HomeMy WebLinkAbout2008-01-14 Work Session MinutestES
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, JANUARY 14, 2008
Present were Commissioners Dennis R. Luke and Michael M. Daly; Commissioner
Tammy Baney was out of the office. Also present were Dave Kanner, County
Administrator; Tom Anderson, Dan Haldeman and Barbara Rich, Community
Development; Doug White, DLCD; Dan Peddycord, Health Department; Laurie
Craghead, Legal Counsel; Anna Johnson, Communications; David Inbody,
Assistant to the County Administrator; approximately twenty other citizens; and
media representative Hillary Borrud of The Bulletin.
Chair Luke opened the meeting at 1:30 p.m.
Dave Kanner stated that the State has made a declaration of a public health hazard
in southern Deschutes County. Under State law, there are two different definitions
of a public health hazard. (He provided a handout with this information.)
The DEQ has made the declaration under DLCD's definition, not the DEQ
definition. LCDC is the governing body over DLCD. This has set off a chain of
events. (He referred to a chart at this time.)
DEQ has to do four things: make a declaration that a public health hazard exists;
declare that there is inadequately treated sewage; identify the physical location;
and a finding of there being no practical alternative, such as installing a sewer
system. DEQ would take the map and not make that declaration of no alternative
if a group of property owners comes in and wants to develop a sewer, at which
time DEQ would map the area and make that determination.
Commissioner Luke asked how a State agency could make a sweeping declaration.
Laurie Craghead asked about the application of Goal 11, which is a land use
decision.
Minutes of Administrative Work Session Monday, January 11, 2008
Page 1 of 4 Pages
Mr. Kanner stated that it is his understanding that this bypasses Goal 11. Because
DEQ has made the declaration, the County is required to amend land use
regulations to allow sewering outside existing UGB's. Tom Anderson added that
technically it does not bypass Goal 11; just a Goal 11 exception. It is still under
the auspices of Goal 11 in a different section.
Commissioner Luke said he would like to know how they could do this without a
public hearing. Dan Peddycord stated that this would be done under the auspices
of an administrative order, which gives them the authority. He would not be able
to put out quarantine with a public hearing. Commissioner Luke said that this may
not be imminent, but is probable and is very broad - based.
Mr. Kanner stated that what happens now is neither the County nor DEQ has to
take action on a sewer system, and are not required to approve one if it is
requested. This allows a group of property owners to come together to present a
sewer as a practical alternative. It has to be initiated by citizens.
Commissioner Daly asked if no one responds, does the DEQ step in. Mr. Kanner
said that the County has to adopt the local rule or the State can step in. They have
said repeatedly at public meetings that doing nothing is not an option. The County
and State will not go through the mapping process until citizens form a sewer
district or vote on expanding an existing sewer district; this cannot be done on
speculation alone.
Laurie Craghead said that there has to be a determination that the land can be
served by a sewer. Mr. Kanner stated that this applies to all of southern Deschutes
County. Commissioner Luke asked if the date shown in the letter, July 28, 1998, is
significant. Barbara Rich replied that it must be tied to some amendment to Goal
11. Ms. Craghead noted that forming a district is a land use decision and must be a
finding of the Board so that it complies; along with whether the area can be served
by a sewer district.
Mr. Kanner said there could be a question of timing. The County is now required
to amend land use Code and the Comprehensive Plan to allow for sewering in an
area where they have declared a public health hazard. He added that the plan
update would affect the whole area wherever the DEQ has determined there is a
public health hazard. That includes all of southern Deschutes County, but not all
areas would be eligible for sewering. This would be a case -by -case decision as
people come together and ask for a sewer system, if there is no other practical
alternative. They have to have a place to spread the effluent, how it all will be paid
for, and so on. It would require at least two public hearings.
Minutes of Administrative Work Session Monday, January 11, 2008
Page 2 of 4 Pages
Mr. Kanner stated that if two properties share a system, DLCD says it is a sewer
system. An expedited land use process has been requested, but he does not think
there is such a thing. The process and timelines are spelled out in Code and State
law.
Ms. Craghead stated that before the letter, citizens said that Goal 11 should not
apply. The letter gives them an alternative route. Mr. Anderson said that there
have to be no alternatives. Then a decision needs to be made as to where it could
go. Undeveloped lots would be included, and there could be certain conditions
when red lots might be included. Once these come to the County, there will have
to be changes to accommodate it. They will work closely with DLCD so the
County is properly interpreting State land use rules.
Commissioner Daly said that establishing feasibility means hiring engineers and
spending money, and asked if the burden would fall on the people who want the
district. Mr. Kanner stated that they would have to create a special district at a
general election. DEQ envisions the formation of a sewer district as the County
making the mapping decision and the DEQ working with the County. He added
that they would have to consider the area that is specifically mapped, as the
findings need to be narrow.
Mr. Anderson said that nothing prescribes the size of the district. The law says the
sewer has to treat an existing problem. Red lots could be included in that district.
DLCD has to determine how many and where they would be located, and has to be
directly involved to interpret State law. Ms. Craghead stated that State law says
the lots do not have to be contiguous. Unlike road districts, they can leapfrog.
Mr. Anderson said that the DEQ has committed to recommending the physical
configuration. The citizens have to take the first step.
Commissioner Luke suggested that perhaps a test case could be done to figure out
how difficult and expensive it might be. Commissioner Daly stated that in some
places, it might make sense, but there is a huge cost for assessing feasibility. Some
groups may decide that it is too much money.
After a brief discussion of the election process, it was decided that another work
session should be scheduled to discuss this further prior to January 30.
Minutes of Administrative Work Session Monday, January 11, 2008
Page 3 of 4 Pages
Being no further discussion, the meeting adjourned at 2:30 p.m.
DATED this 14th Day of January 2008 for the Deschutes County Board
of Commissioners.
ATTEST:
Recording Secretary
ichael M. Daly, Chai
7
Dennis R. Luke, Vice Chair
Tammy Baney, Commissioner
Minutes of Administrative Work Session Monday, January 11, 2008
Page 4 of 4 Pages
{ Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
WORK SESSION AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
1:30 P.M., MONDAY, JANUARY 14, 2008
1. Meet with CDD staff regarding DEQ Letter sent to the Board of Commissioners
dated 1/4/08 — Dave Kanner
PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real
property negotiations; ORS 192.660(2) (h), pending or threatened litigation; or ORS 192.660(2) (b), personnel issues
Meeting dates, times and discussion items are subject to change. All meetings are conducted in the Board of Commissioners' meeting rooms at
1300 NW Wall St., Bend, unless otherwise indicated.
If you have questions regarding a meeting, please call 388 -6572.
Deschutes County meeting locations are wheelchair accessible.
Deschutes County provides reasonable accommodations for persons with disabilities.
For deaf, hearing impaired or speech disabled, dial 7 -1 -1 to access the state transfer relay service for TTY.
Please call (541) 388 -6571 regarding alternative formats or for further information.
Meeting Topic:
(Please Print)
Name
Mailing Address
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Residence j Work
City Zip Phone # Phone #
z7SO/X'11.--C,
DAIL)�,�4i X00
Page # of Pages
11
Date: V/Y/o/
Fax # e -mail address
t
DEQ Actions & Deschutes County Responsibilities
Sewer Service to Rural Lands (OAR 660 - 011 -060)
(7) Provide notice to
Co. to participate in
determinations
(4aA) Health hazard
exists (declaration)
(4aB) Hazard caused
by sewage (x5_1998)
(4aC) Identify
physical location
(4aD) No practicable
alternatives to sewer
_=*
(5) Determine
most practicable
sewer
(6) De'.
affected ar
to be se
by se
lots and
parcels
contributing to
Sewer Permitted
(5A) Determine
system suitable to
abate public health
hazard
bE,F) Adopt plan
one amendments
nsuring only rural
land uses on rural
Sands. No higher
kesidential densities
are allowed
(68) Identify
adjoining lots
and parcels
also requiring
sewer
(4bC,D) Adopt land
use regulations
ensuring sewer
minimum necessary
for affected area.
Sewer prohibited
outside area.
Wastewater Treatment Options for So. Deschutes Count
Retrofit Approach
DESCHUTES CO.
STARTS HERE
' Adopt local rule I
APPLICANT
STARTS HERE
1
Submit a
construction and
installation permit
to retrofit existing
onsite system
Retrofit Permitted
Goal 11 (DLCD) health
hazard
I DEQ STARTS
HERE
(7) Provide not re to
Co. to participate
determinations
(5) Determine
most practicable
sewer
(6) Determine
affected area
to be served
by sewer
Sewer Perm; led
(4aA) Health hazard
exists (declaration)
(4aB) Hazard caused
by sewage (xs 1998)
(5A) Determine
system suitable to
abate public health
hazard
(6A) Identify
lots and
parcels
contributing to
health hazard
(4bE,F) Adopt lan r
zone amendrr tits
ensuring only Ural
land uses on .oral
lands. No hit Ter
residential der ,ities
are allowe 1
(4aC) Identify
physical locatio-•.
DESCHUTES CO.
STARTS HERE
(6B) Identify
adjoining lots
and parcels
also requiring
sewer
(4aD) Ne practicable
alternatives to sewer
(4bC,D) Adop land
use regutat► ns
ensunng se ier
minimum nect asary
for affected ea.
Sewer prohil ited
youtside art 3.
Goal 11 Exception
APPLICANT I
STARTS HERE
Ji
(9a) Demonstrate
new system or
extension of an
existing system is
necessary tc avoid
imminent and
significant health
hazard that would
result if sewer not
provided
(9b) Demonstrate
no practicable
alternatives to
sewer
Hold public
hearing with
Planning
Commission
rNotify affected
L property owners
DESCHUTES CO.
STARTS HERE
tf burden proof
meets criteria 9a,
9b and Goal 2.
recommend
adoption
BOCC ultimately
holds hearing.
BOCC deliberates_
Plan I zone
amendments must
ensure sewer only
serves uses or
areas justified in the
exception
Sewer
Permitte
if
BOCC
agrees ar 1
adopts
ordinance
regon
Theodore R. Kulongoski, Governor
January 4, 2008
Deschutes County Board of Commissioners
1300 NW Wall Street, Suite 200
Bend, Oregon 97701
RE: Application of Goal 11 to South Deschutes County
Dear Commissioners:
Department of Environmental Quality
811 SW Sixth Avenue
Portland, OR 97204 -1390
503 -229 -5696
TTY: 503 -229 -6993
For many years now the Department of Environmental Quality (DEQ), the Department of Land
Conservation and Development (DLCD), the United States Geological Service (USGS) and
Deschutes County have been addressing groundwater pollution concerns in the South
Deschutes County area. We believe these concerns are first and foremost a public health issue
rather than a land use planning issue. The area was platted into many subdivisions back in the
late 60's and early 70's before a comprehensive land use planning program was established,
which included Statewide Planning Goal 11.
Based on the summary and conclusions of the recently released USGS report 2007 -5237
entitled "Evaluation of approaches for managing nitrate loading from on -site wastewater
systems near La Pine, Oregon" and along with DLCD's definition of a "public health hazard," 1
DEQ requests that Deschutes County, in coordination with DLCD, establish in South Deschutes
County the areas in and around the tax lots delineated on Deschutes County maps titled
"Sources of Sewage Contributing to Health Hazard" 2 dated December 19, 2007, as areas that
may be eligible for sewer systems. Eligibility is primarily based on a determination by DEQ that
there is no practicable alternative to a sewer system in order to abate the public health hazard.
This request is in accordance with Oregon Administrative Rule (OAR) Chapter 660, Division 11,
Section 0060 (Sewer Service to Rural Lands), where a DEQ determination of a Public Health
Hazard negates the need for an exception to Goal 11. Under the Goal 11 rules, specifically OAR
660 - 011 -0060 (4) (a) (A), (B), (C), and (D), the DEQ is required to:
1. Determine that a public health hazard exists in the area;
2. Determine that the public health hazard is caused by sewage from development
that existed in the area on July 28, 1998;
OAR 660 - 011 - 0060(1) (d) defines a "Public health hazard" as a "....condition whereby it is
probable that the public is exposed to disease - caused physical suffering or illness due to the
presence of inadequately treated sewage;"
2 The maps titled "Sources of Sewage Contributing to Health Hazard" dated December 19,
2007, may not include all of the sources of sewage. Therefore, this map as well as other maps
referenced in this letter are considered as "work in progress documents" and may need to be
modified over time.
Application of Goal 11 in South Deschutes County
January 4, 2008
Page 2 of 4
3. Describe the physical location of the identified sources of the sewage contributing
to the public health hazard; and
DEQ has determined that conditions that exist under items 1 and 2, above, have
been satisfied as documented in the USGS report 2007 -5237. Deschutes County
maps titled "Sources of Sewage Contributing to Health Hazard ", which show the
physical location of the identified sources of the sewage contributing to the public
health hazard satisfies item 3. This information was compiled based on information
obtained by the County on the location of dwellings and information from WPCF-
Onsite permits issued by DEQ in Deschutes. County. Other maps prepared by the
County identify sources that existed in the area prior to July 28, 1998.
4. Determine that there is no practicable alternative to a sewer system in order to
abate the public health hazard.
To address the effects of nitrogen and other pollutants from onsite wastewater
treatment systems on the quality of ground water in the South Deschutes County
area, DEQ has determined that a variety of approaches are needed to properly
manage wastewater pollutants and nitrate loading, including individual onsite
wastewater treatment systems and various types of community sewer systems. In
some locations within the area, DEQ believes the use of various types of community
sewer systems are a better long term solution. Therefore, within or near the tax lots
delineated on Deschutes County maps titled "Sources of Sewage Contributing to
Health Hazard" as sources contributing to the public health hazard, DEQ intends to
make the determination required under item 4. This will be done on a case -by -case
basis when information has been presented to DEQ demonstrating that there is no
practicable alternative to a sewer system in order to abate the public health hazard
for that specific area, lot, parcel, or group of parcels or Tots. The property affected by
DEQ's determination will be clearly identified and presented to Deschutes County
and DLCD's regional representative in a timely manner. At the time the
determination is presented, DEQ would have satisfied all four conditions required by
OAR 660- 011- 0060(4) (a) for the area so identified and our responsibility for
providing affected local governments and special districts notification of the
determination as required by OAR 660- 011 - 0060(7).
In accordance with OAR 660 - 011 - 0060(4) (b), and based on recommendations by DEQ,
Deschutes County and other public sanitary sewer authorities are required to:
1. Determine the type of sewer system and service to be provided;
2. Determine the boundaries of the sewer system service area, pursuant to OAR 660-
011- 0060(6);
DEQ considers items 1 and 2 as primary and necessary in protecting public health in
the area and determinations can be made using the Nitrate Loading Management
Model (NLMM) developed as a management tool by the USGS. Upon the
determination required by DEQ under OAR 660- 011 - 0060(4) (D) that there is no
practicable alternative to a sewer system in order to abate the public health hazard,
DEQ will provide the county with recommendations as to the type of sewer system to
be provided and the boundaries of the sewer system service area. The boundaries
Application of Goal 11 in South Deschutes County
January 4, 2008
Page 3 of 4
of the sewer system service area delineated by DEQ will include: (1) lots or parcels
that contain the identified sources of the sewage contributing to the health hazard for
that area; and (2) lots or parcels that are surrounded by or abut the contributing lots
or parcels where, due to soils, insufficient lot size, or other conditions, there is a
reasonably clear probability that onsite systems installed to serve uses on such lots
or parcels will fail and further contribute to the health hazard (OAR 660- 011 - 0060(6)).
3. Adopt land use regulations that ensure the sewer system is designed and
constructed so that its capacity does not exceed the minimum necessary to serve
the area within the boundaries;
4. Adopt land use regulations to prohibit the sewer system from serving any uses
other than those existing or allowed in the identified service area on the date the
sewer system is approved;
5. Adopt plan and zone amendments to ensure that only rural land uses are allowed
on rural lands in the area to be served by the sewer system, consistent with Goal
14 and OAR 660- 004 -0018, unless a Goal 14 exception has been acknowledged;
6. Ensure that land use regulations do not authorize a higher density of residential
development than would be authorized without the presence of the sewer system;
and
7. Determine that the system satisfies ORS 215.296(1) or (2) to protect farm and
forest practices, except for systems located in the subsurface of public roads and
highways along the public right of way.
At the time DEQ makes the determination that there is no practicable alternative to a
sewer system in order to abate the public health hazard, DEQ will be available to
assist and provide recommendations to Deschutes County in satisfying the land use
planning requirements specified under items 3 through 7, above. DEQ has already
requested that DLCD assist the County in developing the necessary land use
provisions to implement these items.
In accordance with OAR 660 - 011 - 0060(5), Deschutes County, based on recommendations from
DEQ, shall determine the most practicable sewer system to abate the health hazard based on
the following:
1. The system must be sufficient to abate the public health hazard pursuant to DEQ
requirements applicable to such systems; and
2. New or expanded sewer systems serving only the health hazard area shall be
generally preferred over the extension of a sewer system from an urban growth
boundary. However, if the health hazard area is within the service area of a
sanitary authority or district, the sewer system operated by the authority or
district, if available and sufficient, shall be preferred over other sewer system
options.
At the time DEQ makes the determination that there is no practicable alternative to a
sewer system in order to abate the public health hazard, DEQ will provide the County
with recommendations as to the sufficiency of the sewer system to abate the public
health hazard and whether it is more feasible to obtain sewer service from an
existing sewer service provider.
Application of Goal 11 in South Deschutes County
January 4, 2008
Page 4 of 4
With the assistance from DLCD, DEQ also requests that Deschutes County expedite all
planning requirements specified above in order to allow, in conjunction with the individual onsite
wastewater treatment systems, the use of community sewer systems, extension of existing
sewer systems, and use of smaller "cluster systems" within or near the tax lots delineated on
Deschutes County maps titled "Sources of Sewage Contributing to Health Hazard ", as satisfying
OAR 660 - 011 - 0060(4) (A), (B) and (C), and within the specific areas as further determined by
DEQ as satisfying OAR 660 - 011 - 0060(4) (D).
DEQ views the determinations described above and as later defined in more detail, and the
County's quick response to that determination, as positive steps towards the protection of
groundwater in South Deschutes County. We request an accelerated land use process from the
County and DLCD when implementing future determinations for sewer systems.
We understand that there will be further aspects of this process that will require additional work,
refinement, clarification and coordination. However, we also believe this is the most efficient
way to work through this particular issue under the current land use regulations. We also
understand that the determinations made by DEQ that sewer systems are more practicable
raises other issues and questions not fully explored. We stand committed to helping Deschutes
County, DLCD and the citizens in South Deschutes County sort through those matters.
If you have any questions concerning this designation and request for action, please contact
Joni Hammond, DEQ's Interim Deputy Director at (503) 229 -5332.
Sincerely,
Dick Pedersen
Interim Director
cc: Joni Hammond, DEQ — Portland
Bob Baggett, DEQ — Bend
Mike Kucinski, DEQ — Roseburg
Richard Whitman, DLCD — Salem
Jon Jinings, DLCD — Bend
Doug White, DLCD — Bend
Darren Nichols — DLCD La Grande
Tom Anderson, Deschutes County Community Development Director
Katherine Morrow, Deschutes County Planning Director
AN 1 0 2008
BOARD O F COMMIS LONERS