mining operations, specifically on Highway 20. HEARINGS OFFICER'S RECOMMENDATION: The Hearings Officer's written recommendation was mailed out on June 2, 2005. A copy of her recommendation is attached to this memo. Significant findings from that recommendation are summarized below: * She found that under Oregon Administrative Rules 660-0023-0180 that the site contains a significant aggregate resource (approximately 17 million cubic yards of aggregate material). The Hearings Officer found that the "impact area" for the proposed mining site Board Memo File Nos. PA-04-8/ZC-04-6 Page 2 of 5 * far exceeds the 1,500 foot standard under OAR 660-0023-0180(5)(a), and includes uses as far away as the Pine Mountain Observatory (approximately 6.5 miles to the southeast). She found that the proposed surface mine will create noise, dust and vibration impacts that will conflict with residential uses within the impact area, as well as that dust will affect the operations of the Pine Mountain Observatory and the use of the ORV trails. Additionally, the Hearings Officer found that the applicant did not provide sufficient evidence to support a conclusion that the proposed minimization efforts will (1) limit noise; (2) minimize dust; and (3) protect surrounding properties from vibration damage. And lastly, the Hearings Officer found that there is insufficient evidence in the record to address (1) whether the proposed mining activities will affect the valley water supply and/or convert agricultural land to other uses; (2) if the water supply is affected, whether the impact would violate the ORS 215.296(1) standard; or (3) what minimization efforts the applicant proposes to address these concerns. Based on these findings, the Hearings Officer found on page 19 of the written recommendation the following: "Based on the preliminary findings adopted above, the Hearings Officer concludes (1) that only the approval criteria set forth in OAR 660-023-0180 apply to an application to permit mining activity on the subject property; (2) that there is insufficient evidence to approve the application, as the applicant has not identified minimization measures that may avoid or minimize conflicts to the extent that they do not have to be considered in an ESEE analysis conducted pursuant to OAR 660-023-0180(5)(d); and (3) the applicant has not submitted an ESEE analysis to address the identified conflicts. An ESEE (Economic, Social, Environmental and Energy consequences) analysis of the proposed use is required in deciding whether to allow, limit or prohibit a conflicting use (in this case a use that may conflict with the proposed mining operation). This type of analysis is required under Oregon Administrative Rules 660-023-0040 and 660-023-0180(5)(d). The Hearings Officer found that she cannot recommend approval of the proposed changes based on a lack of evidence and submittals by the applicant. BOARD ACTION: The Board will need to make a decision on the applicant's proposal. As stated above, the applicant has waived the 180 -day review period established in the OAR's. The aggregate resource on this site has been determined to be significant by the Hearings Officer under OAR 660-023-0180(3). The Board will need to confirm the Hearings Officer's findings of significance. If the resource is determined to be significant, it is required to be placed on the County's aggregate and mineral resource inventory in the County Comprehensive Plan. The Hearings Officer also determined that the impact area for the proposed site varies (see findings on pages 9-10 of the Hearings Officer's recommendation) based on the existing uses in the surrounding area. The Board will need to determine whether the Hearings Officer's identifed impact area is appropriate. Board Memo File Nos. PA-04-8/ZC-04-6 Page 3 of 5 The Hearings Officer found that the applicant has not provided enough information/evidence to determine that the noise, dust and vibration impacts, as well as impacts on agricultural practices, can be minimized (as required under OAR 660-023-0180(5)(c)). The Administrative Rule requires that the measures specified by the local government to minimize the identified conflicts must be "reasonable and practical." Staff believes that the applicant must provide additional information/evidence as to how the mining impacts can be minimized, and the Board will need to determine whether the measures proposed by the applicant are reasonable and practical. If the Board determines that the applicant's proposed minimization measures are appropriate and will minimize all the identified conflicts, mining is allowed at the site and no ESEE analysis is required (see OAR 660-023-0180(5)(c)). Because the Hearings Officer could not find that all the identified impacts were minimized, she determined that an ESEE analysis is required by OAR 660-023-0180(5)(d) to make the appropriate findings to allow mining. If the applicant cannot provide the information/evidence to support findings by the Board that the impacts can be minimized, the applicant must submit a detailed ESEE analysis of the identifed conflicts, as prescribed under OAR 660-023-0180(5)(d). OAR 660-023-0180(5)(d) states that: "The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, local government shall determine the ESEE consequences of either allowing, limiting, or not allowing mining at the site." Staff believes that this language, along with subsection (5)(e), gives the Board discretion whether to allow mining at this site. Included within the ESEE analysis is a program to achieve the goal (whether to allow, limit or prohibit identified conflicting uses to the mining site). The standards specified for achieving the goal in this analysis could have an impact on the existing uses within the Hearings Officer's prescribed "impact area." The ESEE analysis would have to be adopted by the Board as part of the surface mining element of the County Comprehensive Plan. If the resource at the site is determined to be significant, the Plan Amendment must be approved to place the proposed site on the County's mineral and aggregate resource inventory. This will not necessarily allow any mining of the resource, but will allow the resource to be protected. If the Board finds that the identified impacts are minimized, or adopts an ESEE consequences determination to allow mining, the site will be zoned for surface mining as part of the zone change request. If the zone change is approved, the applicant would be required at some future date to apply for site plan review to initiate surface mining under Chapter 18.52 of Title 18 of the Deschutes County Code. THE FILE: The existing file for the proposed plan amendment/zone change request contains several hundred pages, including several letters of opposition. Tammie Walker, who has a home near the proposed mine, submitted the most letters and exhibits. See the attached exhibit list. The exhibits submitted by the opponents are all directed at the issues listed above. As you can gather from the issues, this is a contentious matter, and one that may be appealed to LUBA Board Memo File Nos. PA-04-8/ZC-04-6 Page 4 of 5 either way. The applicant has waived the required 180 -day review period on these applications, so there is no specific time constraint on making a decision. I am submitting for your review a copy of the Hearings Officer's recommendation, Oregon Administrative Rules 660-023-0180, Mineral and Aggregate Resources, and the list of exhibits for the file. Feel free to contact me at your convenience for any questions on this matter. Board Memo File Nos. PA-04-8/ZC-04-6 Page 5 of 5 BRYANT, LOVLIEN & JARVIS, PC Al IORNIA' Ad L.ANv L•17VSL1y111.1) 191 Nei] R. Bryant Robert S. Lovlien Lynn F. Jarvis John A. Berge Sharon R. Smith John D. Sorlie Mark G. Reinecke Melissa P Lande Kitri C. Ford Paul J. Taylor Christopher A. Bagley Kyle D. Wuepper Jeremy M. Green Kelly L. Schukart Helen L. Eastwood BEND 591 S.W. Mill View Way Mail: P.O. Box 880 Bend, Oregon 97709 Phone: (541) 382-4331 Fax: (541) 389-3386 WWW.BLJLAWYERS.COM April 17, 2008 HAND DELIVERED PAUL BLIKSTAD DESCHUTES COUNTY COMM. DEVELOPMENT DEPT. 117 NW LAFAYETTE AVE. BEND, OR 97701 RECEIVED BY: m APR 1 7 2008 DELIVIPRE© BY: Re: Tammera & Clay Walker vs. Deschutes County and 4-R Equipment, LLC LUBA No.: 2007-013/Remand Hearing Dear Paul: Enclosed please find a Memorandum on the issues on remand in the above - captioned matter, together with Exhibits supporting proposed findings of fact. The Applicant would reserve the right to submit additional evidence at the time of the remand hearing. We now respectfully request that the remand hearing be set at your earliest possible convenience. As always, we appreciate your cooperation in this matter. Very truly yours, ROBERT S. LOVLIEN RSL/alk Encl. cc: 4-R Equipment, LLC Douglas DuPriest 6829-076 101.doc ISSUES ON REMAND In the case of Walker vs. Deschutes County and 4-R Equipment, LLC, LUBA No. 2007-013, LUBA sustained all or part of the second, sixth, eighth, ninth and twelfth assignments of error and denied the remainder of the assignments of error alleged by the Petitioners. The eleventh assignment of error has not been resolved. The issue there is whether or not the County is required to adopt amended or additional findings under its ESEE Analysis for purposes of OAR 660-023-0180(5)(d). LUBA directed that the County must conduct additional proceedings that "may if the County deems it necessary, include introduction of new evidence and adopt amended or additional findings addressing the remanded issues." The purpose of this Memorandum is to identify those assignments of error that were sustained, and to identify evidence in the record, as well as additional new evidence, that supports amended or additional findings addressing the remanded issues. The Memorandum will also address whether amended or additional findings are required under the ESEE Analysis required by OAR 660-023-0180(5)(d). 1. Sage Grouse. The Commissioners had declined to expand the impact area to include a sage grouse lec located near the subject property. The Commissioners concluded that since the mining site is outside of the SBM (sensitive bird and mammal) Combining Zone, and that the sage grouse site was protected by the SBM Combining Zone, that the site did not represent a significant potential conflict requiring the expansion of the impact area. However, LUBA, in its Decision, found as follows: "According to Petitioners, sage grouse use of the lees is dependent upon flight patterns that cross over or near the subject property, and `factual information in the record indicates that the mining activity may disrupt those flight patterns, 1 — Issues on Remand 6829-076 3QIJ.dANT, VIN & JR, PC A�I'oI9NLY5LOAT LAWLEEs'rABLISAHE[7VIS191s 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BULAWYEAS.COM which in turn may disrupt use of the lecs. Absent a more focused response from the County or Intervenor, we agree with the Petitioners that the County's findings are inadequate to explain why the County can reasonably rely on the SBM Zone to conclude that there will be no `significant potential conflicts' with the lecs and thus decline to expand the impact area to include them.' In response to this finding, the Intervenor requested that Gary Hostick, a certified wildlife biologist, review the evidence that is in the record. Mr. Hostick's report is attached hereto as Exhibit "1" and incorporated herein by reference. Reference is made to a map, which showed sage grouse movement patterns, through radio -marked bird locations from 1991 to1993. He concludes that it would be erroneous to deduce that a bird flew directly through the planned rock pit area. The schematic map was meant to show well known grouse behavior when female sage grouse move between nest areas and lecs during the nesting season, and not to indicate flight paths or patterns. He also references the consultation that the Intervenor had both with the U.S. Bureau of Land Management and the Oregon Department of Fish & Wildlife before the Application was submitted to Deschutes County. He also makes reference to the SBM Zone and the process by which it was adopted. It is also instructive to set out the purpose clause of the Sensitive Bird and Mammal Habitat Combining Zone, DCC 18.90.010. "The purpose of the Sensitive Bird and Mammal Combining Zone is to insure that sensitive habitat areas identified in the County's Goal 5 sensitive bird and mammal inventory as critical for the survival of the northern bald eagle, great blue heron, gold eagle, prairie falcon, osprey, great grey owl, sage grouse and Townsend's big -eared bat are protected from the effect of the conflicting uses or activities which hare not subject to eh Forest Practices Act. This object shall be achieved by implementation of the decision resulting from the economic, social, environmental and energy analysis (ESEE) for each inventoried sensitive habitat area. ,, 2 — Issues on Remand 6829-076 3 oANT, LOVLIEN & JARVIS, PC tFCI'ORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM Furthermore, the sensitive habitat area is site-specific for each sensitive bird or mammal location. The sensitive area to be protected for the sage grouse lec is a radius of 1,320 feet. PROPOSED FINDING: The Board readopts its previous finding wherein it declined to expand the impact area to include a sage grouse site (lect) listed as Site No. DEO999-01 on the County's wildlife inventory. In addition, the map known as "Figure 12. Sage Grouse Movement Patterns Identified Through Radio -Marked Bird Locations, Prineville District, BLM, 1991 to 1993" does not necessarily mean that a sage grouse has flown directly through the planned rock pit area. The map only indicates that a sage grouse was located both at the lec and at Broadman Rim. The bird may have actually taken a different flight path or moved between two locations via a combination of flights. The schematic map is meant to show known grouse behavior and not to indicate flights paths. Furthermore, the Applicant did consult with the BLM and ODF&W prior to submittal of the Application. In addition, Applicant performed a survey of habitat in the rock pit area to discover any additional strut sites or evidence of nesting sites. The County has not received any additional comments from BLM or ODF&W. Finally, the SBM Habitat Combining Zone is designed to protect known sensitive bird sites, including sage grouse lects. It has been determined that a sensitive habitat area would be within a radius of 1,320 feet of a known sage grouse lect. The subject property is not within 1,320 feet of any known sage grouse lec. 2. Evans Well Ranch. The Petitioners cited testimony from the owners of the Evans Wells Ranch that their BLM grazing allotment is within the one-half mile impact area, and that blasting and other impacts of the proposed mining could cause cattle on that allotment to abandon that pasture and instead graze more heavily on privately owned pastures on the ranch itself, outside the impact area. Petitioners speculated that if mining operations impacted sensitive grouse populations, BLM could restrict grazing on the ranchers' allotments in the area. LUBA concluded as follows: "* * * in view of the above -noted testimony, that the proposed mining will conflict with nearly cattle operations, the county must explain in its findings why 3 — Issues on Remand 6829-076311 �d ANT, LOVLIEN & JARVIS, PC A�PIOIWEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM it believes, despite that testimony, that the proposed mining will not result in `significant potential conflicts' with respect to the Evans Wells Ranch." The Evans Wells Ranch (Nash) grazing allotment on BLM land consists of 22,285 acres. The allotment all lies west of Spencer Wells Road and south of U.S. Highway 20. A copy of the location of the grazing allotment is attached hereto as Exhibit "2" and incorporated herein by reference. It is the practice of the BLM to assign a time of year and length of time for each pasture within the grazing allotment. One 40 -acre portion of the 22,285 -acre grazing allotment does abut the southwest corner of the proposed mining site. The proposed mining site will be fenced, prohibiting grazing cattle from entering into the site itself. The abutting 40 -acre portion of the grazing allotment amounts to only less than one percent (1%) of the total grazing allotment for Evans Wells Ranch. More than 22,245 acres of the grazing allotment lie outside of the impact area. Both site visits and aerial photographs confirm that there are no irrigated pastures within three (3) miles of the subject property. The 40 -acre parcel of the grazing pasture that abuts the subject property is actually bordered on three sides by private property. Although the testimony of the Applicant may be anecdotal, the Applicant does operate a similar mining site east of Alfalfa. The property is surrounded by a BLM grazing allotment owned by Wayne Singhose. Mr. Singhose has a key to the Alfalfa mining site, allowing his cattle to use the water impound, if necessary. He also uses the scale to weigh hay that he hauls from his ranch. PROPOSED FINDING: The Evans Wells Ranch (Nash) BLM Grazining Allotment consists of 22,285 acres. The grazing allotment lies west of Spencer Wells Road and south of Highway 20. There is an isolated 40 -acre portion of the grazing allotment that abuts the subject property. However, the subject property will be fenced. It will maintain a 200 -foot setback from Spencer Wells Road. This amounts 4 — Issues on Remand 6829-076 311.O'ANT, LOVLIEN & JARVIS, PC 9 TORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM to less than one percent (1%) of the entire BLM grazing allotment. There is no evidence of any irrigated pastures within three miles of the subject property. Lastly, the 40 -acre parcel is also surrounded on three sides by private property. Based upon the size of the Evans Wells Ranch BLM grazing allotment and location of the grazing allotment, the Board concludes that the proposed mining would not result in a "significant potential conflict" with respect to the Evans Wells Ranch grazing allotment and the operation of the ranch. 3. Religious and Cultural Visits. The Petitioners, in their assignment of error, cited testimony that the area around the pictograms on the Walker property include numerous burial sites and that tribal members visit the area to conduct religious and cultural ceremonies honoring their ancestors. In response to this testimony, LUBA found as follows: "A tribal cultural resource protection specialist stated that the proposed mining operations would destroy and area that demands quiet for tribal members that visit for religious and cultural purposes. Absent some response from the Intervenor or the County on this issue, we agree with the Petitioners that remand is necessary for the County to evaluate whether such visits are `existing uses for purposes of OAR 660-023-O18O(5)(b)(A) and if so, to evaluate alleged conflicts with those uses.'" There was no evidence that there was an ongoing practice of tribal members visiting the pictograms for religious or cultural purposes. The pictograms themselves are located within 500 feet of U.S. Highway 20, which is an east/west highway across the State of Oregon. The pictograms are located north of U.S. Highway 20 across the highway from the proposed mining site. Furthermore, the pictograms are 3,044 feet from the nearest point that mining would occur on the subject property. There is no evidence that any activity on the mining site would be any greater than the highway noise and vibrations generated on U.S. Highway 20 on a daily basis. PROPOSED FINDING: There has been no evidence presented that tribal members have been visiting the pictograms on a regular basis for religious and cultural purposes. The Board does not find that such visits are therefore "existing uses" for purposes of OAR 660-023-O18O(5)(b)(A). Furthermore, the activities that 5 — Issues on Remand 6829-076 300.d9rolw gRyANT, EYsLOVAT LAWLIEN &, ESTABLIJSAHEDRVIS1915 , PC 591 SW Mil] View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM would occur on the proposed surface mining site will not generate any more noise or disturbances than already exist with the presence of U.S. Highway 20. 4. Coyote Well. Petitioners argued that the County failed to evaluate whether vibrations from blasting would impact the Coyote Well structure. LUBA concluded that remand was necessary so the County could adopt findings to address this issue. In response to this assignment of error, the Applicant contracted with Kleinfelder, Inc. to analyze the vibrations from blasting operations at the proposed mining site. The purpose of the review was to assess potential blasting vibrations and impact in response to structures and historical artifacts, as identified in the LUBA Decision. A Technical Memorandum was prepared by William C.B. Gates, Ph.D., P.E., C.E.G. and R. Scott Wallace, R.G., both of Kleinfelder West, Inc. dated January 4, 2008. Said Memorandum is attached hereto as Exhibit "3" and incorporated herein by reference. The Memorandum concluded as follows: "Based on our analysis and that of Apollo Geophysics Corporation, the proposed blasting plan scenario and the proposed operations for Spencer Well Pit, damaging vibrations generated from blasting is unlikely to impact structures on the Walker Property, Coyote Well, Pictographs, Best Shelter and the Evans Well Ranch. Vibrations, reported as peak particle velocity (PPV) at full build out are expected to be less than 0.2 inches per second at the Coyote Well. Similarly, vibration displacement of rock as a result of blasting vibrations is expected to be less than 0.005 inches at the Coyote Well. Ground vibrations are expected to be within safe limits established by the Office of Surface Mining (Siskind, et al., 1980). Monitoring points at key areas around the perimeter of the mine site are recommended to monitor vibrations during blasting operations." PROPOSED FINDING: Based upon the Technical Memorandum prepared by Kleinfelder West, Inc. the Board concludes that vibrations from blasting should not impact the Coyote Wells structure. However, monitoring points at key areas around the perimeter of the mine site will be required to monitor vibrations during blasting operations to be sure that ground vibrations are within the safe limits established by the Office of Surface Mining. 6 — Issues on Remand 6829-076 31.1 ,YANT, LOVLIEN & JARVIS, PC -,r.. JRNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM 5. Best Shelter. The County did identify dust, noise, traffic and vibrations as potential conflicts around the Best Shelter. This is a structure located on private property approximately 1,775 feet from the subject property. Petitioners argue that the County failed to evaluate those potential impacts and either mitigate the impacts or address them under the ESEE Analysis. They concluded that the Intervenor did not cite any findings that addressed conflicts with the shelter or explain why such conflicts need not be addressed. There is a structure that has been identified as the "Best Shelter" located on private property approximately 1,775 feet from the subject property. It would not be accurate to identify this as a "historic structure". A picture of the structure is attached hereto as Exhibit "4" and incorporated herein by reference. There is some evidence of human occupancy, but that seems to occur on a very sporadic basis. The structure itself has been built without the issuance of any building permits. It is not occupied full-time. The Applicant and its representatives have never seen anyone at the shelter itself. Based upon the location of the shelter, the impact of increased traffic on Spencer Wells Road would be of no greater impact than the existing traffic on U.S. Highway 20. Based upon the evaluation done by Kleinfelder West, Inc. to identify potential blasting vibrations, Applicant has no reason to believe that vibrations would be an issue for the existing structure. Vibrations generated from the subject property would be no greater than noise already generated by U.S. Highway 20. There is no evidence of any agricultural use on the property upon which the Best Shelter is located. PROPOSED FINDING: Based upon the Technical Memorandum dated January 4, 2008 from Kleinfelder West, Inc., the vibrations from blasting operations 7 — Issues on Remand 6829-076 3I I.a T, EYS LOVLAT LAWIEN & FSTABUSJARVISHED1915, PC Q{�UItN 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM should not be a conflict with the Best Shelter. The Best Shelter has been built without any permits. There is no evidence of permanent or regular human occupancy of the Best Shelter. Based upon the location of the Best Shelter, the projected noise from the subject property would be no greater than the noise already generated by U.S. Highway 20. This even takes into account the increase of traffic on Spencer Wells Road from the mine itself. Finally, there is no evidence that there will be any more dust generated from the subject property than is already generated from the operation of off road vehicles in the Millican Valley. 6. Whether the Mining Pit Itself will Dewater Nearby Shallow Perched Aquifers. Petitioners made the argument whether the mining pit itself could dewater nearby shallow perched aquifers. LUBA agreed that the County did not evaluate the concern of whether the mining pits itself might impact shallow perched aquifers. In response to this assignment of error, Applicant contracted with Kleinfelder West, Inc. A Memorandum was prepared January 14, 2008 by William Gates, Ph.D., P.E., C.E.G. and R. Scott Wallace, R.G. Said Memorandum is attached hereto as Exhibit "5" and incorporated herein by reference. They conducted a hydrogeologic review of the northwestern portion of the Millican Basin and the proposed Spencer Wells Pit/Quarry area. They concluded as follows: "Based on our hydrogeologic evaluation, the proposed Spencer Wells Pit appears unlikely to adversely impact water quality or water levels within shallow, perched aquifers and hydrogeologic continuity with Coyote Well or the intermittent drainage (dry river) which serves an outlet for surface water run off within the Millican Valley." PROPOSED FINDING: Based upon the Memorandum prepared by Kleinfelder West, Inc., the County concludes that the Spencer Wells Pit would not adversely impact water quality or water levels within shallow perched aquifers and hydrogeologic continuity with Coyote Well or the intermittent drainage (dry river) that serves an outlet for surface water run off within the Millican Valley. 7. Impact of Blasting Generated Dust on Walker Residence. The Petitioners argued that the County's decision did not evaluate dust from blasting, that blasting 8 — Issues on Remand 6829-076 3 i'I�dYANT, LOVLIEN & JARVIS, PC 96TDRNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 3824331 fax (541) 389-3386 WWW.BLJLAWYERS.COM generates significant amounts of dust, and that water cannot be used to control dust from blasting, and that the comparison sites the County referred to in its Decision did not involve excavation and blasting. LUBA concluded as follows: "It may be, as Petitioners suggest, that there are no reasonable and practicable measures to minimize or reduce adverse impacts on the Walker residence caused by blasting generated dust, in which case the ESEE Analysis must consider those impacts in weighing whether to allow, limit, or prohibit mining. However, the County's ESEE findings on this point apparently did not consider or evaluate that source of dust." Although not directly on point, Kleinfelder West, Inc. did conclude in its analysis of vibrations from blasting operations at the proposed Spencer Wells Pit dated January 4, 2008, that fly rock (rock ejected from the blast site), was not anticipated based upon the typical blasting design and drilling patterns to be utilized by the Applicant. The Applicant disagrees that there are no reasonable and practical measures to minimize or reduce adverse impacts on the Walker residence caused by blasting generated dust. Blasting does not occur very often. There will be blasting generated dust. However, the way to minimize or even eliminate blasting generated dust on the Walker residence is to conduct blasting when the wind directions are blowing away from the Walker residence. The Applicant has testified that blasting activities generally occur during the winter months when there is manpower availability in the construction business. The Applicant therefore contracted with Kleinfelder West, Inc. to monitor and record wind speed and direction for the proposed site. Anemometer data was downloaded on a monthly basis beginning November 19, 2007 through December 26, 2007. The results of these preliminary studies indicated that 62.6% of the time the wind was blowing from a westerly direction to the east. See Exhibit "6". 37% of the time the 9 — Issues on Remand 6829-076 3 , ,'ANT, LOVLIEN & JARVIS, PC ATTORNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLLAWYERS.COM wind was blowing from the east to the west. In both instances, the wind would be blowing away from the Walker residence. PROPOSING FINDING: The County concludes that there will be blasting generated dust generated by the mining operation. However, there are reasonable and practical measures to minimize and/or reduce adverse impacts on the Walker residence. Any blasting operations that occur on the site will occur when the wind is blowing away from the Walker residence. The Aneometer monitoring activities, as reported by Kleinfelder, indicate that a significant portion of the time during the winter months those prevailing winds are blowing away from the Walker residence. 8. Conflicts with Agricultural Uses. OAR 660-023-018(5)(b)(E) requires the County to consider "conflicts with agricultural uses". OAR 660-023-0180(5)(c) provides that minimizing identified conflicts with agricultural practices means conforming to the requirements of ORS 215.296. This would require findings on whether the proposed use would force a significant change in or significantly increase the cost of agricultural practices on nearby lands. LUBA found that the rule is not concerned with the relative significance of the agricultural use. The County's decision must address ORS 215.296 to determine whether there are proposed measures to minimize conflicts to agricultural practices under this statute. The impact area has been identified as an area within one-half mile of the property line of the subject property. There is no evidence of any dry land grazing or other agricultural uses on any property lying north of U.S. Highway 20 within one-half mile of the subject property. There is no evidence of any dry land grazing or other agricultural uses within one-half mile of the subject property to the east or to the immediate south of the property. The surrounding property is all undisturbed sagebrush with the exception of off road vehicle recreational uses. 1 O — Issues on Remand 6829-076 Vita,VIEAB JR RNEYSLOAT LALW, N ESTABLISAHEDVIS1915, PC 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM The property that lies within one-half mile to the west of the subject property that is in private ownership. It also has no evidence of dry land grazing or other agricultural uses. There is an adjacent 40 -acre parcel to the west and additional properties administered by the BLM lying south and west of the subject property, that are part of the Evans Wells Ranch (Nash) BLM Grazing Allotment. The Evans Wells Ranch Grazing Allotment on BLM lands consists of 22,285 acres. The allotment all lies west of Spencer Wells Road and south of U.S. Highway 20. A copy of the location of the grazing allotment has been attached hereto and incorporated herein by reference. The BLM assigns a time of year and length of time for each pasture within the grazing allotment. Of that portion of the grazing allotment that lies within the impact area, that portion of the grazing allotment amounts to only one percent (1%) of the total 22,285 - acre grazing allotment for the Evans Wells Ranch. The grazing allotment is separated from the subject property by Spencer Wells Road. The subject property will be fenced, which will keep livestock from entering the subject property itself from the adjacent grazing allotment. There will also be a 200 -foot buffer that will be provided throughout the life of the project. There is no evidence of any sources of water on the grazing allotment within the buffer area. Therefore, within the impact area, there is only evidence of a portion of a BLM grazing allotment. The allotment is only used for the dry land grazing of cattle. The proposed use will not force a significant change in accepted farm practices or significantly impact or increase the cost of accepted farm practices in the area. PROPOSED FINDING: Within the impact area, the only agricultural uses that exist are the Evans Wells Ranch (Nash) BLM Grazing Allotment. The 11 — Issues on Remand 6829-076 5 TLOVLIEN & JARVIS, PC' RNEYS AT LAW, ESTABLISHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM allotment itself consists of 22,285 acres. The portion of the allotment within the impact area amounts to less than one percent (1%) of the entire BLM grazing allotment. The only agricultural use of the land within the impact area is this dry land grazing allotment. There are no identified water sources within this portion of the BLM allotment. The use provides for a 200 -foot buffer adjacent to the BLM allotment. The proposed use will be fenced. The proposed use is separated from the BLM allotment by the Spencer Wells Road, also. The proposed use will not force a significant change in accepted farming practices in the area. The proposed use will not significantly increase the cost of these accepted farm practices. The existing Spencer Wells Road and the buffering would minimize any conflicts to these agricultural practices. 9. ESEE Analysis. Based upon the additional evidence submitted by the Applicant, the Petitioners would propose that two additional conditions be attached to the approval. Based upon the Technical Memorandum prepared by William C.B. Gates, Ph.D., P.E., C.E.G. of Kleinfelder West, Inc. dated January 4, 2008, which is attached hereto as Exhibit "3", Petitioners would propose monitoring points at key areas around the mine site be required to monitor vibrations during blasting operations to insure that ground vibrations are within the safe limits established by the Office of Surface Mining. Next, based upon the anemometer data collected by Kleinfelder, blasting will occur only when the wind is blowing away from the Walker residence. 12 — Issues on Remand 6829-076 301TT, LOVL1EN & JARVIS, PC x�bRNEYS AT LAW, FSFABLLSHED 1915 591 SW Mill View Way PO Box 880 Bend, Oregon 97709-0880 (541) 382-4331 fax (541) 389-3386 WWW.BLJLAWYERS.COM Tyler Saunders Jack Robinson and Sons Construction PO Box 5006 Bend, OR 97701 Oct. 20, 2007 Dear Mr. Saunders: This letter is in reply to your request for information to address concerns recorded during a hearing for your planned rock pit near Millican, Oregon. I would like to respond to the following concerns from the record that you gave me: " ...the subject property is located on or near flight paths between the lek and nearby nesting sites, and ... noise and dust from the mine may disrupt sage grouse flight patterns." (Attachment 1, lines 1,2 and 3.) Basis for this concern was a map known as "Fig. 12. Sage Grouse Movement Patterns identified through radio marked bird locations, Prineville District, BLM, 1991 to 1993." (Attachment 2.) "Petitioners also cite to testimony that sage grouse are highly sensitive to disturbance." (Attachment 3, lines 6 and 7.) "If we understand petitioners' argument correctly, they dispute the county unexplained finding that the SBM zone is sufficient to protect the leks sites." (Attachment 3, lines 13- 15.) Regarding disruption of flight paths. I think it should be explained that the map schematically indicates records of telemetry locations, not flight paths, even though the arrows on the map certainly would suggest direct movements or flights, and so some confusion is understandable. For example, one arrow shows that one bird was located at the lek area near Horse Ridge and then was located also at the Rodman Rim area on the north side of Highway 20. The schematic arrow between these two locations runs through the planned rock pit area, and so it is erroneously concluded that the bird flew directly through the planned rock pit area, but I don't think this conclusion is supported by the map data. The map indicates only that the bird was located both at the lek and at Rodman Rim, but the bird may have actually taken a different flight path, or moved between the two locations via a combination of flights. The basic premise that female sage grouse move between nest areas and leks during the nesting season is a known fact of sage grouse behavior (Marshall et.al. eds. 2003,) and I believe that this schematic map is meant to show this known grouse behavior, as well as other information, not to indicate flight paths. Regarding testimony that sage grouse are highly sensitive to disturbance. This is somewhat vague testimony, since there is no definition given of what highly sensitive means in the context of the planned rock pit. In our consultation with U. S. Bureau of Land Management (BLM) and Oregon Department of Fish and Wildlife (ODFW) biologists before you submitted your application, concerns about noise and other activities from the rock pit during the nesting season were addressed to their satisfaction, I believe. I think that if these biologists had concerns that were not addressed adequately, they would have submitted their concerns to us before the application, or during the application process. Regarding the disputed County's finding that the SBM zone is sufficient to protect the lek sites. While this probably is a concern for the County to respond to, I would offer that the SBM zone protections were formulated during a long public process that included hearings and consultation with BLM and ODFW biologists among many others. At the time of your application, I was not aware of study findings that would indicate that the SBM zone protections were not sufficient, nor did BLM or ODFW biologists indicate to us that they were concerned that the SBM zone was not sufficient. In summary, I would offer that I believe you and others in your company have shown your determination to address concerns about sage grouse in the area of your planned rock pit. As mentioned earlier, you and others in your company consulted with BLM and ODFW biologists before applying for the rock pit to discover any concerns from them, and you worked to address those concerns through discussions with them. You commissioned a survey of habitat in the rock pit area to discover any strut sites or evidence of nesting sites at the request of ODFW biologists. You also offered to reduce road disturbance in the area of the lek by closing a private road not connected with the rock pit operation, to address concerns by a BLM biologist. You said your company is committed to taking an active part in sage grouse management in the area, and I know that since your application was submitted, you contributed materials for a new water guzzler on Pine Mountain. I hope this letter helps to clarify the knowledge we have of sage grouse behavior as it applies to your planned rock pit and the comments shown on the record you gave me, and of your actions taken to address concerns by biologists, and of your commitment to help with sage grouse management in the future in the Millican Valley. Sincerely, (Lit:PK Gary Hostick, Certified Wildlife Biologist PO Box 1906 Sisters, OR 97759 Literature Cited Barnett, Jenny. Greater Sage Grouse. Pp. 177-180 in Birds of Oregon: A general Reference. D.B. Marshall, M.G. Hunter, and A.L. Contreras, Eds. Oregon State University Press, Corvallis, OR. Attachments 1, 2, and 3. �'lf) COUNTY PLANNING; ZONING; HOUSING CODES 215.296 governing body or its designate in any area zoned for exclusive farm use subject to ORS 215.296, the use of existing railroad loading and unloading facilities authorized to unload materials regulated under ORS chapter 459 and the expansion of such facilities by no greater than 30 percent, for the unloading of materials regulated under ORS chapter 466 for transfer to a facility permitted to dispose of materials regulated under ORS chapter 466, may be allowed. (2) A permit for a use allowed under subsection (1) of this section must be applied for no later than December 31, 1993. (3) A county shall allow an application for a permit authorizing the use allowed un- der this section prior to the adoption of amendments to the comprehensive plan or land use regulations. [1993 c.530 §1] 215.295 [Formerly 215.205; repealed by 1911 c.13 §1] 215.296 Standards for approval of cer- tain uses in exclusive farm use zones; violation of standards; complaint; penal- ties; exceptions to standards. (1) A use al- lowed under ORS 215.213 (2) or 215.283 (2) may be approved only where the local gov- erning body or its designee finds that the use will not: (a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or (b) Significantly increase the cost of ac- cepted farm or forest practices on surround- ing lands devoted to farm or forest use. (2) An applicant for a use allowed under ORS 215.213 (2) or 215.283 (2) may demon- strate that the standards for approval set forth in subsection (1) of this section will be satisfied through the imposition of condi- tions. Any conditions so imposed shall be clear and objective. (3) A person engaged in farm or forest practices on lands devoted to farm or forest use may file a complaint with the local gov- erning body or its designee alleging: (a) That a condition imposed pursuant to subsection (2) of this section has been vio- lated; (b) That the violation has: (A) Forced a significant change in ac- cepted farm or forest practices on surround- ing lands devoted to farm or forest use; or (B) Significantly increased the cost of accepted farm or forest practices on sur- rounding lands devoted to farm or forest use; and (c) That the complainant is adversely af- fected by the violation. Title 20 (4) Upon receipt of a complaint filed un- der this section or ORS 215.218, the local governing body or its designee shall: (a) Forward the complaint to the opera- tor of the use; (b) Review the complaint in the manner set forth in ORS 215.402 to 215.438; and (c) Determine whether the allegations made in a complaint filed under this section or ORS 215.218 are true. (5) Upon a determination that tip, alle- gations made in a complaint are true, the local governing body or its designe(_ at a minimum shall notify the violator that a vio- lation has occurred, direct the violator to correct the conditions that led to tl e vio- lation within a specified time periol and warn the violator against the commission of further violations. (6) If the conditions that led to a vio- lation are not corrected within the time pe- riod specified pursuant to subsection (5) of this section, or if there is a determination pursuant to subsection (4) of this section fol- lowing the receipt of a second complaint that a further violation has occurred, thf local governing body or its designee at a minimum shall assess a fine against the violator (7) If the conditions that led to a vio- lation are not corrected within 30 day after the imposition of a fine pursuant to subsec- tion (6) of this section, or if there is a deter- mination pursuant to subsection (4) of this section following the receipt of a third or subsequent complaint that a further violation has occurred, the local governing bod or its designee shall at a minimum order tie sus- pension of the use until the violator corrects the conditions that led to the violation. (8) If a use allowed under ORS 215.213 (2) or 215.283 (2) is initiated without prior ap- proval pursuant to subsection (I.) of this sec- tion, the local governing body or its designee at a minimum shall notify the user that prior approval is required, direct the user to apply for approval within 21 days and warn the user against the commission of further vio- lations. If the user does not apply for ap- proval within 21 days, the local governing body or its designee shall order the suspen- sion of the use until the user applies for and receives approval. If there is a determination pursuant to subsection (4) of this section fol- lowing the receipt of a complaint that a fur- ther violation occurred after approv, l was granted, the violation shall be deemed a sec- ond violation and the local governing body or its designee at a minimum shall a, sess a fine against the violator. (9)(a) The standards set forth in ) ubsec- tion (1) of this section do not apply t I farm or forest uses conducted within: Page 119 (2005 E lition) 12 11 s.. v S 'v V 6 5 11 / 6 II 11 II II I II II V A riAargil 9: 6 7 \\ B)rlow` CaVISS v 18 19 � a c YOTE WELL "T. 9e 31 NF i rfir /1 /1 )(/' / NF M 227 v 4060 6 0 ti PENCEF 7 v 1/ /""' NF i ;v II H CAMP i• (San 11 1 —7 //.-7 / / !/ / // 1/ /� // ✓✓✓ „I/1 . 2011:'.,' l/ ✓. 21 / /r ,_)•,..."=.11 J , 11 _. a \\ HORSE RIDGE ALLOTMENT 1/ '�� r rrAri r.. r_ TLV) IUen= AAMM1 &fALile,` • -° 1 • TECHNICAL MEMORANDUM Date: January 4, 2008 To: Ron Robinson, 4 R Equipment, LLC CC: Robert S. Lovlien, Bryant, Lovlien, & Jarvis, PC From: William C. B. Gates, Ph.D., P.E., C.E.G., Kleinfelder West, Inc. Subject: Analysis of Vibrations from Blasting Operations at the Proposed Spencer Well Pit Deschutes County, Oregon Project Number. 89665-A01 KLEINFELDER Geotechnical Engineering Materials Testing & Inspection Environmental Science & Engineering Water Resources Earthquake Engineering Air Quality R.Scott Wallace, R.G., Kleinfelder West, Inc. MORES: 1/31/ zoo, EXECUTIVE SUMMARY Kleinfelder, Inc has completed a review of the proposed blasting plan scenario for the Spencer Well Pit/Quarry to include the following references: 1. Report by Siemens & Associates, June 16, 2004, Subject: Results of Construction Aggregate Resource Investigation; 2. Report by Apollo Geophysics Corporation, April 13, 2005, Proposed Spencer Well Mine Vibration Intensity Study, Millican, OR; L:\2007\Projects\89665(A01)1BEN8L002 Page 1 of 15 62915 NE 18a' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLE1NFELDER 3. Final Opinion and Order, Land Use Board of Appeals of the State of Oregon (LUBA) No. 2007-013, Remanded October 3, 2007. 4. Discussions with 4-R Equipment, LLC, Mr. R. Robinson. The purpose of our review was to assess potential blasting vibrations and impact in response to structures and historical artifacts remanded LUBA (Reference 3). This technical memo discusses possible impacts attendant to vibrations based on projected blasting operations. Based on our analysis and that of Apollo Geophysics Corporation, the proposed blastingplan scenario and the proposed operations for Spencer Well Pit, damaging vibrations generated from blasting is unlikely to impact structures on the Walker Property, Coyote Well, Pictographs, Best Shelter and the Evans Well Ranch. Vibrations, reported as peak particle velocity (PPV) at full build out are expected to be less than 0.2 inches per second at the Coyote Well. Similarly, vibration displacement of rock as a result of blasting vibrations is expected to be less than 0.005 inches at the Coyote Well. Ground vibrations are expected to be within safe limits established by Office of Surface Mining (Siskind, et. al., 1980). Monitoring points at key areas around the perimeter of the mine site are recommended to monitor vibrations during blasting operations PURPOSE The purpose of our review was to assess potential blasting vibrations and impact to structures and historical artifacts remanded by LUBA (Reference 3). BACKGROUND The proposed mining operation at Spencer Well Pit will utilize drill and blasting methods to mine the basaltic bedrock. The geology of the pit and assessment of the basalt rock as aggregate was completed by Siemens & Associates on June 16, 2004. In April 2005, Apollo Geophysics Corporation (Apollo) reviewed the proposed blasting plan and resulting ground vibrations from test blasts. As part of their investigation, Apollo conducted test blasts and created a PPV verses scaled distance chart to illustrate the average PPV values expected, and upper bound values predicted for the proposed blasting operations. In October 2007, after review of the petition for operation of Spenser Well Pit, LUBA required further investigation of the potential impact of blasting vibrations on the following critical areas: Walker Property, Coyote Well, Pictographs site, Best Shelter and the Evans Well Ranch. L:\20071Projects\89665(A01)\BEN8L002 Page 2 of 15 62915 NE 18th Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER PROJECT DESCRIPTION The proposed Spencer Well Pit project plans to mine about 65 acres of basaltic rock. Mining will be accomplished in two phases. Associated with the development of the pit will be construction of an aggregate processing facility that will include crushing and screening components. Blasting of rock is anticipated to occur at most twice a year to facilitate quarry operations. FINDINGS AND DISCUSSION Blasting and Vibrations There are several excellent references in the literature that address vibrations resulting from blasting. The references include: ISEE, 1998; Dowding, 2000; Oriard, 2002; Konya, 2003; Wyllie and Mah, 2004 (refer to additional References in the back of this memorandum). When detonation occurs, the explosion from the blast produces a high temperature and high-pressure gas. This gas pressure, referred to as detonation pressure, crushes the rock surrounding the borehole. The detonation pressure rapidly dissipates, consuming approximately ten to fifteen percent of the available energy in the explosive. The remaining energy from the shot produces a second, lower pressure gas referred to as explosion pressure. The explosion pressure is responsible for over 85 percent of the work done to the rock. The explosion pressure expands and opens the fractures in the rock developed by the detonation pressure and pushes the fractured rockmass to the free face of the cut. As the blasted rock separates from bedrock, the gas pressure dissipates and no further fracturing of the rock from blasting occurs. However, energy derived from the blast continues toward the free face of the rock cut. The entire blasting process transpires inside a few hundredths of a second after detonation and takes place within a 20 foot radius of the shot hole (ISEE, 1998). The volume of rock displaced typically resembles an inverted cone, with the depth of the shot hole equal to the height and radius of the base of the cone. Beyond the cone- shaped volume of rock, no permanent deformation of the rock occurs. However, elastic waves are generated. Ground vibrations originating from the blast result from detonation pressure acting on the rock surrounding the shot hole combined with explosion gas pressure moving the rock fragments away from intact rock to the open rock cut. The force generated from the blast against the intact rock causes the rockmass to vibrate like a bell. When the intact rock vibrates it transmits vibrations to the materials around it. The transmission of this vibration is referred to as propagation. Propagation of the elastic ground vibrations radiate in all directions from the blast. Elastic vibrations do not deform the material in which they propagate. That is, after vibration the material retums to its original position without deformation. Outside the blasting area, ground motion rarely exceeds the thickness of a sheet of paper (ISEE, 1998). In general, these motions are so small it takes an instrument like a seismograph to measure the vibrations. As the ground vibrations propagate further L:\2007\Projects\89665(A01)\BEN8L002 Page 3 of 15 62915 NE 18'Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER from the blast, the energy dissipates. When the energy dissipates, the ground vibration amplitude also decreases until eventually the vibration falls below perceptible levels. The rate at which the ground vibration dissipates as it propagates away from the source is referred to as seismic attenuation. Ground vibrations from typical blasting in most geologic settings attenuate to about 1/3 the initial value for each doubling of distance from the source. The rate of attenuation is site specific and is a function of site conditions and geology. Seismic attenuation occurs geometrically, that is, ground vibration amplitude decreases very quickly near the source but very slowly away from the source. As a result nearly all of the ground vibration energy is dissipated near the shot within the quarry, but small amounts of energy remaining may be perceptible as vibrations some distance from the shot. Scientific instruments such as seismographs are typically used to monitor blasting operations. The instruments measure ground displacement (how far rock particles moves from rest), velocity (the speed of movement of rock particles) and acceleration (change in velocity of rock particles). These parameters are related by the frequency of vibrations, which is a measure of how many times the ground will vibrate through an original position in one second. Frequency is reported in cycles per second or hertz (Hz). The character of the frequency during blasting operations is a function of geology and blast design. The frequency ranges at which vibrations are perceptible from blasting operations at Spencer Well Pit are estimated to range from 10 to 100 Hz (ISEE, 1998). Apollo reported 30 to 40 Hz from test blasts at the proposed pit site. There are standards, which limit the maximum amount of vibrations that can occur at a point or particle on the ground surface (1SEE, 1998). The limit is referred to as the peak particle velocity (PPV). Scientists, through research of the Propagation Law (Konya, 2003), have developed a method to estimate and compare ground vibrations from a blast during the planning and design stage to stay within prescribed vibration limits. The amplitude of ground vibrations is established by the quantity of energy present to create the vibration and the distance the vibrations have propagated. The Square Root Scaled Distance (Scaled Distance, Sd) formula relates ground vibration amplitude to the explosive charge weight per delay and the distance from the blast. The typical way of combining distance and explosive energy is to divide the true distance by the square root of the maximum explosive charge per weight delay to obtain a normalized or scaled distance (ISEE, 1998). The scaled distance requires the explosive charge to decrease with distance from the shot to maintain ground vibration PPV limits. Sd = Equation 1 Where: Sd= Scaled distance D = True distance from shot to specific location W = Maximum explosive charge weight per delay Ground vibrations will decay with distance from the shot. In general, ground vibrations from blasting in most geologic settings decay or attenuate to approximately 1/3 their former value L:120071Projects189665(A01)1BEN8L002 Page 4 of 15 62915 NE 18th Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER for each doubling of distance (ISEE, 1998). To predict ground vibrations in peak particle velocity scientists have developed Equation 2 as follows: (ISEE, 1998; Dowding, 2000; Oriard, 2002; Konya, 2003; Wyllie and Mah, 2004): (\-1.6 PPV = H\D/ Equation 2 Where: D = True distance from shot to specific location or structure W= Maximum explosive charge weight per delay H = Particle velocity intercept, developed from conditions and test blasting at the site. Average values are around 242. However it is best to develop the particle velocity intercept from monitoring results of actual test blasting. We will use H - 373, based on the graph developed by Apollo (2005). Note: The value D/BIW within the brackets is the scaled distance (Sd). Using the Scale Distance formula, one can expect the same vibration intensity (PPV) of two different blasts even though frequency and duration characteristics of the blast will be different (ISEE, 1998; Oriard, 2002). For example, let's evaluate the scaled distance of a blast containing a maximum charge weight of 10,000 lbs explosives per delay at a distance of 2000 feet from the shot would be 2000/10,000 = 20. Similarly, another shot containing a maximum charge weight of 25 lbs per delay at a distance of 100 feet would be 100/125 = 20. Both scaled distances are the same at 20. At that scaled distance we should expect the PPV to be the same or fall within a similar range. Indeed, we see that this is true where PPV = 242(2011.6= 2 in/sec. However, each shot will exhibit different frequencies and durations. Many regulatory agencies require a scaled distance of 60 for a greater margin of safety with respect to vibration intensity (PPV) (Konya, 2003). If distances are fixed between the shot and structure or area of concern, then the maximum charge weight of explosives per delay must be modified in the shot design for the shot to meet the regulatory scaled distance requirement. For instance if we have a structure that is 100 feet from the shot and the regulated scaled distance is 60, the maximum charge weight of explosives per delay would be about 2.75 lbs of explosive; that is (100/60) 2 = 2.75 lbs. Similarly, for a structure 1000 feet from the shot, the maximum charge weight of explosives per delay would be about 275 lbs of explosive; that is (1000/60) 2 275 lbs. To minimize ground vibrations and still operate efficiently, the quarry operator will design delayed blasts that will detonate at least 8 milliseconds (ms) apart rather than a simultaneous detonation of all charges. Research has demonstrated that a delayed shot will minimize ground vibrations and be more effective at fracturing and moving the rockmass in a controlled manner. L:\2007\Projects\89665(A01)\BEN8L002 Page 5 of 15 62915 NE 18'" Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER Office of Surface Mining (OSM) Regulations The federal regulation, which controls the blasting effects of mining operations, is the Office of Surface Mining (OSM) (Oriard, 2002). The OSM have developed vibration limits recognizing frequency dependence for vibration associated with distance (Konya, 2003; Oriard, 2002). See Table 1. Table 1 combines the effects of distance and frequency. At short distances, high frequency vibration predominates. At longer distances, high frequency vibration attenuates or dies out and low frequency vibration predominates. Buildings have a low frequency response characteristic and will resonate and may sustain damage. Therefore, at large distances a lower peak particle velocity, 0.75 in/sec. and larger scaled distance, Sd equal to 65 are mandated (Konya, 2003). At shorter distances, a higher peak particle velocity, 1.25 in/sec. and a smaller scaled distance of Sd equal to 50 are appropriate. Mine operators are allowed a choice among three options to assess vibration affects attendant to blasting. OSM Option 1: The quarry operator may elect to conform to PPV without reference to vibration frequency. As displayed in Table 1, for 0-300 ft, the limit is 1.25 in/sec.; for 301- 5000 ft the limit is 1.00 in/sec.; and for distances over 5000 ft, the limit is 0.75 in/sec. Conformance must be observed by monitoring the blast with a seismograph (Oriard, 2002). OSM Option 2: The quarry operator may elect to design the blasts in accordance with prescribed scaled distances listed on Table 1. In this option the operator is not required to monitor the blasting with a seismograph (Oriard, 2002). This option is more conservative then Option 1 and restricts PPV to lower intensities. The scaled distances may be used to estimate the maximum charge weight of explosive per 8 ms delay by applying a scaled distance. For instance let's apply a scaled distance of 55 to a distance of 1000 ft; 1000/55 = 18; 182:--: 331 Ib. Therefore the allowable maximum charge weight of explosive per 8 ms delay is about 331 Ib to stay within the prescribed regulation. OSM Option 3: The OSM prepared an alternative limit in graphical form displayed on Figure - 1. Figure -1 displays displacement and velocity values along with frequency ranges over which each applies specified by the OSM. The curve in Figure -1 demonstrates that above 40 Hz, a constant PPV of 2 in/sec. is the maximum safe value. Below 40 Hz, the maximum PPV decreases at a rate equal to a constant peak displacement of 0.008 inches. For intermediate frequencies of 4 to 12 Hz, a 0.5 in/sec. maximum PPV is the accepted threshold level to preclude damage to plaster in older houses and 0.75 in/sec. is the threshold level to preclude damage to drywall in newer houses. An ultimate maximum displacement of 0.03 inches is recommended for frequencies below 4 Hz. This graphical approach may be selected as an altemate to Options 1 or 2. For example, if a shot is expected to generate a frequency of 10 Hz, the safe threshold for PPV above which damage could occur may be estimated from the graph. For example, we read first on the x- axis (horizontal) of the graph to 10 Hz. Next trace up the y-axis to the intersection of the curve and read the y-axis intercept 0.5 in/sec. for plaster walls and 0.75 in/sec. for drywall. L:\20071Projects189665(A01)1BEN8L002 Page 6 of 15 62915 NE 18"' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELD[R The Bureau of Mines in RI 8507 (Siskind and others 1980) distinguished frequencies associated with blasting at coalmines, quarries, and construction sites. The Bureau found coalmine blasting produced the lowest frequencies. Quarry blasting falls in the middle range, followed by construction blasting, which produced the highest frequencies (Konya, 2003). Dowding (2000) found that dominant design frequencies in a typical design earthquake fall between 0.2 and 2 Hz. On the other hand, blasting vibrations typically transmit their peak velocity energy between frequencies of 10 and 100 Hz. Estimation of Particle Velocity Based on Site Conditions In April 2005, Apollo reviewed the proposed blasting plan and resulting ground vibrations. As part of their investigation, Apollo conducted test blasts and created a PPV verses scaled distance chart to illustrate the average PPV values and upper bound values predicted for the proposed blasting operations. From the test blasting Apollo developed a set of curves relating the scaled distance (Sd) to PPV. From the graph using various distances and explosive charge weights they were able to estimate PPV at a critical location. From the graph developed by Apollo we have estimated the particle velocity intercept using a curve fitting program. The result is H = 373, which based upon our experience, is reasonable. This value will be used to estimate PPV at the Spencer Well Mine site. Vibration Stability of Rock Slopes and Rock Blocks Concem for quarry blast -induced rock slope stability arises from the observed vibration environment and the presumed similarity of blasting vibrations to earthquake motions. Dowding (2000) conducted research into construction vibrations and blasting and their affect on the stability of rock slopes. He has observed that construction vibrations and blasting display many different responses than earthquake -induced vibrations. Typically, in quarry and construction blasting, the displacements are smaller and the frequencies much higher (by orders of magnitude). The dominant design frequencies in a typical design earthquake fall between 0.2 and 2 Hz. On the other hand, blasting vibrations typically transmit their peak velocity energy between frequencies of 10 and 100 Hz (ISEE, 1998). Dowding (2000) found there is a low frequency for both compression and shear waves (between 1 and 10 Hz), for which maximum shear displacement occurs. For frequencies from 10 Hz to 100 Hz with constant peak particle velocity, relative shear displacements diminish by over two orders of magnitude. What this means is that most of the energy from the blast to displace rock stays within a small circumference of the blast zone; typically within a 20 -ft radius (ISEE, 1998). One can readily compare the difference in wavelengths involved in earthquakes and blasting vibrations. For a sinusoidal wave, the wavelength is equal to the propagation velocity (peak particle velocity, PPV) divided by the Frequency (t). A=PP/.f For example, consider a shear wave propagation or PPV of 5000 ft/sec. An earthquake with a frequency of 1 Hz propagates with a wavelength of 5000 ft; 5000 ft/s / 1 Hz = 5000 ft. In Equation 3 L:12007\Projects\89665(A01)1BEN8L002 Page 7 of 15 62915 NE 18t Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER contrast a 50 -Hz blast with the same PPV propagates with a wavelength of only 100 ft; 5000 ft/s / 50 Hz = 100 ft. Dramatic, blast -induced rock slope failures of large blocks are rarely observed even in open pit mining (Dowding, 2000). Moreover, when instability occurs, it normally involves small- scale or bench instability. To evaluate potential block movement from blast -induced vibrations, Dowding (2000) applies a rigid block model. That is, a rigid block sitting on bedrock that slides in response to vibration motion within the bedrock. He assumes the wavelength of excitation motion is significantly larger than the unstable block or slope. The length of a block that can be coherently excited is about one -eight of the wavelength. Coherently means in this case displaced or accelerated in the same direction at the same time. The lack of blast -induced instability typically is the result of the lack of coherency of blast -induced motions of the large blocks. The maximum conditions for coherency (displacement) of a rock block may be estimated as follows: Coherency =1 / PPV \ Equation 4 4 f Where: 2 % = ratio of base of rock (b) / wavelength (A) PPV = peak particle velocity f = frequency in Hz For example, a 10 Hz quarry blast with a propagation velocity of 2 in/sec. observed at a point some distance from the blast could coherently excite or displace a block at that site that is approximately 0.05 inches in length. What this suggests is that the blast could possibly displace a small grain of rock that is less than 0.05 inches long. Rock pebbles larger than 0.05 inches should not be impacted by the blast. Well Response to Ground Vibration Concem for damage to wells in response to ground vibrations from blasting prompted the U.S. Bureau of Mines to sponsor a study of the responses of operating wells to nearby surface coal mine blasting (Dowding, 2000). The well studies involved pumping from the wells before and after blasting in an adjacent mine to establish changes in well capacity and water quality. One experiment with a well penetrating a sandstone aquifer displayed no change in well capacity after blasts induced the PPV at the surface of 3.34 in/sec. In addition, there was no apparent change in water level after the PPV reached 5.54 in/sec. Although vibrations from blasting have been frequently blamed for problems that occur in a well, the U.S. Bureau of Mines concluded that blasting has little to no effect on wells. The principal effect that blasting may have on close -proximity water wells is temporary turbidly that quickly passes. Moreover, a PPV below 2 in/sec. will not cause damage to a well (Konya, 2003). L:\2007\Projects\89665(A01)\BEN8L002 Page 8 of 15 62915 NE 18th Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER General Blasting Plan A detailed blasting design for the Spencer Well Pit has not been developed because it is premature. However, based on conversations with Mr. Robinson (Reference 4), the following details will be included in their general blasting design. Blasting will be primarily quarry production blasting using initial sinking cuts to develop a free face followed by side hill quarry blasting. Typical blast hole diameters will be 3.5 inches drilled on 7 ft x 7 ft pattems. Maximum blasthole depths will be about 48 feet with stemming backfill of about 8 to 10 feet. Benches will be as high as 48 feet. The primary bulk explosive will be ANFO with a specific gravity of about 0.85 and will be boosted with dynamite. The explosive loading density for each blast hole will be about 3.75 Ib/ft. The powder factor (pounds of explosive per cubic yard of rock) will range between 1.67 Ib/yd3 for a sinking shot to about 1.1 lb/yd3 for production. Charge weights of explosives will range from 100 lbs to about 150 Ib per 8 MS delay with an OSM scaled distance (Sd) of 55. For this evaluation we will assume a charge weight of 150 Ib. Timing between shot holes will be 17 MS and between rows 25 MS. Controlled blasting using presplitting or cushion blasts are not presently planned. Projected Vibration Levels and Displacement for Phase 1 and 2 Blasting For the evaluation of the vibration levels from the propose Spencer Well Pit, we will assume a maximum charge weight of 150 Ib of explosives per 8 MS delay. In addition, to estimate PPV we will use particle velocity intercept of 373 developed from conditions and test blasting at the site. For all critical locations, we have assumed a worst-case for blasting frequency of 10 Hz, the low end of expected blasting frequencies for quarry blasting operations (ISEE, 1998; Dowding, 2000; Oriard, 2002). In addition, we have assumed that the ratio of the base of the rock block (b) to the wavelength (A) is'/ for maximum displacement; this is a conservative value or worst-case condition (Dowding, 2000). Estimated peak particle velocities and displacement from vibrations related to blasting during Phases 1 a and lb are tabulated on tables 2 and 3. Phase 2 will be in the same vicinity as Phase 1 a and Phase 1 b. The following is a discussion of the critical areas sited in the LUBA Final Opinion and Order (Reference 3). Walker Ranch Initially during Phase la blasting, the Walker Ranch will be about 5431 feet from the proposed Spencer Well pit. An estimated PPV of about 0.02 in/sec. might occur during a shot in the vicinity of the Walker Ranch. Similarly during Phase 1 b, the blasting will be closer to the Walker Ranch (about 3469 ft) and the expected PPV will be about 0.05 in/sec. In addition, displacement of rocks as a result of vibrations induced by blasting for Phase la would be less than 0.0005 inches and for Phase 1 b less than 0.0011 inches. Coyote Well In the LUBA document (Reference 3), Coyote Well is reported to be about 1350 feet from the proposed Spencer Wells Pit. However, in reality the distance from the pit during Phase 1a is about 4559 feet and during Phase 1 b will be about 2500 feet. Even when L:120071Projects\89665(A01)\BEN8L002 Page 9 of 15 62915 NE 18th Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER conservatively assuming the distance is 1350 feet to the Coyote Well, an estimated PPV of about 0.20 in/sec. might occur. In addition, under this scenario displacement of rocks or lining in the well as a result of vibrations induced by blasting for both phases would be Tess than 0.005 inches, which in our experience is not sufficient to cause damage resulting from rock displacement. Pictographs Site Initially during Phase la, the Pictographs Site will be about 5224 feet from the proposed Spencer Well pit. An estimated PPV of about 0.02 in/sec. might occur during a shot in the vicinity of the Walker Ranch. Similarly during Phase 1 b, the blasting will be closer to the Pictograph Site (about 3044 ft) and the expected PPV will be about 0.06 in/sec. In addition, displacement of rocks as a result of vibrations induced by blasting for Phase la would be less than 0.0006 inches and less than 0.001 inches for Phase 1 b. Best Shelter In the LUBA, the Best Shelter site is reported to be about 1775 feet from the proposed Spencer Wells Pit. However, in reality the distance from the pit during Phase la is about 3733 feet and during Phase 1 b will be about 1453 feet. Assuming a worst case scenario with a distance of 1453 feet to the Best Shelter Site, an estimated PPV of about 0.18 in/sec. might occur. In addition, displacement of rocks as a result of vibrations induced by blasting for both phases would be Tess than 0.005 inches. Evans Well Ranch Initially during Phase 1a, the Evans Well Ranch will be about 21120 feet from the proposed Spencer Well pit. An estimated PPV of about 0.003 in/sec. might occur during a shot in the vicinity of the Evans Well Ranch. During Phase 1 b, the blasting will be farther away from Evans Well Ranch (23802 feet) and the expected PPV will be about 0.002 in/sec. In addition, displacement of rocks as a result of vibrations induced by blasting for Phase la would be Tess than 0.0001 inches and for Phase 1 b Tess than 0.0001 inches. Discussion of Vibrations and Displacement The highest estimated vibrations from blasting may occur in the vicinity of the Coyote Well at about 0.2 in/sec. According to Konya (2003) a PPV of about 0.3 in/sec. would be similar to vibrations caused from a nearby train or traffic. Similarly a PPV of about 0.5 in/sec would be similar to someone pounding nails and causing loose objects to possibly rattle. Moreover, PPV below 2 in/sec. will not cause damage to a well (Konya, 2003). The potential vibrations at all sites appear to be within acceptable limits (Figure — 1). Frequencies from blasting will be higher than 10 Hz and will probably be in the range of 30 to 40 Hz. Damage occurs to plaster and the like at frequencies lower than 10 Hz when the PPV is at lest 0.5 in/sec. Based on Figure 1, no damage is expected to occur on structures of interest or Pictographs referenced by LUBA as a result of blasting at the Spencer Well Pit site. L:\2007\Projects\89665(A01)1BEN8L002 Page 10 of 15 62915 NE 18"' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER Coherent excitability from blasting induced vibrations to cause displacement of rock is below the lower threshold of influence for all sites. Rock displacement induced from blasting vibrations cannot occur unless vibrations exceed this lower limit and are greater than approximately 7 in/sec. According to Konya (2003) major damage to structures may occur when the PPV exceed 7.6 in/sec. Flyrock Flyrock is rock ejected from the blast site as a result of generally poor blasting design, poor operations, or geologic conditions. Wyllie and Mah, (2004) list common causes of fly rock. These include the following: 1. In adequate front row burden 2. Shot hole misalignment resulting in concentration of explosives 3. Weak seams and joints that vent gas to the rock face 4. Shot holes loaded to the bench surface 5. Shot holes with no stemming 6. Blocked shot holes loaded with fixed weight of explosives or number of cartridges Burden is the thickness of rock or soil between the shot hole and the free face. Burden will act to contain the explosive gas of the blast. If the burden is inadequate, flyrock may move away from the free face during the shot. Stemming of the shot hole with crushed rock helps to contain the explosive gases, if the hole is inadequate or not stemmed, flyrock may rifle from the shot hole. If the ratio of the shot hole depth to the burden is less than two, flyrock may occur. According to Mr. Robinson, the typical blasting design will include seven (7) feet of burden in the drilling patterns depending on localized conditions. He further specified at least eight feet of stemming material for the shot holes. In addition, the ratio of depth of shot hole to burden is at least five (5) and in most cases greater than six (6). These specifications are with in limits (Koyna, 2003) and flyrock is not anticipated based on the preliminary design provided by Mr. Robinson. In general, complete control of flyrock is difficult, even with a good blast design including recommended stemming and burden dimensions. In areas where there is a possibility of damage to structures, blasting mats should be employed to control flyrock. Blasting mats may consist of rubber tires, strips of conveyor belts, or similar material that have been chained together. Where there is a possibility of the blast displacing the matt, it can be covered with rock and/or anchored locally to bedrock. L:\20071Projects\89665(A01)\BEN8L002 Page 11 of 15 62915 NE 18'" Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER REFERENCES Dowding, C.H., 2000, Vibration Stability of Rock Slopes, in Construction Vibrations, pp. 285- 298. ISEE, 1998, Vibration and Airblast, Blasters' Handbook, 17th Edition, International Society of Explosives Engineers, pp. 591-634. Konya, C.J., 2003, Vibration and Seismic Waves in Rock Blasting and Overbreak Control, 2nd Edition, National Highway Institute, Federal Highway Administration, pp. 226-287. Oregon Land Use Board of Appeals (LUBA), Remanded October 3, 2007, Final Opinion and Order No. 2007-013. Oriard, L.L., 2002, Ground Vibrations and Air Waves from Blasting, in Explosives Engineering, Construction Vibrations and Geotechnologv, International Society of Explosives Engineers, pp. 181-234. Siskind, D.E., Stagg, M.S., Kopp, J.W. & Dowding, C.H. 1980, Structure Response and Damage Produced by Ground Vibration from Surface Mine Blasting, U.S. Bureau of Mines, Washington, D.C., Report of Investigation 8507. Wyllie, Duncan, C., Mah, C.W., 2004, Rock Slope Engineering: Civil and Mining, 4th Edition, Spon Press, pp. 245-275. L:\2007\Projects\89665(A01)\BEN8L002 Page 12 of 15 62915 NE 18t Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER Table 1: Office of Surface Mining, Required Ground Vibration Limits Distance from the Blasting Site (feet) Maximum Allowable Peak Particle Velocity (inches/second) Scaled Distance Factor to be applied without Seismic Monitoring 0 to 300 1.25 50 301 to 5000 1.00 55 5001 and beyond 0.75 65 Figure 1: U.S. Bureau of Mines Vibration Criteria. Maximum Safe Values for Peak Particle Velocity 10 1 , Jos ible b mage hEe old z o i-ths 1 O. 5 in/ ec l D i a -j 0.0 in sec i sfer o u °" 0.1 No Dr_ age MEI MI 0.01 1 10 40 100 Frequency, Hz L:\20071Projects\89665(A01)\BEN8L002 Page 13 of 15 Copyright 2008 Kleinfelder 62915 NE 186' Street Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER Table 2: Phase la, Estimated Peak Particle Velocities and Displacement Blast Site Critical Site Charge weight Ib Distance Ft PPV (1) in/sec. Coherency (2) (Displacement) in Quarry Walker Ranch 150 5431 0.0217 0.0005 Quarry Coyote Well 150 1350* 0.2014 0.0050 4559 0.0287 0.0007 Quarry Pictographs 150 5224 0.0231 0.0006 Quarry Best Shelter 150 1775* 0.1300 0.0032 3733 0.0396 0.0010 QuarryEvans Well Ranch 150 21120 0.0025 0.0001 1 PPV = 373 r 6IVW 2 Coherency=1rPPV' — 4, 10 y * From LUBA L:120071Projects\89665(A01)\BEN8L002 Page 14 of 15 62915 NE 18"' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER Table 3: Phase 1 b, Estimated Peak Particle Velocities and Displacement Blast Site Critical Site Charge weight Ib Distanc e Ft PPV (1) in/sec. Coherency (2) (Displacement) in Quarry Walker Ranch 150 3469 0.0445 0.0011 QuarryCoyote Well 150 1350* 0.2014 0.0050 2500 0.0751 0.0019 Quarry Picthgrap s 150 3044 0.0548 0.0014 Quarry Best Shelter 150 1775* 0.1300 0.0032 1453 0.1790 0.0045 Quarry Evans Well Ranch 150 23082 0.0021 0.0001 1 PPV = 373 Coherency= 1 CPPV 2 4 10 * From LLIBA L:120071Projects189665(A01)1BEN8L002 Page 15 of 15 62915 NE 18h Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 TECHNICAL MEMORANDUM Date: January 14, 2008 To: Ron Robinson, 4 R Equipment, LLC From: KLEINFELDER Geotechnical Engineering Materials Testing & Inspection Environmental Science & Engineerinc Water Resources Earthquake Engineering Air Quality w a ,a William C. B. Gates, Ph.D., P.E., C.E.G., R. Scott Wallace, R.G., Kleinfelder West, Inc. Kleinfelder West, Inc. CC: Robert S. Lovlien, Bryant, Lovlien, & Jarvis, PC Subject: Shallow Perched Aquifer Evaluation Proposed Spencer Well Pit Deschutes County, Oregon Project Number. 89665-A01 EXECUTIVE SUMMARY In the Final Opinion and Order (No. 2007-013) remanded on October 3, 2007, by the State of Oregon Land Use Board of Appeals (LUBA), the Ninth Assignment of Error required an hydrogeologic evaluation in the vicinity of the Spencer Well Pit site to assess what impact, if any, the proposed miming pit would have on nearby shallow perched aquifers. Kleinfelder has completed a hydrogeologic review of the northwestern portion of the Millican basin and proposed Spencer Well Pit/Quarry area including the following references: L:\2008\Projects\89665(A01)\BEN8L004.doc Page 1 of 4 62915 NE 18e Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER 1. Report by Siemens & Associates, June 16, 2004, Subject: Results of Construction Aggregate Resource Investigation; 2. Final Opinion and Order, Land Use Board of Appeals of the State of Oregon (LUBA) No. 2007-013, Remanded October 3, 2007; 3. Geology and Mineral Resources of Deschutes County, Oregon, 1976, Oregon Department of Geology and Mineral Industries; 4. Millican, Oregon Quadrangle Map, 1967, 7 1/2 -minute series, U.S. Geological Survey; 5. Discussions with 4-R Equipment, LLC, Mr. R. Robinson. Based on our hydrogeologic evaluation, the proposed Spencer Well Pit appears unlikely to adversely impact water quality or water levels within shallow, perched aquifers in hydrogeologic continuity with Coyote Well or the intermittent drainage (Dry River) which serves an outlet for surface water runoff within the Millican Valley. BACKGROUND The proposed Spencer Well Pit site is located in Deschutes County, Oregon and occupies approximately 385 acres within Section 30, Township 19 S., Range 15 E., W.M. We understand the mining operation will utilize drill and blasting methods to mine basaltic bedrock in an "open -pit" style operation. The proposed Spencer Well Pit project plans to mine about 65 acres of basaltic rock to depths of up to 100 feet below ground surface (bgs). (R. Robinson, personal communication, 2008). During Deschutes County public hearings pursuant to land -use classification for the Spencer Well Pit site, testimony was made expressing concem that once the mining pit reached a certain depth, water would be drawn from nearby, shallow, perched aquifers that support the Dry River and hydrologic features such as Coyote WeII (LUBA, 2007). This technical memo discusses possible impacts attendant to excavation of an open pit surface mine on the Spencer Well site. HYDROGEOLOGIC SETTING The geology of the pit site and western Millican basin was characterized by Siemens & Associates on June 16, 2004 (Siemens Report). Subsurface data in the Siemens Report was based upon five diamond core boreholes drilled to depths of 90 feet bgs, 32 air percussion boreholes drilled to depths ranging from 35 to 97 feet bgs, and 30 test pits excavated to depths of approximately 20 feet bgs. During subsurface exploration for the Siemens Report, groundwater (perched or regional) aquifers were not encountered in any of the explorations. In addition, Oregon Water Resource Department water well records for the site and within an approximate one -mile radius (T. 19 S., R. 15 E., Sections 19, 20, 29, 30, 31, and 32 and T. 19 S., R. 14 E., Sections 24, 25, and 36) indicate that groundwater, where L:12008Projects \89665(A01)\BEN8L004.doc Page 2 of 4 62915 NE 18"' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER present, is located within basalt bedrock and permeable intertow zones at depths in excess of 1,250 feet bgs. Because of the presence of fine-grained, partially -cemented Iacustrine (lake derived) and alluvial deposits which blanket the site, near -surface, laterally discontinuous, perched groundwater zones are likely to develop following precipitation events along the north -south trending drainage course that transects the central portion of the site. This surface water collector merges with the "Dry River" drainage along the south side of U.S. Highway 20. Surface water flow is interrupted by U.S. Highway 20, and is directed west-northwest and crosses (via culvert) under the highway approximately 1700 feet southeast of the shallowly - incised, upper section of "Dry Canyon". Similar, perched groundwater zones are also likely to develop on the north side of Highway 20 within lower sections of the Dry River drainage, including the hand dug landmark known as "Coyote Well". Coyote Well is located at the southwestem base of Bear Creek Buttes at an elevation of approximately 4170 feet above sea level. The Bear Creek Buttes form a basalt upland area that rises approximately 500 feet above the elevation of Coyote Well. Seasonal surface water runoff and infiltration from Bear Creek Buttes may also contribute to the perched water zone into which Coyote Well is constructed. CONCLUSIONS The Dry River drainage collects surface water from the Millican Basin and directs it west- northwest toward the basin outlet in Dry Canyon. The proposed Spencer Well Pit footprint is located on the south side of U.S. Highway 20, opposite Coyote Well and the lower section of Dry River. The primary Dry River drainage channel transects the Spencer Well site south of Highway 20, however, based upon preliminary mine operation plans, the channel will not be intercepted or compromised by the proposed pit footprint. The channel will remain connected via a culvert running under Highway 20 to lower sections of the drainage. At its nearest point, the pit would be located approximately 2,500 feet from Coyote Well. Given the laterally discontinuous nature of perched water zones in the Millican basin, it is highly unlikely that Coyote Well is in hydrogeologic continuity with perched water zones located south of Highway 20. Because of access constraints, Kleinfelder personnel did not have an opportunity to observe the physical appearance of water within Coyote Well as part of this evaluation. However, between the proposed Spencer Well Pit site and Coyote Well, sections of the Dry River drainage within sight on the north and south sides of U.S Highway 20, contained no areas of standing water. Based upon our experience with perched water zones in the arid, High Lava Plains region of central Oregon, recharge flow is intermittent and perched water zones typically appear stagnant and may take an extended period of time before perched water infiltrates into deeper subsurface soil/rock materials. This appears to be a likely scenario for the reported presence of water within the Coyote Well. L:\2008\Projects\89665(A01)1BEN8L004.doc Page 3 of 4 62915 NE 18"' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 KLEINFELDER Based on our hydrogeologic evaluation, the proposed Spencer Well Pit appears unlikely to adversely impact water quality or water levels within shallow, perched aquifers in hydrogeologic continuity with Coyote Well or the intermittent drainage (Dry River) which serves an outlet for surface water runoff within the Millican Valley. LIMITATIONS The professional judgments expressed in this report meet the standard of care of our profession; however, no warranty is expressed or implied. CLOSING Kleinfelder appreciates the opportunity to provide our professional consulting services to 4R Equipment, LLC for this project. If question arise, or additional review is required, please contact our Bend office at (541) 382-4707. L:120081Projects189665(A01)1BEN8L004.doc Page 4 of 4 62915 NE 18"' Street Copyright 2008 Kleinfelder Suite 1 Bend, OR 97701 Tel. 541-382-4707 Fax. 541-383-8118 TECHNICAL MEMORANDUM KLEINFELDFR Geotechnical Engineering Materials Testing & Inspection Environmental Science & Engineering Water Resources Earthquake Engineering Air Quality DATE: JANUARY 4, 2008 TO: MR. TYLER SAUNDERS, 4-R EQUIPMENT, LLC FROM: SHANE COCHRAN, KLEINFELDER 5`' R. SCOTT SCOTT WALLACE, RG, KLEINFELDER CC: ROBERT S. LOVLIEN, BRYANT, LOVLIEN, AND JARVIS, PC PROJECT NO: 89665 (A01) SUBJECT: SPENCER WELL MINE SITE ANEMOMETER MONITORING ACTIVITIES SECTION 30, T. 19 S., R. 15 E., W.M. MILLICAN, OR This memorandum summarizes anemometer monitoring activities conducted by Kleinfelder from November 19, 2007 to December 26, 2007 at a proposed aggregate surface mine operation in Millican Valley, Deschutes County, Oregon. The proposed site is located in Section 30, T. 19 S., R. 15 E., W.M., and is south of U.S. Highway 20 and east of Horse Ridge. These anemometer monitoring activities were performed in response to a Final Opinion and Order, Land Use Board of Appeals of the State of Oregon (LUBA), No. 2007- 013, Remanded October 3, 2007. ANEMOMETER DATA COLLECTION On November 19, 2007 Kleinfelder launched a HOBO anemometer with a data logger capable of monitoring and recording wind speed and direction for the proposed site. Anemometer data is manually downloaded on a monthly basis. On December 26, 2007 data was downloaded, reduced, and is illustrated on Figure 1 (attached). Between November 20 and December 26, 2007, 10,362 readings were taken at five minute intervals. Wind speeds ranged from 0.00 to 41.92 mph. Wind directions on an azimuth scale (from 0 to 360 degrees) are illustrated on Figure 1. Figure 1 indicates that 22.9 percent of the time, wind was blowing from the south-southwest to the north-northeast (0-45 degree bar on Figure 1). In general, 62.6 percent of the time the wind was blowing from a westerly direction to the east and 37.4 percent of the time the wind was blowing from the east to the west. As illustrated in Figure 1, a predominant wind direction is inconclusive at this time due to the limited time period that has transpired since L:\2008\Letter\89665(A01)\BEN8L005 Page 1 of 2 Copyright 2007 Kleinfelder, Inc. 62915 NE 18t St. Suite 1 Bend, OR 97701 Tel. 541.382.4707 Fax. 541.383.8113 KLEINFELDER the time the anemometer was deployed. We recommend continued monthly monitoring to evaluate seasonal variation in wind direction and predominant directional trends. CLOSING We trust this memorandum will meet the needs of 4-R Equipment, LLC at this time, and appreciate the opportunity to be of service. If you should have any questions concerning this memorandum, please contact our Bend office at (541) 382-4707. REFERENCES: Oregon Land Use Board of Appeals, October 3, 2007, Final Opinion and Order No. 2007-013. Attachments: Figure 1: Wind Data (11/20/07-12/26/07) L:\2008\Letter\89665(A01)\BEN8L005 Page 2 of 2 62915 NE 18ih St. Copyright 2007 Kleinfelder, Inc. Suite 1 Bend, OR 97701 Tel. 541.382.4707 Fax 541383.8118 K L E I N F E L D E R FK UR S Percent of Time at Wind Direction (11!20!07-12!26!07) Z (09£-0) sealed ui uoR3eJI13 puIM Percentage of Time (11/20/07-12/26/07) w CC 3 L Project # 89665 A01 N FELD ER ?a\),A F --\-01a 2 3 4 5 6 7 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON TAMMERA WALKER and CLAY WALKER, Petitioners, vs. 8 9 DESCHUTES COUNTY, 10 Respondent, 11 12 and 13 14 4-R EQUIPMENT, LLC, 15 Intervenor -Respondent. 16 17 LLTBA No. 2007-013 18 19 FINAL OPINION 20 AND ORDER 21 22 Appeal from Deschutes County. 23 24 Douglas M. DuPriest, Eugene, filed the petition for review and Zack P. Mittge argued 25 on behalf of petitioners. With him on the brief were Zack P. Mittge and Hutchinson, Cox, 26 Coons, DuPriest, Orr & Sherlock, P.C. 27 28 Laurie E. Craghead, Assistant Legal Counsel, Bend, filed a response brief and 29 represented respondent. 30 31 Robert S. Lovlien, Bend, filed a response brief and argued on behalf of intervenor - 32 respondent. With him on the brief was Bryant, Lovlien & Jarvis, P.C. 33 34 BASSHAM, Board Member; HOLSTUN, Board Chair; RYAN, Board Member, 35 participated in the decision. - 36 37 REMANDED 10/03/2007 38 39 You are entitled to judicial review of this Order. Judicial review is governed by the 40 provisions of ORS 197.850. Page 1 1 Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioners appeal a county decision redesignating and rezoning a 385 -acre parcel to 4 allow surface mining. 5 MOTION TO INTERVENE 6 4-R Equipment, LLC (intervenor), the applicant below, moves to intervene on the 7 side of respondent. There is no opposition to the motion, and it is allowed. 8 FACTS 9 The subject property is located on Highway 20 in the Millican Valley, approximately 10 25 miles southeast of the City of Bend. The 385 -acre parcel is zoned Exclusive Farm Use, 11 and is subject to Antelope Winter Range Wildlife Area (WA) and Landscape Management 12 (LM) overlay zones. Highway 20 bisects the northern portion of the parcel. A portion of the 13 Dry River canyon is located on the property parallel to the highway. Uses on adjacent and 14 nearby properties include cattle ranching, wildlife habitat, the Pine Mountain Observatory, 15 an off-road vehicle recreation site, native American archeological and cultural sites, and 16 several dwellings. 17 Intervenor applied to the county for a plan amendment to include the subject property 18 in the county's inventory of mineral and aggregate sites, and to rezone the property to 19 Surface Mining (SM), to facilitate proposed mining and crushing of basalt rock. The county 20 hearings officer conducted a public hearing, and issued a decision recommending that the 21 proposed plan amendment and zone change be denied for failure to identify measures to 22 avoid or minimize conflicts with adjoining and nearby uses, based in part on alleged impacts 23 on uses in the area that are located up to six and one-half miles away from the subject 24 property. The county board of commissioners approved the application and proposed 25 mining, concluding that the relevant impact area should extend no further than one-half mile 26 from the property. In addition, the commissioners imposed a Surface Mining Impact Area Page 2 1 (SMIA) overlay zone on all properties within one-half mile of the boundary of the subject 2 property. The SMIA overlay zone imposes standards on the use of nearby properties to 3 reduce conflicts with the proposed surface mining operation. This appeal followed. 4 FIRST ASSIGNMENT OF ERROR 5 Petitioners argue that the county erred in applying the SMIA overlay zone on 6 property within one-half mile of the subject parcel. According to petitioners, under the 7 county code only the property owner can initiate a quasi-judicial zoning map amendment. 8 Because the nearby property owners did not signthe application, petitioners argue, the 9 imposition of the SMIA overlay zone is invalid. 10 Deschutes County Code (DCC) 18.56.020 requires that "[t]he SMIA zone shall apply 11 to all property located within one-half mile of the boundary of a surface mining zone." The 12 county responds that DCC 18.56.020 operates automatically to impose the SMIA zone on all 13 property within one-half mile of the boundary of the SM zone. According to the county, that 14 automatic application supersedes the general code provisions, at DCC 18.136.010 and 15 22.08.010(B)(1), that require that the property owner or an authorized agent sign an 16 application for a quasi-judicial zoning map amendment. 17 We agree with the county that the relevant DCC provisions do not require that the 18 owners of property to which the SMIA overlay zone is applied under DCC 18.56.020 sign or 19 authorize the application for SM zoning. The purpose of the SMIA overlay zone is "to 20 protect the surface mining resources of Deschutes County from new development which 21 conflicts with the removal and processing of a mineral and aggregate resource while 22 allowing owners of property near a surface mining site reasonable use of their property." 23 DCC 18.56.010. That purpose would be frustrated if nearby property owners could 24 effectively veto a surface mining operation by refusing to sign or authorize the application 25 for SM zoning. Presumably for that reason, the county drafted DCC 18.56.020 so that it 26 mandates imposition of the SMIA overlay zone on nearby properties, when the property that Page 3 1 is the subject of the application is zoned SM. That expression of specific intent overrides the 2 general code provisions petitioners cite that require the property owner or authorized agent to 3 sign an application for development or land use actions. 4 The first assignment of error is denied. 5 SECOND ASSIGNMENT OF ERROR 6 OAR 660-023-0180 sets out standards goveming a post -acknowledgment plan 7 amendment to allow mineral or aggregate mining. As a general overview, the rule requires 8 the county to (1) determine an impact or study area, (2) identify conflicts with certain uses 9 within that impact area, (3) determine reasonable and practicable measures that would 10 minimize identified conflicts, and (4) based on significant conflicts that cannot be 11 minimized, conduct an analysis of the economic, social, energy and environmental (ESEE) 12 consequences of allowing, limiting, or not allowing mining at the site. 13 The first step, identifying the impact area, is governed by OAR 660-023-0180(5)(a), 14 which requires that: 15 "The local government shall determine an impact area for the purpose of 16 identifying conflicts with the proposed mining and processing activities. The 17 impact area shall be large enough to include uses listed in subsection (b) of 18 this section and shall be limited to 1,500 feet from the boundaries of the 19 mining area, except where factual information indicates significant potential 20 conflicts beyond this distance." 21 The hearings officer recommended an expanded impact area that would allow 22 evaluation of conflicts with a number of specific uses located beyond 1,500 feet, including 23 (1) the Pine Mountain Observatory, (2) sage grouse habitat, and (3) cattle operations on the 24 Evans Well Ranch. The county board of commissioners ultimately adopted an impact zone 25 that corresponds with the boundaries of the SMIA overlay zone, approximately one-half mile 26 from the boundaries of the subject property. That one-half mile impact zone is larger than 27 the 1,500 -foot impact area specified in OAR 660-023-0180, but does not include the above 28 uses. The commissioners determined that no "factual information indicates significant Page 4 1 potential conflicts beyond" the one-half mile boundary, and thus declined to expand the 2 impact area or evaluate conflicts with the above uses. 3 Petitioners challenge that determination and argue that the county erred in failing to 4 expand the impact area to evaluate the above uses. We address each in turn. 5 A. Pine Mountain Observatory 6 The Pine Mountain Observatory is located on Pine Mountain, approximately 6.5 7 miles southeast of the subject property. The observatory's resident astronomer testified that 8 the observatory is downwind of the proposed mining site during the summer, when 9 prevailing winds are from the northwest, and that dust from the operation would blow 10 directly over the observatory, impacting it in two ways: (1) by refracting light, interfering 11 with observations, and (2) by settling on the sensitive lenses and instruments at the 12 observatory, which are open to the air, requiring increased maintenance and risk of damage. 13 The astronomer stated that in recent years dust from development in the region has increased, 14 reducing the quality of observations, damaging instruments and causing them to "lock up." 15 According to the astronomer, dust from the proposed mining operation will "greatly 16 increas[e]" the existing dust problems. Supp Rec 3. The combination of impacts from 17 existing dust and light pollution and the proposed quarry risks eliminating the observatory as 18 an "actual research facility" for the University of Oregon. Supp Rec 3. 19 In response, intervenor submitted evidence that there have been no complaints 20 regarding dust at their other mining and crushing sites, some of which are located within 21 urban growth boundaries or close to residential uses. The commissioners ultimately agreed 22 with intervenor that the evidence in the record did not establish that dust from the proposed 23 mining/crushing operation would "significantly" conflict with the observatory, and the 24 commissioners thus declined to expand the impact area to include the observatory.' 1 The commissioners' findings state, in relevant part: Page 5 1 Petitioners argue that the commissioners' decision with respect to the observatory is 2 not supported by substantial evidence. According to petitioners, the astronomer's testimony 3 is unrefuted factual information indicating "significant potential conflicts" with the 4 observatory, and therefore the county erred in failing to expand the impact area to include the 5 observatory. 6 Substantial evidence is evidence a reasonable person would rely on in reaching a 7 decision. City of Portland v. Bureau of Labor and Ind., 298 Or 104, 119, 690 P2d 475 8 (1984); Bay v. State Board of Education, 233 Or 601, 605, 378 P2d 558 (1963); Carsey v. 9 Deschutes County, 21 Or LUBA 118, aff'd 108 Or App 339, 815 P2d 233 (1991). In 10 reviewing the evidence, however, we may not substitute our judgment for that of the local 11 decision maker. Rather, we must consider all the evidence in the record to which we are 12 directed, and determine whether, based on that evidence, the local decision maker's 13 conclusion is supported by substantial evidence. Younger v. City of Portland, 305 Or 346, "The Pine Mountain Observatory is approximately 6.5 miles east of the subject property located on top of Pine Mountain. A potential conflict that was identified was dust emanating from the proposed mining operations. The issue is whether this would be a `significant' potential conflict justifying an expansion of the impact area. The Observatory is a substantial distance from the subject property. There are a number of other activities occurring within the Millican Valley and surrounding Paulina Mountains that currently generate dust. These would include the off-road vehicle trails near Millican, the unpaved dirt roads throughout the Millican Valley as well as in the Paulina Mountains, which are heavily used for recreational and hunting purposes, and dust which naturally occurs in Central Oregon. Dust is most likely. to occur during crushing operations on the site. However, there was testimony that the Applicant operates similar crushing sites at its Century Drive pit in Bend, Oregon, which is only 300 yards from the entrance to the Broken Top, which is an upscale, golf, planned unit development. There have been no complaints regarding dust from Applicant's crushing operation. Applicant has also operated a crusher within the city limits of the City of Redmond at the Fireman's Pond. There have been no complaints from the operation of that surface mine. Applicant also operates a mining operation east of Alfalfa on George Millican Road. There have been no complaints of dust emanating from this site. Applicant also operates a crusher at its O'Neil Junction pit outside of Prineville. No complaints with regard to dust have been received. Based upon the distance from the subject property to the Pine Mountain Observatory, the activities that currently exist within the Millican Valley, and evidence of Applicant's other crushing operations in Central Oregon, dust would not be a significant potential conflict for the Pine Mountain Observatory. Therefore, the Board finds that the Pine Mountain Observatory is too far to be considered within the mining site's impact area." Record 9-10. Page 6 1 358-60, 752 P2d 262 (1988); 1000 Friends of Oregon v. Marion County, 116 Or App 584, 2 588, 842 P2d 441 (1992). 3 The astronomer's testimony is substantial evidence, and the county almost certainly 4 could have relied on that testimony to conclude that the proposed mine represents a 5 significant potential conflict with the observatory, justifying an expanded impact area. 6 However, intervenor argues, and we agree, that that testimony is not so compelling that no 7 reasonable decision maker could reach a contrary conclusion. The astronomer's testimony 8 assumes that the proposed mining/crushing operation would produce a significant amount of 9 dust, and apparently did not take into account the use of water to control dust and the use of 10 paved internal roads, as required by the county's decision. See Record 579-80 (colloquy 11 between the astronomer and commissioners). As the findings note, there are many other 12 sources of dust in the area, and it is not at all clear that whatever amount of dust the mine 13 produces would be significant relative to the existing level of dust. In our view, a reasonable 14 person could conclude based on the whole record that dust from the operation would not be a 15 significant potential conflict with the observatory. Accordingly, we must affirm the county's 16 decision not to expand the impact area to include the observatory. 17 This subassignment of error is denied. 18 B. Sage Grouse 19 The commissioners declined to expand the impact area to include a sage grouse lek 20 (strutting ground) located near the subject property, finding: 21 "The proposed surface mining operation is within 1.25 miles of a sensitive 22 bird and mammal site. This is a sage grouse site (lek), listed as Site No. DE 23 0999-01 on the County's Wildlife Inventory * * *. However, the mining site 24 is located outside of the sensitive bird and mammal (SBM) combining zone, 25 and does not require SMB review under [DCC 18.90]. Since the mining site 26 is outside of the SMB combining zone and the sage grouse site is protected by 27 the SBM combining zone, this site does not represent a significant potential 28 conflict requiring the expansion of the impact area." Record 10. Page 7 1 Petitioners argue that the county failed to consider that the subject property is located 2 on or near flight paths between the lek and nearby nesting sites, and that noise and dust from 3 the mine may disrupt sage grouse flight patterns. Petitioners cite to a map from the county 4 comprehensive plan at Supplemental Record 77 that identifies sage grouse nest sites, leks 5 and flight paths in the Millican Valley area, which appears to show the subject property in 6 the middle of several flight paths to and between nest sites and leks. Petitioners also cite to 7 testimony that sage grouse are highly sensitive to disturbance. Petitioners contend that the 8 county's finding fails to address this testimony, indeed makes no findings regarding any 9 "factual information" at all, but instead simply relies on the SMB combining zone to 10 conclude that the mine will not represent a significant potential conflict with the identified 11 lek.2 12 Respondents make no meaningful response to this argument, other than to assert that 13 the county's decision is supported by substantial evidence. If we understand petitioners' 14 argument correctly, they dispute the county unexplained finding that the SBM zone is 15 sufficient to protect the leks sites. We understand petitioners to contend that despite the 16 SBM zone the proposed mining poses "significant potential conflicts" with the leks sites and 17 thus the impact area needs to be expanded. According to petitioners, sage grouse use of the 18 leks is dependent on flight patterns that cross over or near the subject property, and "factual 19 information" in the record indicates that the mining activity may disrupt those flight patterns, 20 which in turn may disrupt use of the leks. Absent a more focused response from the county 21 or intervenor we agree with petitioners that the county's findings are inadequate to explain 22 why the county can reasonably rely on the SBM zone to conclude there will be no 23 "significant potential conflicts" with the leks and thus decline to expand the impact area to 24 include them. 2 Although the decision and the parties do not make this clear, we assume that the leks and other areas protected by the SBM zone are inventoried Goal 5 resources. Page 8 1 This subassignment of error is sustained. 2 C. Evans Well Ranch 3 The commissioners declined to expand the impact area to include the Evans Well 4 Ranch, located four miles south of the subject property, finding: 5 "The potential conflicts [with Evans Well Ranch] would include noise, dust, 6 traffic, vibrations, water draw down, visual impacts and quality of life. This 7 site is located over four miles south of the subject property. There will be no 8 traffic generated by the mining site that will go past this Ranch. There is no 9 evidence that the Ranch will be impacted by noise. There is evidence that the 10 proposed mining activities will not affect the valley water supply. * * *" 11 Record 10. 12 Petitioners cite to testimony from the owners of the ranch at Record 103, stating that 13 if cattle avoid one part of a pasture due to noise or dust, they will overuse another portion, 14 which could lead to smaller or fewer calves and resulting direct financial loss to the ranchers. 15 The owners also speculated that if the mining operation impacts sensitive sage grouse 16 populations, the Bureau of Land Management (BLM) may restrict grazing on the ranchers' 17 allotments in the area, forcing the ranchers to rely more on privately owned land and 18 incurring additional costs. Petitioners argue that this testimony is unrefuted, and that the 19 county erred in failing to expand the study area to include the Evans Well Ranch. 20 The ranchers state that part of their BLM grazing allotment is within the half-mile 21 impact area. Record 99. We understand the letter at Record 103 to assert that blasting and 22 other impacts of the proposed mining will cause cattle on that allotment to abandon that 23 pasture and instead graze more heavily on the privately owned pastures on the ranch itself, 24 outside the impact area, significantly increasing the rancher's costs and reducing their 25 income. The ranchers also speculate that mining impacts on sensitive sage grouse habitat 26 and flight patterns may cause the BLM to restrict grazing on their allotments, further 27 impacting the ranch. 28 Intervenor does not cite to any countervailing evidence supporting the county's 29 finding of no "significant potential conflicts" with the Evans Well Ranch. The record may Page 9 1 include such evidence, but without some assistance from respondents on this point, we will 2 not independently search the record for such evidence. In any event, in view of the above - 3 noted testimony that the proposed mining will conflict with nearby cattle operations, the 4 county must explain in its fmdings why it believes, despite that testimony, that the proposed 5 mining will not result in "significant potential conflicts" with respect to the Evans Well 6 Ranch. As it stands, on this question, the county's decision is not supported by adequate 7 findings or substantial evidence. 8 This subassignment of error is sustained. 9 D. Residential Uses 10 Petitioners argue: 11 The County's decision excludes other residences from the impact boundary 12 without any finding or identified reason for such exclusion. The County erred 13 as a matter of law in so excluding those other residences identified by the 14 Hearings Official." Petition for Review 11. 15 Petitioners do not specify where these "other residences" are located. The hearings 16 officer's recommendation includes a table listing existing uses, including "Other residences." 17 The table simply notes that the location of these residences "varies" and that potential 18 conflict issues include "quality of life; traffic." Record 778. As far as we can tell, the 19 hearings officer did not recommend that the impact area be expanded to include these 20 unidentified residences, which perhaps accounts for why the commissioners did not adopt 21 findings explaining why they are not included in the impact area. Petitioners do not identify 22 their location, or explain why these dwellings should be included in the impact area. Absent 23 a more developed argument, petitioners have not established that the county erred in 24 excluding these unidentified residences from the impact area. 25 This subassignment of error is denied. 26 The second assigmnent of error is sustained, in part. Page 10 1 THIRD ASSIGNMENT OF ERROR 2 Petitioners contend that the county misconstrued OAR 660-023-0180(5)(b)(A) in 3 concluding that the county may not consider impacts on existing uses that involve "quality of 4 life" and "aesthetic concerns." 5 The county found: 6 "After reviewing all the above uses that are further than a half -mile from the 7 property line, the Board finds that the impact on quality of life of [residents] 8 and visitors to the Millican Valley and aesthetic concerns may not be 9 considered because OAR 660-023-0180(5) limits the type of conflicts that 10 may be considered to those listed m that section. Morse Bros., Inc. vs. 11 Columbia County, 37 Or LUBA 85 (1999), affirmed 165 Or App 512 [996 12 P2d 1023] (2000). * * *" Record 10-11. 13 Petitioners argue, to the contrary, that OAR 660-023-0180(5)(b)(A) requires the 14 county to consider "[c]onflicts due to noise, dust or other discharges with regard to those 15 existing and approved uses and associated activities (e.g., house and schools) that are 16 sensitive to such discharges."3 According to petitioners, adverse impacts on residents' 3 OAR 660-023-0180(5)(b) provides, in relevant part: "(b) The local government shall determine existing or approved land uses within the impact area that will be adversely affected by proposed mining operations and shall specify the predicted conflicts. For purposes of this section, `approved land uses' are dwellings allowed by a residential zone on existing platted lots and other uses for which conditional or final approvals have been granted by the local government. For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: "(A) Conflicts due to noise, dust, or other discharges with regard to those existing and approved uses and associated activities (e.g., houses and schools) that are sensitive to such discharges; "(B) Potential conflicts to local roads used for access and egress to the mining site within one mile of the entrance to the mining site unless a greater distance is necessary in order to include the intersection with the nearest arterial identified in the local transportation plan. Conflicts shall be determined based on clear and objective standards regarding sight distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation plan and implementing ordinances. Such standards for trucks associated with the mining operation shall be equivalent to standards for other trucks of equivalent size, weight, and capacity that haul other materials; Page 11 1 "quality of life" or aesthetic concerns must be considered as long as those impacts are caused 2 by "noise, dust or other discharges." 3 Intervenor responds that the county's decision in fact addressed noise, dust and other 4 impacts on the residents of the Walker dwelling, the only dwelling within the one-half mile 5 impact area, but the commissioners properly did not consider any quality of life or aesthetic 6 concerns that are unrelated to noise and dust discharges. 7 We agree with petitioners that any conflict with existing and approved uses, including 8 residential uses, that are sensitive to such discharges and that are caused by "noise, dust or 9 other discharges" from the mining operation must be considered under OAR 660-023- 10 0180(5)(b)(A). Therefore, if "noise, dust or other discharges" result in "quality of life" 11 concerns, and even "aesthetic concerns," they may be considered. Although the rule limits 12 the types of uses that can be conflicting uses, it does not qualify or limit the scope of 13 "conflicts" that may be caused by noise, dust or other discharges. For example, if there is 14 substantial evidence that the residents of a dwelling within the impact area will suffer an 15 adverse impact on their "quality of life" due to noise or dust discharges from a mining 16 operation, the county must consider such conflicts. 17 Conversely, we agree with intervenor that impacts on "quality of life" or "aesthetic 18 concerns" that are not caused by noise, dust or other discharges from a mining operation 19 need not be considered. Visual impacts, for example, are not "noise, dust or other 20 discharges," so the fact that residents may be offended at the sight of a mining operation or "(D) Conflicts with other Goal 5 resource sites within the impact area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; "(E) Conflicts with agricultural practices[.]" Page 12 1 who feel that their quality of life has deteriorated due to the mere proximity of a mining site 2 is not something the county must consider under OAR 660-023-0180(5)(b)(A). 3 Here, the county considered impacts caused by noise, dust and vibrations on the 4 Walker residence, which is located approximately 2,300 feet from the subject property. 5 Record 12-13, 16-17. The county even considered impacts on the "quality of life on the 6 Walker Residence." Record 17. Petitioners do not challenge those findings. If there are 7 any impacts caused by noise, dust or other discharges on the Walker residence that the 8 county failed to consider, petitioners do not identify what they are. Accordingly, any error 9 the county may have made in interpreting OAR 660-023-0180(5)(b)(A) does not provide a 10 basis for reversal or remand. 11 The third assignment of error is denied. 12 FOURTH ASSIGNMENT OF ERROR 13 Petitioners contend that the county failed to consider impacts on several existing or 14 approved land uses either on the subject property or within the one-half mile impact area, 15 including Spencer Wells Road, pygmy rabbit and sage grouse habitat, and possible native 16 american archeological and cultural sites within the portion of the Dry River Canyon located 17 on the subject property. 18 A. Spencer Wells Road 19 Spencer Wells Road is a paved county road that is the only access road to the subject 20 property. Petitioners argue that, while the county considered dust and traffic issues related to 21 Highway 20, the county failed to identify Spencer Wells Road as a potential conflicting use. 22 Intervenor responds that no party identified Spencer Wells Road as a potential 23 conflicting use or raised any issues regarding the road. The county found no traffic issues 24 involving Spencer Wells Road. 25 Petitioners do not assert that any party below identified Spencer Wells Road as a 26 potential conflicting use, or raised any issues regarding impacts on the road. Petitioners do Page 13 1 argue that the same "dust, traffic and maintenance issues" that the county identified with 2 respect to Highway 20 "also apply" to Spencer Wells Road. Petition for Review 13. We 3 reject, below, petitioners' challenges to the county's findings regarding impacts on Highway 4 20. Petitioners do not explain why the county's resolution of those issues with respect to 5 Highway 20 does not apply with equal force to Spencer Wells Road. The only attempt, m a 6 footnote, is a challenge to the county's reasoning that any increased maintenance costs to 7 Highway 20 would be offset by the fact that a similar number of trucks would use other 8 highways if the mining is not approved.4 Petition for Review 13, n 5. Petitioners argue that 9 that reasoning would not apply to the Spencer Wells Road. However, that reasoning, for 10 what it is worth, seems to us equally applicable to Spencer Wells Road. If the mining 11 operation is not approved, the county will obtain the necessary aggregate from other sites 12 that presumably are accessed by other county roads. Petitioners have not established that the 13 county erred in failing to identify Spencer Wells Road as a potential conflicting use. 14 This subassignment of error is denied. 15 B. Wildlife Habitat 16 Petitioners argue that the county failed to properly consider impacts on sensitive 17 pygmy rabbit and sage grouse habitat located on the subject property. According to 18 petitioners, intervenor's own wildlife expert identified what might be pygmy rabbit burrows 19 and possible sage grouse "dusting" sites on the subject property. Yet, petitioners argue, the 20 county concluded that "there was no conclusive evidence of [pygmy rabbits or sage grouse] 21 being found on this project site." Record 14. 4 The county's analysis of economic consequences of allowing the proposing mining use includes the following finding: "U.S. Highway 20: The only economic impact that can be identified to US. Highway 20, which is the other approved land use, would be increased maintenance on the Highway. However, this will be offset by the fact that these trucks will be on some other highway in Central Oregon if this site is not approved." Record 17. Page 14 1 Intervenor responds that the county considered wildlife habitat on the subject 2 property, and concluded, based on the report by intervenor's biologist in consultation with 3 the Oregon Department of Fish and Wildlife (ODF&W), that neither pygmy rabbits nor sage 4 grouse were present on the property. We agree with intervenor that petitioners misread the 5 biologist's report. The biologist found one set of burrows with some but not all of the 6 characteristics of pygmy rabbit burrows, and concluded that there was "some possibility" 7 that the burrows belonged to pygmy rabbits rather than other, non -sensitive species, but 8 ultimately found no conclusive evidence that pygmy rabbits existed on the property. With 9 respect to the sage grouse "dusting" site, the biologist ultimately concluded that it was a 10 dusting site for the non -sensitive kangaroo rat. The report supports the county's finding that 11 there is no conclusive evidence of pygmy rabbits or sage grouse on the property. 12 This subassignment of error is denied. 13 C. Native American Archeological and Cultural Sites 14 The northern portion of the subject property includes a section of the Dry River 15 Canyon. Petitioners cite to evidence that the Dry River Canyon area in general is one of the 16 most important archeological areas in the state, and an area that is used for cultural and 17 religious purposes by several recognized Oregon tribes. Intervenor hired an expert to 18 conduct an archeological survey of the portion of the subject property that would be mined. 19 According to petitioners, the expert focused on the mining site itself, and did not examine the 20 majority of the canyon area on the property, which lies mostly within a 600 -foot buffer zone 21 between the mining site and Highway 20. Nonetheless, petitioners point out, the survey 22 found a prehistoric tool manufacturing site, among others, in or near the canyon. The expert 23 found that none of the archeological sites were significant, however, and concluded that the 24 proposed mining would not impact any significant archeological resources. 25 Petitioners argue that the county erred in not requiring the applicant to survey the rest 26 of the canyon on the subject property. The ostensible reason for not surveying the rest of the Page 15 1 canyon was because that portion is within a 600-foot buffer area between the mining site 2 itself and Highway 20 that will not be mined. However, petitioners contend, intervenor was 3 afraid of what its expert might find if allowed to fully survey the canyon. 4 Intervenor responds that the county evaluated impacts on a known archeological site 5 that is located on the Walker property, approximately 3,044 feet from the mining site. 6 Pictograms are located on that site. The county found that that site would not impacted by 7 blasting vibrations or dust. However, that response misses the mark. Petitioners' argument 8 concerns possible archeological sites in the portion of Dry River Canyon located on the 9 subject property, within several hundred feet of the mining site, not the known site on the 10 Walker property. Nothing cited to us in the county's decision addresses potential mining 11 conflicts with those possible sites. 12 Nonetheless, petitioners do not identify any administrative rule or other applicable 13 land use regulation that requires the applicant to survey the portion of Dry River Canyon 14 within the 600-foot buffer area between the mining site and Highway 20 for undiscovered 15 archeological sites. Such sites, if they exist, are not inventoried Goal 5 resources. In any 16 case, petitioners merely speculate that significant archeological sites may exist in the 17 unsurveyed portion, but there is apparently no evidence on that point whatsoever. 18 Accordingly, petitioners have not demonstrated that the county erred in failing to consider 19 conflicts with unknown archeological sites within the 600-foot buffer. 20 This subassignment of error is denied. 21 The fourth assignment of error is denied. 22 FIFTH ASSIGNMENT OF ERROR 23 Petitioners contend that the county failed to address all of the potential conflicts with 24 a known archeological site with native pictograms that is located on the Walker property 25 within the impact area north of Highway 20. According to petitioners, the county evaluated 26 only the impacts of vibration and dust under OAR 660-023-0180(5)(b)(A) and failed to Page 16 1 evaluate the risk that fires stemming from mining activities on the subject property could 2 damage the pictograms. Petitioners also contend the county ignored testimony from a forest 3 service archeologist that diesel exhaust and other discharges from mining activities might 4 damage the pictograms. 5 Intervenor responds that the subject property is part of the Oregon high desert, and 6 there is no reason to believe that a fire started on the subject property would significantly 7 increase the existing chances that wildfire could damage the pictograms, which have 8 survived thousands of years of wildfires. Intervenor notes that the pictograms are separated 9 from the mining site by Highway 20, and that the decision requires intervenor to procure a 10 water right and construct a storage pond on site, which reduces whatever likelihood exists 11 that mining activities might start a fire that could spread across the highway to the pictogram 12 site 3,000 feet away. Intervenor argues that the county properly did not consider fire and 13 diesel exhaust as "discharges" that required consideration under OAR 660-023- 14 0180(5)(b)(A). 15 We agree with intervenor. Even assuming a wildfire caused by mining activities is 16 properly viewed as a "discharge" for purposes of OAR 660-023-0180(5)(b)(A), petitioners 17 cite to no evidence suggesting that mining activities are likely to increase the risk of wildfires 18 in the area or the risk to the pictogram site, especially given the barrier formed by Highway 19 20. With respect to diesel exhaust, petitioners cite to no evidence suggesting that diesel 20 emissions from mining operations are likely to impact the pictogram site, or impact it to any 21 greater degree than emissions from existing traffic on Highway 20, which is much closer to 22 the pictogram site. Accordingly, petitioners' arguments under this assignment of error do not 23 provide a basis for reversal or remand. 24 The fifth assignment of error is denied. Page 17 1 SIXTH ASSIGNMENT OF ERROR 2 As noted, OAR 660-023-0180(5)(b)(A) requires the county to identify conflicts due 3 to "discharges with regard to those existing and approved uses and associated activities (e.g., 4 houses and schools) that are sensitive to such discharges." Petitioners contend that the 5 county erred in evaluating only "approved" uses under OAR 660-023-0180(5)(b)(A), and 6 failed to properly evaluate "existing" uses such as the pictograms on the Walker property, the 7 historic Coyote Well, Highway 20, and the Best Shelter. 8 As an initial matter, it is not clear to us that the county limited its evaluation to 9 "approved" uses and ignored "existing" uses, as petitioners claim. Petitioners cite no fmding 10 to that effect, other than to a finding at Record 12 that the Walker residence is the only 11 "approved" use in the impact area. However, that finding appears to be correct, as far as it 12 goes. The fmding does not suggest that the county declined to evaluate "existing" uses. That 13 observation aside, we turn to petitioners' particular arguments. 14 A. Pictograms 15 The county identified dust and vibration impacts as potential conflicts with the 16 pictograms on the Walker property. Petitioners argue that the pictograms are "existing" uses, 17 and repeat their above arguments that the county failed to evaluate fire and diesel exhaust 18 emissions. In addition, petitioners dispute the evidence submitted by intervenor's expert 19 below that blasting from the mining site would not disturb the pictograms. Finally, 20 petitioners argue that even if the blasting does not disturb the pictograms, it may disturb 21 native American religious and cultural ceremonies centered around the pictogram site. 22 The county found that the pictograms are not Goal 5 inventoried resources, and so do 23 not require evaluation under OAR 660-023-0180(5)(b)(D). Record 13. Petitioners do not 24 dispute that fmding, but instead argue that the pictograms are "existing" uses that must be 25 evaluated under OAR 660-023-0180(5)(b)(A). Intervenor does not dispute that view, and we Page 18 1 assume for purposes of this opinion that petitioners are correct. Instead, intervenor argues 2 only that the county properly evaluated conflicts with the pictograms. 3 We already rejected petitioners' arguments above that the county must consider fire 4 and exhaust conflicts as well as dust and vibrations, and do not repeat that analysis here. 5 With respect to blasting impacts on the pictograms, intervenor cites to a vibrations study 6 concluding that the proposed blasting would fall well below European standards for 7 protecting cultural resources from vibration and would not harm the pictograms. Although 8 petitioners critique that study on various grounds, petitioners have not demonstrated that the 9 study is not substantial evidence that a decision maker could rely upon to reach a conclusion 10 regarding vibration impacts on the pictograms. 11 The issue of native American religious and cultural use of the area around the 12 pictograms is a more difficult one. Intervenor does not respond to that argument, and 13 nothing cited to us in the decision addresses it. Petitioners cite to testimony that the area 14 around the pictograms includes numerous burial sites, and that tribal members visit the area 15 to conduct religious and cultural ceremonies honoring their ancestors. A tribal cultural 16 resource protection specialist statedthat the proposed mining operation would destroy an 17 area that demands quiet for tribal members that visit for religious and cultural purposes. 18 Absent some response from intervener-or;the -county, on thisissue, we agree with petitioners 19 that:rernandis necessary far4he eou rtylo evaluate whether such visits are 'existing" uses for 20 purposes of OAR 660-023-0180(5)(b)(A) and, if so, to evaluate alleged conflicts with those 21 uses. 22 This subassignment of error is sustained, in part. 23 B. Coyote Well 24 Coyote Well is a historic structure located approximately 1,350 feet from the subject 25 property. The county identified vibrations and water draw down as potential conflicts, and 26 concluded that the proposed mining operation would not impact the aquifer that feeds the Page 19 1 well. Record 14. However, ;petitioners :argue thatthe county in fact failed to evaluate 2 whether vibrations from blasting could impact the structure. 3 Intervenor does not respond to this argument, and does not cite to any part of the 4 decision addressing the question of vibration impacts on Coyote Well. Accordingly, remand 5 is necessary so that the county can adopt fmdings to address that issue. This subassignment 6 of error is sustained. 7 C. Highway 20 8 The county identified dust as a potential conflict with Highway 20. Petitioners argue 9 that the county inadequately evaluated dust conflicts and failed to determine how such 10 conflicts may be mitigated under OAR 660-023-0180(5)(c). See n 5. Further, petitioners 11 argue that the county failed to evaluate at all the possibility that blasting might send large 12 rocks onto the highway, endangering motorists. Petitioners cite to testimony that blasting at 13 one of intervenor's other mines caused rocks and debris to fall onto adjacent properties, 14 causing property damage. 15 Intervenor responds that the county required the use of paved internal roads and water 16 to minimize dust from mining and crushing, and that such measures are sufficient to 17 minimize any conflict regarding dust between the mining operation and Highway 20. We 18 agree with intervenor. Petitioners do not explain why those measures are inadequate or what 19 further evaluation the county is required to undertake with respect to dust impacts on 20 Highway 20. 21 With respect to blasting, intervenor responds elsewhere that petitioners rely upon one 22 isolated incident involving a different mining operation and do not explain why there is any 23 basis for concern that blasting on the subject property will cause rocks and debris to impact 24 Highway 20. Again, we agree. The county required a 600 -foot buffer area between the 25 mining site and Highway 20. There may be evidence in the record indicating that that buffer 26 area is insufficient to protect the highway from flying rocks and debris generated by blasting Page 20 1 at the proposed levels, but if so petitioners do not cite it to us. This subassignment of error is 2 denied. 3 D. Best Shelter 4 The county identified dust, noise, traffic and vibrations as potential conflicts with the 5 Best Shelter, which apparently is a historic structure of some type located on private property 6 approximately 1,775 feet from the subject property. Petitioners argue, however, that the 7 county failed to evaluate those potential impacts and either mitigate any impacts under 8 OAR 660-023-0180(5)(c) or address them under the ESEE analysis at OAR 660-023- 9 0180(5)(d). See ns 5 and 8, below. 10 Intervenor responds, simply, that "there is no real good identity of what that shelter 11 consists of," and that "[t]he owner of the property did not testify or submit any other 12 information." Response Brief 7. Those responses may be accurate, but they do not give us a 13 basis to reject petitioners' arguments iTgaMtil3i°'d es fib eit to ti s'Mata'ddciress' 14 eo flidis i i Elie sli[eite1; or explain *hr such conflicts need not be addressed: This 15 subassignment of error is sustained. 16 The sixth assignment of error is sustained, in part. 17 SEVENTH ASSIGNMENT OF ERROR 18 Petitioners repeat under this assignment of error their arguments that the county failed 19 to address under OAR 660-023-0180(5)(b)(A) other "discharges" such as fire, diesel exhaust 20 and flying rocks, addressed above. We reject those arguments for the reasons expressed 21 above. 22 The seventh assignment of error is denied. 23 EIGHTH ASSIGNMENT OF ERROR 24 OAR 660-023-0180(5)(b)(E) requires the county to consider "[c]onflicts with 25 agricultural uses." See n 3. OAR 660-023-0180(5)(c) provides that minimizing identified Page 21 1 conflicts with agricultural practices means conforming to the requirements of ORS 215.296.' 2 The statute, in turn, requires findings on whether the proposed use would force a significant 3 change in or significantly increase the cost of agricultural practices on nearby lands.6 4 Petitioners challenge the following finding: 5 "Staff reviewed in detail the potential conflicts that occur for uses allowed in 6 the EFU/HR Zone in the Staff Report dated January 6, 2005. The Board 7 concurs with the Staff findings on these potential conflicts and, thus, excerpts 8 from that Staff Report are incorporated herein by reference. See Exhibit G. 9 Within the impact area itself, the only agricultural uses have been very limited 10 dry land grazing and would not be considered significant." Record 13-14. 11 Petitioners argue that the county misunderstood OAR 660-023-0180(5)(b)(E) to be 12 limited to evaluation of conflicts with "significant" agricultural uses. However, petitioners 13 argue, the rule includes no such qualification, and plainly requires that the county evaluate 14 conflicts with any agricultural uses within the impact area, whether significant or not. 15 Petitioners argue that the county failed to determine whether proposed measures would 16 minimize conflicts to agricultural practices under ORS 215.296, and in fact did not address 17 the statute at all. Petitioners cite to the testimony of the Evans Well ranchers that impacts of 5 OAR 660-023-0180(5)(c) sets out the third step in the Goal 5 aggregate and mineral resources evaluation process, that of minimizing conflicts identified under OAR 660-023-0180(5)(b): "The local government shall determine reasonable and practicable measures that would minimize the conflicts identified under subsection (b) of this section. To determine whether proposed measures would minimize conflicts to agricultural practices, the requirements of ORS 215.296 shall be followed rather than the requirements of this section. If reasonable and practicable measures are identified to minimize all identified conflicts, mining shall be allowed at the site and subsection (d) of this section is not applicable. If identified conflicts cannot be minimized, subsection (d) of this section applies." 6 ORS 215.296(1) provides: "A use allowed under ORS 215.213 (2) or 215.283 (2) may be approved only where the local governing body or its designee fords that the use will not: "(a) Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use; or "(b) Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use." Page 22 1 the proposed mining may significantly change or cause significant increase in the costs of 2 their ranching practices. 3 Intervenor responds that nothing in the record indicates that dry land grazing within 4 the one-half mile impact area would be affected by the proposed mining. 5 Petitioners are correct that, for purposes of identifying conflicts with agricultural uses 6 within the impact area under the second step of the Goal 5 process at OAR 660-023- 7 0180(5)(b)(E), the rule is not concerned with the relative significance of the agricultural use. 8 Petitioners are also correct that, as required under the third step of the Goal 5 process, the 9 county's decision does not address ORS 215.296, or make any explicit effort to determine 10 whether there are proposed measures would minimize conflicts to agricultural practices 11 under that statute. 12 As discussed under the second assignment of error, the owners of the Evens Well 13 Ranch apparently graze their cattle on BLM allotments within the half -mile impact area, and 14 testified that the mining operation would adversely affect grazing on those allotments, and 15 would significantly change grazing operations and significantly increase the costs of grazing 16 operations on the entire ranch. The county's findings do not address that testimony and, as 17 noted, do not address ORS 215.296 or evaluate whether there are measures that would 18 minimize conflicts with agricultural uses, under the third step of the Goal 5 process at 19 OAR 660-023-0180(5)(c). The above -quoted fhiding`s'=iiic`orpdrate''iinidhhtified lcerpts" 20 frog•=Vie+> ttnt=r6;`2O05 repart,f:which is fii"iiiid beginning- at Record' 1562. However, 21 nothing cited to us in that stAff oport--addregs'es-lin-pacts on grazing in general or the grazing 22 operation of the Evens Well Ranch in particular. 23 The eighth assignment of error is sustained. 24 NINTH ASSIGNMENT OF ERROR 25 The proposed mining site includes the lowest area in the Dry River drainage, called 26 Teepee Draw. Petitioners cite to testimony from a geologist expressing concern that once the Page 23 1 mining pit reached a certain depth, it will draw water from nearby shallow perched aquifers 2 that support the Dry River and hydrologic features such as Coyote Well. Record 878-79. 3 The county addressed these concerns by adopting the following fording: 4 "There was concern expressed about water. The Applicant has applied for a 5 water right permit for a well to be located on the property. There is no 6 evidence that this groundwater right will in any way impact the regional 7 aquifer. It will not have any effect on small aquifers like the one feeding the 8 Coyote Well. See Letter from Oregon Water Resource Dept. of 7/22/05 and E-mail from Marshall Gannit of 08/02/05, Exhibit `A'." Record 14. 9 10 11 prepatyt 12 earliy-shallow ,perched• a4tiifers Aegording to petitioners, the county's findings are non - 13 responsive to that concern expressed by the geologist. 14 Intervenor makes no meaningful response to this assignment of error. Petitioners 15 appear to be correct that the county misunderstood the issue to be whether the groundwater 16 well into the regional aquifer would impact the shallow perched aquifers, and did not 17 evaluate the concern raised by the geologist that the mining pit itself might impact those 18 aquifers. We agree with petitioners that remand is necessary to address this issue and 19 conduct any necessary evaluations under OAR 660-023-0180(5). 20 The ninth assignment of error is sustained. 21 TENTH ASSIGNMENT OF ERROR 22 As noted, OAR 660-023-0180(5)(c) requires the county to determine reasonable and 23 practicable measures that would minimize identified conflicts. See n 5. The only identified 24 conflict the county considered under OAR 660-023-0180(5)(c) is with antelope winter range, 25 a Goal 5 -inventoried resource, protected by a wildlife overlay zone that applies to the subject 26 property. The county concluded that with restrictions on blasting and crushing during certain 27 winter periods that the conflict would be minimized ,th well to be drilled on the subject er, the mining fs pit: itself idewatcr Page 24 1 Petitioners challenge those findings under this assignment of error, arguing that the 2 county failed to adequately mitigate adverse impacts, as required by OAR 660-023- 3 0180(5)(c), with respect to the Goal 5 protected antelope winter range, as well as non -Goal 5 4 wildlife habitat.7 5 A. Antelope Winter Range 6 Intervenor's wildlife expert consulted with ODF&W and proposed the following 7 mitigation or means of minimizing the conflict with antelope winter range, quoted in the 8 county's decision at Record 14: 9 "Blasting and crushing will cease during periods of severe winter weather 10 conditions that may force antelope with no alternative winter range into the 11 area adjacent to the rock pit. [ODF&W's biologist] will monitor severe 12 winter conditions based on snow depth, temperature, and numbers of antelope 13 within 2 miles of the rock pit. [The biologist] will notify the applicant when 14 cessation of crushing and blasting is deemed necessary by the [biologist] due 15 to antelope winter range conditions. Cessation of blasting and crushing may 16 be necessary within 24 hrs. notice due to the nature of winter storms. The 17 applicant may choose to remove crushing equipment if crushing/blasting 18 cessation is necessary, and this removal will take up to two weeks from the 19 date of notice of cessation." 20 The findings recite that ODF&W reviewed the proposed mitigation and concluded 21 that it is sufficient to protect antelope during the winter months that the range is used. 22 Petitioners argue that the proposed mitigation and the county's findings are 23 inadequate, because they fail to address the possibility that the mining operation may dewater 24 the perched aquifers that support standing water in the area, including Coyote Well. 25 Petitioners also contend that even if blasting and crushing is stopped for certain periods 26 during the winter, the noise of excavation, haul trucks, generators etc. is on-going and is 27 likely to drive antelope away from the site. Further, petitioners contend that ODF&W 28 expected further mitigations that in fact were not forthcoming. Finally, petitioners dispute 7 Petitioners also repeat their arguments under the eighth assignment of error with respect to impacts on livestock grazing, and their arguments under the fourth assignment of error with respect to pygmy rabbits and sage grouse habitat. We do not address those arguments here. Page 25 1 the adequacy of the cessation requirements, arguing that blasting and crushing could 2 continue for up to 24 hours after a cessation warning. 3 Intervenor responds that the expert's wildlife study and ODF&W's letter concurring 4 with the proposed mitigation are substantial evidence supporting the county's findings that 5 the proposed measures adequately minimize identified conflicts with antelope winter range. 6 We generally agree. Petitioners cite no evidence that antelope using the winter range rely 7 upon Coyote Well or other local sources of water supported by perched aquifers in the area. 8 That may be the case, but without some evidence to that effect we decline to remand for 9 findings on that issue. Similarly, petitioners cite to no evidence that noises associated with 10 mining activities other than blasting or crushing are likely to drive antelopes away from 11 winter range during cessation periods. 12 The ODF&W letter at Record 1665 concludes that the proposed mitigation is 13 "sufficient" to protect antelope winter range. The letter does state that the agency is 14 "look[ing] forward to reviewing the remaining measures that [intervenor] will put into the 15 ESEE analysis to mitigate the effects of the surface mining activity," but nothing in the letter 16 suggests that the "remaining measures" that ODF&W was looking forward to reviewing 17 related to antelope winter range, or otherwise qualifies the agency's view that the proposed 18 antelope winter range mitigation is "sufficient." ODF&W's opinion on that point is 19 substantial evidence, and petitioners' unsupported preference for more rigorous minimization 20 measures is not a basis for remanding the county's decision. 21 The tenth assignment of error is denied. 22 ELEVENTH ASSIGNMENT OF ERROR 23 OAR 660-023-0180(5)(d) sets out the fmal step in the Goal 5 analysis, requiring that 24 the local government determine, based on significant conflicts that cannot be minimized, the Page 26 1 ESEE consequences of either allowing, limiting or not allowing mining.8 The county 2 applied OAR 660-023-0180(5)(d) to four conflicting uses: the Walker residence, antelope 3 winter range, Highway 20, and agricultural uses, and ultimately concluded based on analysis 4 of the ESEE consequences that "mining should be allowed on the site, subject to certain 5 required measures to minimize conflicts." Record 19. 6 Petitioners contend that the county's analysis of ESEE consequences of allowing 7 mining is inadequate, in a number of particulars. Many of petitioners' arguments under this 8 assignment of error rehash issues raised in earlier assignments of error, involving earlier 9 steps of the Goal 5 process, some of which were resolved in petitioners' favor and others that 10 were not. The issues that were not resolved in petitioners' favor also do not provide a basis 11 to remand the county's findings under the fourth step ESEE process at OAR 660-023- 12 0180(5)(d). The issues that were resolved in petitioners' favor may or may not require 13 modified or additional findings under OAR 660-023-0180(5)(d), depending on how the 14 county responds to our remand of those issues. That is, on remand, the county must adopt 15 amended or additional findings addressing those remanded assignments or subassignments of 16 error. Depending on the conclusions reached in those amended or additional findings, the 17 county may be required to adopt amended or additional findings under its ESEE analysis for 18 purposes of OAR 660-023-0180(5)(d). 8 OAR 660-023-0180(5)(d) provides: "The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, local government shall determine the ESEE consequences of either allowing, limiting, or not allowing mining at the site. Local governments shall reach this decision by weighing these ESEE consequences, with consideration of the following: "(A) The degree of adverse effect on existing land uses within the impact area; "(B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and "(C) The probable duration of the mining operation and the proposed post -mining use of the site." Page 27 1 Under these circumstances, we see no purpose in resolving petitioners' challenges to 2 the county's existing findings addressing OAR 660-023-0180(5)(d). Accordingly, we do not 3 reach the eleventh assignment of error. 4 TWELFTH ASSIGNMENT OF ERROR 5 The twelfth assignment of error concerns the county's analysis of the ESEE 6 consequences from allowing mining to the Walker residence, which is located 2,300 feet 7 away from the mining site across Highway 20. Petitioners challenge the county's evaluation 8 of noise and dust impacts on the dwelling under OAR 660-023-0180(5)(d). Because no other 9 sustained assignment of error has involved impacts to the Walker residence, we see no reason 10 to delay or defer consideration of the arguments in this assignment of error. 11 A. Noise Impacts 12 The county concluded that noise from the mining operation will be "minimized by the 13 existence of Highway 20," and by the fact that the mining operation will occur below grade. 14 9 Petitioners challenge those conclusions, arguing that the highway noise will not mask the 15 mining operation noise, but rather that both sources of noise will stack on each other to 16 cumulatively increase the ambient noise. Further, petitioners note that the first phases of the 17 mining operation will necessarily occur above grade. 18 Intervenor argues that it submitted expert evidence as to the projected noise impact 19 on nearby uses, which petitioners do not challenge, concluding that at a distance of 1,500 feet 20 noise from the crusher would not rise above ambient noise levels. Record 343-44. 21 Petitioners cite to no contrary evidence. Petitioners also cite to no evidence that noise from 22 the highway and mining operation would "stack." We agree with intervenor that petitioners' 9 The county found, as follows: "* * * Although the ambient noise levels should not increase with the operation of the surface mine, it is likely that there will be noise from the site itself. However, this is minimized by the existence of Highway 20, lying between the Walker residence and the proposed mining operation, which will occur below grade." Record 17. Page 28 1 arguments regarding noise impacts on the Walker residence do not provide a basis for 2 remand. 3 B. Dust Impacts 4 The county found that intervenor will use water to minimize any dust impacts on the 5 Walker residence and further noted evidence that dust has not been an issue with intervenor's 6 other crushing sites, including two that occur within urban growth boundaries.10 7 Petitioners dispute those findings, arguing that comparison with intervenor's other 8 mining sites on which only crushing occurs is not sufficient, because it fails to account for 9 dust associated with the excavation and blasting that would also occur at the subject site. 10 Citing to photographs in the record, petitioners argue that blasting can generate considerable 11 amounts of dust. Petitioners argue that as far as they know water cannot be used to minimize 12 dust generated from blasting, and nothing in the decision or record quantifies or evaluates 13 dust from blasting. 14 Intervenor's entire response consists of the following sentence: 15 "The [county] is well aware of the other sites operated by [intervenor] and it 16 would not be appropriate for LUBA to substitute its judgment for the 17 judgment of the [county] in evaluating the prior performance of the 18 [intervenor]." Response Brief 11. 19 We do not understand the response, other than perhaps as a general assertion that the 20 challenged finding is supported by substantial evidence. Intervenor does not dispute 21 petitioners' assertions that the decision does not evaluate dust from blasting, that blasting 22 generates significant amounts of dust, that water cannot be used to control dust from blasting, 10 The county found, in relevant part: "Dust could also have an impact on the Walker residence. The degree of impact will depend upon the conditions imposed on any surface mining that would occur. The Applicant has a water right and will be able to utilize water to minimize dust, especially during crushing. There is evidence that the Applicant has other existing crushing sites within Central Oregon and that fugitive dust has not been an issue in the operation of these sites, even though two of them occur within urban growth boundaries." Record 17. Page 29 1 and that the comparison sites the county refers to do not involve excavation and blasting. 2 Those assertions may or may not be correct, but without some assistance from intervenor it is 3 difficult to agree with intervenor that the challenged finding is adequate and supported by 4 substantial evidence. 5 OAR 660-023-0180(5)(d) requires the county to evaluate the ESEE consequences of 6 allowing mining on those conflicts that cannot be minimized under OAR 660-023- 7 0180(5)(c), under three additional listed considerations, including any "[r]easonable and 8 practicable measures that could be taken to reduce the identified adverse effects." See n 8. 9 As far as we can tell, the county did not evaluate dust generated by blasting, or determine if 10 such conflicts with the Walker residence can be minimized or reduced. It may be, as 11 petitioners suggest, that there are no reasonable and practicable measures to minimize or 12 foluge fadVeMgats on s � G )rraidenegts its =1 y t g-gi neralsd>:dust in which. 13 case the ESEE analysis must consider those impacts in weighing whe$.heticitallow, limit or 14 prohibit mining. However, the county's ESEE findings on this point apparently did not 15 consider or evaluate that source of dust. Accordingly, we agree with petitioners that remand 16 is necessary to consider the issues raised under this subassignment of error. 17 The twelfth assignment of error is sustained, in part. 18 CONCLUSION 19 In this opinion we have sustained all or part of the second, sixth, eighth, ninth and 20 twelfth assignments of error and denied the remainder, with the exception of the eleventh 21 assignment of error, which we did not resolve. On remand the county must conduct 22 additional proceedings that may, if the county deems it necessary, include introduction of 23 new evidence, and adopt amended or additional findings addressing the remanded issues. As 24 noted above under the eleventh assignment of error, depending on how the county resolves 25 the remanded issues under the earlier steps of the Goal 5 process, the county may also be Page 30 1 required to adopt amended or additional findings under the ESEE analysis required by 2 OAR 660-023-0180(5)(d). 3 The county's decision is remanded. Page 31 ESEE FINDINGS AND DECISION SAGE GROUSE SITE DE 0999-01 - Millican Pit 1. Inventory. 54.6e&re) SFF 1✓' 1(CcaK V4 L For o h h j Uu,vLe 2 The Oregon Department of Fish and Wildlife (ODFW) has identified a Sage Grouse lek in Township 19S, Range 14E, Section 26 SESE (map number 19-14-00-2200). The ODFW identifier for the site is DE 0997-01. The site is also known as Millican Pit. The sensitive habitat area includes the area within a 1/4 mile radius of the lek site. The quarter mile sensitive habitat area is necessary to buffer the lek site and protect the habitat used by the birds for day roosting and cover during the mating season. The habitat site and sensitive habitat area are designated on a map attached as Exhibit "A". Sage grouse inhabit the sagebrush -grass areas in the eastern portion of the county. The population of sage grouse has shown considerable fluctuation over the years. The Bureau of Land Management estimates that the current population of adult birds in Deschutes County is 275. The Oregon Department of Fish and Wildlife in a 1992 report estimated the population as 775. Areas of particular concern for the sage grouse are the strutting grounds, known as leks. Strutting grounds are flat areas with vegetation less than six inches high on which the males exhibit a breeding display called strutting to attract the females. 2. Site Characteristics. The lek site is used by the sage grouse for strutting display and mating grouse from February 1 through April 30 with the peak of activity in March and April. The lek is located on a state owned parcel that is zoned for surface mining (SM, Site #498). The area around the surface mine site is zoned Exclusive Farm Use (EFU) and Surface Mining Impact Area (SMIA) and Landscape Management Combining zone (LM). The minimum lot size for the area is 320 acres. There are portions of two Bureau of Land Management tax lots within the sensitive habitat area. South of the lek site there is an unrecorded subdivision with about 60 mostly 10 acre lots. This area is zoned EFU and Flood Plain (FP). Portions of two of these 10 acre tax lots are within the quarter mile sensitive habitat area. 3. Conflicts Identification. Potentially Conflicting Uses With Habitat Site Zone Permitted Use Conditional Use EFU -Farm use -Single family ESEE Findings and Decision - DE 0999-01 Page 1 -Forest use - Exploration for minerals -Some road construction Zone Permitted Use dwelling -Residential homes -Private park, campground -Personal use airstrip - Home occupation -Process forest products -Solid waste disposal site -Storage, crushing, processing of aggregate - Church or school -Certain road projects -Bed and breakfast Conditional Use FP -Farm use (no structure) - Forest management - Open space Zone Subject to Site Plan -Road or bridge -Single family dwelling -Agricultural accessory buildings -Recreation Uses Conditional Uses SM -Extraction of minerals -Storage of minerals -Screening, washing - Structures necessary for extraction, storage -Geothermal exploration -Crushing - Batching asphalt concrete Sage grouse depend on large areas of undeveloped rangeland habitat. Conflicts with sage grouse habitat are reduced by the limitations on uses in the exclusive farm use zone, by the 320 acre minimum lot size, and by the predominance of Bureau of Land Management land throughout their range. However, because of their sensitivity and importance, the sage grouse leks or strutting grounds need additional protection. Uses conflicting development which breeding season, area which could vegetation within for roosting and road construction, surface mining, or any construction activity, structural development and associated use of structures within 1320 feet of the lek. with the leks are any activity or would interfere with the lek during the disturb or occupy the ground in the lek displace the birds, or destroy the the sensitive habitat area the birds use cover. These activities could include The primary conflict at this site is potential surface mining or mineral processing on the site zoned for surface ESEE Findings and Decision - DE 0999-01 Page 2 mining. Because the lek and sensitive habitat area are remote, it is unlikely that a church or school would be sited within the sensitive habitat area. Residential development on two lots within the sensitive habitat area is a possible conflict. Although the 60 lot subdivision is mostly outside of the sensitive habitat development of these 5 acre lots would alter the vegetation used as cover and roosting habitat and introduce conflict with noise, traffic and dogs. Agriculture is a permitted use in the exclusive farm use zone. Grazing is the principal agricultural use in the sensitive habitat area. Grazing during the mating season can disrupt the breeding cycle. The Bureau of Land Management works with the grazing permitees to minimize the grazing conflicts with the sage grouse leks during the breeding season. Another potential conflicting use is recreational off-road vehicle use because it fragments habitat and can disrupt the birds during the breeding season. However, ODFW reports that, at this time, there is not a problem with off-road vehicle use at this site. The Bureau of Land Management has a seasonal off-road vehicle closure from March 15 through September 1 south of Highway 20. A private park or campground would be a conflicting use because it would attract people and vehicles and alter the landscape. 4. Economic, Social, Environmental and Energy Consequences Analysis. (A) Economic Consequences Surface mining costs could increase if the surface mining activities are restricted during the season the lek is in use. The amount of material available form the site might be reduced if the extraction of minerals would alter the characteristics of the site. Restricting structural development on the EFU zoned land within one quarter mile of the lek would have a negligible economic effect because most of the land is BLM and structural development is not anticipated in the BLM management plans for the area. The economic consequences to the owners of the two private tax lots (19-14-35-101 and 19-14-35-100) to the south of the lek would be minor because nonfarm residential development could occur outside of the sensitive habitat area on the two private lots. ESEE Findings and Decision - DE 0999-01 Page 3 Residential development would also be restricted by the LM, SMIA and FP zones. Limiting the development of parks or campgrounds would have a negligible economic consequence as there are numerous private and public recreational facilities throughout the county. Maintaining lek sites and sensitive habitat area will help assure that the species does not become a federally threatened and endangered species. Should this happen, the protection criteria would be much more restrictive around the remaining lek sites. (B) Social Consequences The social consequence of allowing unregulated conflicting uses could be the abandonment of the lek site which would be be a loss to the segment of society that enjoys viewing wildlife. The positive social consequences of limiting conflicting uses would be continuing opportunities for naturalists and bird watchers to study and enjoy the birds. Structural development within the sensitive habitat area could be prohibited with little social consequence as owners have the potential to develop their properties outside of the quarter mile sensitive habitat area. Residential development is a conditional use and is also subject to the SMIA and LM site plan requirements. (C) Environmental Consequences The environmental consequences of allowing unregulated conflicting uses could be the destruction of the characteristics which make the lek desireable to the birds which could cause abandonment of the site and failure of breeding and reduction in the sage grouse population. There are no identified negative environmental consequences of prohibiting conflicting uses. (D) Energy Consequences There are no identified significant energy consequences from either permitting or limiting conflicting uses. 5. Program To Meet Goal 5. The Board of County Commissioners finds that, based on the ESEE consequences, both the resource site and the conflicting uses are important relative to each other and that the ESEE consequences should be balanced to allow conflicting uses in a limited way (OAR ESEE Findings and Decision - DE 0999-01 Page 4 660-16-010(3)). In order to protect both the lek and the sensitive habitat area and allow limited conflicting uses, the following restrictions shall apply: 1. Site plan review under the Sensitive Bird and Mammal Habitat Combining zone shall be required for all land uses within the sensitive habitat area requiring a land use permit. 2. Structural development within the quarter mile sensitive habitat area shall be prohibited because there are alternative locations for structures outside of the sensitive habitat area. 3. Partitions creating a residential building site within the sensitive habitat area shall be prohibited. 4. The amended ESEE analysis for the surface mine (Site #494) identifies the lek as a conflicting use and requires consultation with ODFW prior to operation or expansion of the site to determine what specific requirements are necessary to protect the lek from surface mining conflicts. ESEE Findings and Decision - DE 0999-01 Page 5 L oo NN\ :• •••-' II - _ - - ' - '."ii-- .--- ..,•'-'------.. --..__. Dye r 4223We11. ini 'a---, ., _, _ .,.. •.,2-• ___:: ----,-,--7:-.3,,:,,, . \.,_-_------------,-,::„N... `.., -. •••: - ,-, _ a , ' .:•-.....,, s'.------,-, ...---.:--,... -..,, , , `....1....._...:•'‘ ' . , -'''N' . 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