HomeMy WebLinkAboutOrdinance 018 - Hydroelectric FacilitiesDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of July 30, 2008
Please see directions for completing this document on the next page.
DATE: July 28, 2008
FROM: Cynthia Smidt Community Development Department 317-315(1
TITLE OF AGENDA ITEM:
Continuation of a Public Hearing and Consideration of First and Second Readings and Adoption, by
Emergency, of Ordinance 2008-018 Amending Title 18, of the Deschutes County Code Zoning
Ordinance Deschutes County Code Chapter 18.48 to permit hydroelectric facilities in the Open Space
and Conservation Zone.
PUBLIC HEARING ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATIONS:
As previous explained.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Staff recommends the Board continue the public hearing, review amended text, and conduct the first
and second readings and adopt, by emergency, Ordinance 2008-018.
ATTENDANCE: Cynthia Smidt
DISTRIBUTION OF DOCUMENTS:
Cynthia Smidt
Community Development Department
Planning Division Building Safety Division Environmental Health Division
A
117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
STAFF REPORT
TO: Deschutes County Board of County Commission
FROM: Cynthia Smidt, Associate Planner
HEARING DATE: July 21, 2008
SUBJECT: Public Hearing for Open Space and Conservation Zone Text Amendment;
TA -08-4
The Deschutes Board of County Commissioners (Board) will hold a public hearing on July 21,
2008, at the Deschutes Services Center, starting at 10:30 a.m. The Commissioner's will
consider a text amendment initiated by Central Oregon Irrigation District (COID) and Swalley
Irrigation District (SID) for the Deschutes County Code (DCC), Chapter 18.48, Open Space and
Conservation (OS&C) Zone, Section 18.48.020, Uses permitted outright. A work session was
held on June 25, 2008 to present the proposed amendment and answer the Board's questions.
The purpose of this public hearing is to listen to public testimony and consider the proposed
text, or direct staff to make changes and approve the text amendment.
BACKGROUND
Central Oregon Irrigation District and Swalley Irrigation District have proposed an amendment to
the Deschutes County Code that would permit hydroelectric facilities on existing irrigation
systems (piped canals) in order to develop sustainable energy production in Deschutes County.
The Planning Commission held one work session and one public hearing on the proposed text
amendment. There were no public comments at the hearing; however, the U.S. Forest Service
did submit written comments. The Planning Commission listened to testimony by COID and
SID representatives, as well as their attorney.
Currently, in the OS&C Zone, hydroelectric facilities are not permitted. Utility facilities, however,
are permitted conditionally but, as defined, do not include hydroelectric facilities. Within
Deschutes County, the applicant indicates two locations in which significant elevation change
together with water velocity would allow for small-scale hydroelectric facilities on piped irrigation
canals. There is a site-specific area in each district's, COID and SID, canal system. The two
designated locations are within the OS&C Zone; therefore, necessitating the proposed
amendment to that zone. There are other locations in the COID system that may work for
hydropower but the location specified here "has the volume and gravitational drop that warrants
the cost of piping and turbine purchase and line at this time." The hydro facilities will be
established entirely within the irrigation district's easement and within existing piped irrigation
canals that are screened at the intake and thus preventing fish entry and harm. The turbines
Quality Services Performed with Pride
used are designed -specific to flow levels and do not result in an accumulation of or stored
water. Temporary powerlines will be in place for approximately three to four years until
PacifiCorp installs permanent lines. Oregon Department of Water Resources (ODWR)
regulates hydroelectric facilities, which are further administered by OAR 690 and ORS 537.
According to the applicant, this text amendment only refers to those projects permitted under
ORS 537.765. Power facilities with a generation capacity of 10 megawatts of power or less are
considered small-scale generation. The COID hydropower project will generate approximately
3/4 to 1 megawatt of power and the SID project will generate about 3 megawatts. Additional
State and Federal laws such as Department of Environmental Quality (DEQ) and the Clean
Water Act, respectively also bind hydropower facilities including the two proposed here.
Oregon Statewide Planning Goal 13, Energy Conservation, Oregon's Energy Policy (ORS
469.010), and the 2007 Senate Bill 838 (Oregon Renewable Energy Act) were all intended to
promote the efficient use of energy resources and develop sustainable energy resources. State
law allows local jurisdictions to implement such energy facilities for the needs of the rural area
served. It is found in the Oregon Renewable Energy Act (SB 838) that it is necessary for
Oregon to decrease the reliance on fossil fuels for electricity and increase the use of renewable
energy sources.
Background information and staff reports on the record to date, can be found at the County
website www.deschutes.orq/cdd under pending code amendments.
STATEWIDE PLANNING GOALS
The proposed amendment would revise Deschutes County Code, Title 18, to permit
hydroelectric facilities on existing piped irrigation systems as a use permitted outright in the
OS&C Zone. For purposes of this discussion, the proposed amendments would satisfy
Statewide Planning Goals. Goal 3, Agricultural Lands, and Goal 4, Forest Lands, were
reviewed and determined to be satisfied by permitting hydroelectric facilities on existing
irrigation systems. Satisfaction of Goal 5, Open Spaces, Scenic and Historic Areas and Natural
Resources is discussed below in this report. Goal 6, Air, Water and Land Resource Quality;
Goal 11, Public Facilities and Services; and Goal 13, Energy Conservation would be satisfied by
permitting hydroelectric facilities on existing irrigation systems as a renewable energy source to
serve the electrical needs within the County. Other Statewide Goals such as Goals 8 through
10 and 14 through 19 were reviewed and were found not applicable to this proposal.
Regarding Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources, staff
believes the goal would be satisfied. The proposed small-scale hydroelectric facilities will be
located on existing piped irrigation canals in site-specific areas. The designated sites are
located in segments along Highway 97 between Redmond and Bend that have the OS&C
zoning designation. These areas may have been zoned OS&C to protect scenic mountain
views and/or for the potential of a future state park (campground or day use area). These sites
are outside of federal or state designated scenic waterways. There are no known historic
values assigned to these areas. Staff believes Goal 5 would be satisfied because the proposed
use is minimal in size, thus protecting scenic and open space resources. Additionally, fish and
wildlife resources are managed and protected at the Irrigation District's water diversion area
located south (up river) from these sites. Furthermore, through the promotion of low -impact
renewable energy such as this it also is a promotion of a healthy environment and natural
landscape. In conclusion, the proposed use would protect and improve quality of resources
(e.g. air, land, and water).
BOCC Staff Report TA -08-4 Page 2
DESCHUTES COUNTY COMPREHENSIVE PLAN
The Deschutes County Comprehensive Plan contains policies addressing energy resources,
water resources, and open space. Staff believes the proposal would be consistent with the
County's energy goals on protecting natural energy resources and assisting with local energy
supplies. Further the proposal is consistent with the County's open spaces, areas of special
concern and environmental quality goals to maintain and improve the quality of air, water, and
land resources. The text amendment proposed here includes existing irrigation canals located
on OS&C zoned properties along Highway 97 and far from federal and state scenic waterways
as well as other local rivers and streams. The proposal is consistent with maintaining water
quantity and quality as addresses in the County's water resources goals. Staff also reviewed
the proposed text amendment against the County's public facilities and services goal to
determine if the proposal will best serve existing and proposed (urban and rural) development
with "timely, orderly and efficient arrangement of public facilities."
ANALYSIS
Initially, the applicants proposed to amendment the definition of "utility facility" to include
"hydroelectric facility." The County Code specifically excludes "hydroelectric facility" from the
definition. As detailed by staff, state statute regulates "utility facility" in the farm zone thus
changing this definition may make the farm zone not meet statutory requirements. At the June
21 work session, the applicant clarified with Legal Counsel that the proposal was intended to an
alternative option and that the preferred option is to amend the OS&C zone as described below.
Based on this information, staff will not address the idea of changing the definition of "utility
facility."
The text amendment before us will amend DCC Chapter 18.48, Open Space and Conservation
(OS&C) Zone to include hydroelectric facilities on existing irrigation systems as a use permitted
outright (DCC 18.48.020). In most zones, hydroelectric facilities are permitted conditionally
which complies with the County Comprehensive Plan. The Comprehensive Plan (DCC
23.68.020(2)(d)) states, "power generation sites shall be landscaped and the site plan reviewed
as part of the conditional use applications. Reviewing a hydroelectric facility includes the
applicable criteria in DCC 18.116.130, 18.128.015, and 18.128.260. Standards addressed in
DCC 18.116.130, are specific to hydropower on rivers or streams. The proposed site-specific
hydroelectric facilities will occur on existing piped irrigation canals and not on rivers or streams.
Further, the proposed facilities will be located far from rivers and streams within the County.
When reviewing the standards in DCC 18.128.260, most of the language refers to large-scale
hydroelectric projects that will be located on rivers and reservoirs. The criteria include reviewing
the impacts of the associated dams and man-made diversions on existing fish and wildlife
habitat, riparian health, and riverbank stability. Staff believes these criteria were created with
the thought of regulating Targe hydroelectric facilities typically associated with reservoir dams.
Based on information in the record, the proposed hydropower facilities are small in scale and
generate less than 5 megawatts of power each. To be consistent with DCC 23.68.020(2)(d),
staff believes the proposed use should be permitted conditionally. However, standards set in
DCC 18.116.130 are not applicable and the criteria in DCC 18.128.260 are not necessary in
reviewing because they address large hydroelectric facilities. In conclusion, staff believes
hydroelectric facilities on existing irrigation systems should be permitted conditionally in the
OS&C Zone and subject to General Standards Governing Conditional Uses (DCC 18.128.015)
to comply with the County Comprehensive Plan.
BOCC Staff Report TA -08-4 Page 3
PLANNING COMMISSION RECOMMENDATION
At the public hearing on May 8, 2008, the Planning Commission public hearing, testimony was
heard, alternative text were presented, and the Planning Commission recommended approval of
the proposed text amendment without changes to the draft text amendment.
TEXT AMENDMENT
The proposed text amendment outlined in attachment 1 are underlined for new language and
shown as Wigh for deleted language. For purposes of the hearing before the Board,
this is the language proposed by the Planning Commission.
The proposed text amendment will add to the existing code hydroelectric facilities on existing
irrigation systems as a use permitted outright. The hydroelectric facilities would also be
required to obtain all necessary federal and state permits.
REVIEW CRITERIA
The proposed amendment revises Deschutes County Code, Title 18, to permit hydroelectric
facilities on existing piped irrigation systems as a use permitted outright in the OS&C Zone.
Deschutes County Tacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative
zoning text amendment. Therefore, the County must determine that the proposed Title 18 text
amendments are consistent with state statute, the Statewide Planning Goals, and the County's
Comprehensive Plan.
RECOMMENDATIONS
Staff recommends that the Board of County Commissioners;
1. Open the Public Hearing, listen to testimony, discuss, and approve the text
amendments.
Attachments:
1. Ordinance 2008-018 and Exhibits
BOCC Staff Report TA -08-4 Page 4
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Deschutes County Code Chapter
18.48 to permit hydroelectric facilities in the
Open Space and Conservation Zone.
*
*
*
ORDINANCE NO. 2008-018
WHEREAS, on February 13, 2008, Central Oregon Irrigation District and Swalley Irrigation District
submitted an application to amend the Deschutes County Code ("DCC") Chapter 18.48, to allow for
hydroelectric facilities on existing irrigation systems to be permitted outright in the Open Space and
Conservation Zone; and
WHEREAS, the Planning Commission held a public hearing on May 8, 2008, and forwarded to the
Board of County Commissioners ("Board") a recommendation of approval as proposed; and
WHEREAS, the Board considered this matter after a public hearing on July 21, 2008 and concluded that
the public will benefit from changes to the Open Space and Conservation Zone; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 18.48.020, Open Space and Conservation Zone, Uses Permitted
Outright is amended to read as described in Exhibit "A" attached hereto and by this reference incorporated
herein, with new language underlined and language to be deleted in ctrikethrough.
///
PAGE 1 OF 2 - ORDINANCE NO. 2008-018 (07/21/08)
Section 3. FINDINGS. The Board adopts as its findings Exhibit "B", attached and incorporated by
reference herein.
Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
DENNIS R. LUKE, CHAIR
TAMMY (BANEY) MELTON, VICE CHAIR
Recording Secretary MICHAEL M. DALY, COMMISSIONER
Date of 1st Reading: day of , 2008.
Date of 2nd Reading: day of , 2008.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Michael M. Daly
Dennis R. Luke
Tammy (Baney) Melton
Effective date: day of , 2008.
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2008-018 (07/21/08)
Chapter 18.48. OPEN SPACE AND CONSERVATION ZONE - OS&C
18.48.010. Purpose.
18.48.020. Uses Permitted Outright.
18.48.030. Conditional Uses Permitted.
18.48.040. Dimensional Standards.
18.48.050. Setbacks.
18.48.060. Limitations on Conditional Uses.
18.48.010. Purpose.
The purpose of the Open Space and Conservation Zone is to protect designated areas of scenic and natural
resources; to restrict development in areas with fragile, unusual or unique qualities; to protect and improve
the quality of the air, water and land resources and to plan development that will conserve open space.
(Ord. 93-043 §6, 1993)
18.48.020. Uses Permitted Outright.
The following uses and their accessory uses are permitted outright:
A. Farm use as defined in ORS 215.203(2).
B. Public and nonprofit agencies, museums and exhibits on lands where an exception has been granted in
accordance with Oregon Administrative Rules chapter 660, Division 4.
C. Public wildlife reserve or management area, not including structures.
D. Class I and II road or street project subject to approval as part of a land partition, subdivision or subject
to the standards and criteria established by DCC 18.116.230.
E. Class III road or street project.
F. Operation, maintenance, and piping of existing irrigation systems operated by an Irrigation District
except as provided in DCC 18.120.050.
G. Construction, operation, and maintenance of hydroelectric facilities on existing irrigation systems
operated by an Irrigation District, subject to the limitations in DCC 18.128.260, 23.96.030 and
23.112.040, including transmission lines serving such facilities.
(Ord. 2008-018 §1, 2008; Ord. 2001-039 §3, 2001; Ord. 2001-016 §2, 2001; Ord. 97-023 §1, 1997; Ord.
94-041 §1, 1994; Ord. 91-020 §1, 1991)
18.48.030. Conditional Uses Permitted.
The following uses may be allowed subject to DCC 18.128:
A. Private parks, picnic areas or hunting and fishing preserves.
B. Public parks and recreational areas owned and operated by a governmental agency or nonprofit
community organization.
C. Utility facility except landfills.
D. Water supply and treatment facility.
E. Excavation, grading and fill and removal within the bed and banks of a stream or river or in a wetland
subject to DCC 18.120.050 and DCC 18.128.270.
F. Campground.
G. Wireless telecommunications facilities, except those facilities meeting the requirements of DCC
18.116.250(A) or (B).
PAGE 1 OF 3 — EXHIBIT "A" TO ORDINANCE 2008-018 (7/21/2008)
H. Surface mining of mineral and aggregate resources in conjunction with the operation and maintenance
of irrigation systems operated by an Irrigation District, including the excavation and mining for
facilities, ponds, reservoirs, and the off-site use, storage, and sale of excavated material.
(Ord. 2001-039 §3, 2001; Ord. 2001-016 §2, 2001; Ord. 97-063 §3, 1997; Ord. 94-041 §1, 1994; Ord.
92-004 §9, 1992; Ord. 91-038 §1, 1991)
18.48.040. Dimensional Standards.
In an OS&C Zone, the following dimensional standards shall apply:
A. The minimum lot size is 80 acres.
B. Building Height. No building or structure shall be erected or enlarged to exceed 30 feet in height,
except as allowed under DCC 18.120.040.
(Ord. 94-041 §1, 1994; Ord. 92-055 §B, 1992)
18.48.050. Setbacks.
A. Minimum setbacks shall be 60 feet from an arterial or collector street or road right of way and 20 feet
from a street within a platted and recorded subdivision.
B. The setback from a perennial stream or lake ordinary high water mark shall be a minimum of 200 feet,
and from an intermittent stream channel, 100 feet.
C. Each side setback shall be a minimum of 15 feet, except on a corner lot it shall be 30 feet from the street
side.
D. The setback from the north lot line shall meet the solar setback requirements in DCC 18.116.180.
E. Rimrock Setback. Setbacks from rimrock shall be as provided in DCC 18.116.160.
F. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or
structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met.
(Ord. 95-075 §1, 1995; Ord. 94-008 §28, 1994; Ord. 91-020 §1, 1991; Ord. 86-053 §10, 1986; Ord. 83-037
§13, 1983)
18.48.060. Limitations on Conditional Uses.
The following limitations shall apply to a conditional use in an OS&C Zone:
A. An application for a conditional use in an OS&C Zone may be denied if, in the opinion of the Planning
Director or Hearings Body, the proposed use is not related to or sufficiently dependent upon the
recreational resources of the area.
B. The proposed use shall not significantly increase fire hazard or significantly increase risks to fire
suppression personnel. The Planning Director or Hearings Body may require establishment and
maintenance of fire breaks, the use of fire resistant materials in construction and landscaping, or attach
other similar conditions or limitations that will reduce fire hazards or prevent the spread of fire to
surrounding areas.
C. The Planning Director or Hearings Body may limit changes in the natural grade of land, or the
alteration, removal or destruction of natural vegetation to prevent or minimize erosion, pollution or
degradation of the natural attractiveness of the area.
D. An application for a conditional use in an OS&C Zone shall be denied if, in the opinion of the Planning
Director or Hearings Body, the proposed use would exceed the carrying capacity of the area or would be
detrimental to the natural features or resources of the area.
E. An application for a conditional use in an OS&C Zone shall be denied if not in compliance with the
Comprehensive Plan.
F. An application for a conditional use shall be denied if the proposed use would force a significant change
in, or significantly increase the cost of accepted farming or forest practices on agriculture or forest
lands.
PAGE 2 OF 3 — EXHIBIT "A" TO ORDINANCE 2008-018 (7/21/2008)
G. Where the proposed use is adjacent to forest zoned land, a written statement recorded with the deed or
written contract with the County or its equivalent shall be obtained from the land owner which
recognizes the right of adjacent and nearby land owners to conduct forest operations consistent with the
Forest Practices Act and Rules for uses authorized in Oregon Administrative Rules 660-06-025(4)(e),
(1), (r), (s) and (v).
(Ord. 94-041 §1, 1994; Ord. 91-020 §1, 1991)
(Zoning maps amended by Ord. 95-059 §1, 1995)
PAGE 3 OF 3 — EXHIBIT "A" TO ORDINANCE 2008-018 (7/21/2008)