This document, upon approval in a public meeting by the Board of County Commissioners, serves as official minutes of such meetings as required under the Open Meetings Law, ORS 192.650.
Pursuant to notice made by mailing agendas to news media, a selected list of jurisdictions and individuals in Lane County, a meeting of the Board of Commissioners was held.
Questions should be directed to the Board Office Specialist 3, 682-4203.
BOARD OF COMMISSIONERS
August 30, 2000
Commissioners Conference Room
Commissioner Peter Sorenson presided with Commissioners Bobby Green, Sr., Anna Morrison and Cindy Weeldreyer present. Bill Dwyer was present via telephone. County Administrator Bill Van Vactor, Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
11. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING/Ordinance PA 1152/In the Matter of Naming a Newly Constructed Private Road, Whitewater Road (17-15-17-4). (NBA & PM 7/12/00)
Bill Robinson, Field Supervisor, Surveyors Office, stated the issue was whether to adopt Ordinance PA 1152, approving the naming of a newly constructed private road, White Water Road. He said the proposed name was reviewed by the county surveyor for compliance with the criteria of Lane Manual, Chapter 15.020 and found to meet the road naming criteria. He added approving the name for the road would satisfy condition of Approval Number 39 for a land partition, PA 995981.
Robinson explained there are two actions that take place: an application to name a road that is submitted to the director of Public Works (and is reviewed for compliance of Lane Chapter 15) and the County approving the private road named White Water Road. He stated the director of Public Works had recommended to the Board that this road naming be accepted. He noted all legal notices had been provided by state law for posting and publication. He added no objections to the name were received by any landowners or any county or public agencies to which the notice was sent.
Commissioner Sorenson opened up the Public Hearing. There being no one signed up to speak, he closed the Public Hearing.
MOTION: to adopt Ordinance PA 1152.
Weeldreyer MOVED, Morrison SECONDED.
ROLL CALL VOTE: 5-0.
b. ORDER 00-8-30-13/In the Matter of Granting an Easement to the Heceta Water District on County Owned Property Identified as Assessor's Map #18-12-11 Tax Lots 100 and 201 for Use as an Access Road and Placement of Water Transmission Facilities.
Vorhes reported that this is a request from the Heceta Water District to grant an easement for a water transmission facility across the 120 acres of county land and along a strip of land that will join with the public road portion of Taylor Road. He noted it is a 60-foot wide strip of land that connects one end with an existing county easement that was granted in 1968 and would run from that to the western portion of Taylor Road that had been accepted as a public road. He said he had revised the response to Hecetas agreement to be responsible for the location and relocation of the facilities in that easement strip. He noted the change was at the end of Paragraph 2 and Paragraph 8 of the agreement. He stated the easement would grant a 60 foot wide strip from the current county easement to the west end of Taylor Road and provide the facilities for Heceta Water District to install a road as access to their facilities and water transmission facility. He noted there is an indemnity clause that would indemnify and hold the county harmless for granting the easement as well as the activity of Heceta Water District.
Dwyer stated he was concerned about what was being done. He said it is a backdoor approach to allow the water district to get the water without complying with the original agreement. He said water is a limiting factor in developing an impact to the lake. He said that lacking information from the Northwest Regional Manger, the Board would be foolish to grant the easement because there are more questions than answers.
Van Vactor read the text of the easement into the record.
Dwyer recommended gathering other information that is needed to protect the public interest. He added since there was no public interest determination at the time of the million gallon withdraw, the Board needed to move slow.
Vorhes noted the item was a public hearing as there was potential interest on the part of the parks and properties to allow comment.
Weeldreyer noted since she had been in office, the amount of water withdrawn from the lake had been an issue. She noted in the easement there was no provision for any restriction on the amount of water.
Vorhes said there was no provision as it followed the old easement that the county had granted, with no gallon limitations. He noted the earlier agreement between the County and the city of Florence and Heceta ended up without a limitation on the amount of water withdrawn and part of that was the Boards decision that that was not an issue the County could resolve, but between the Heceta Water District and the users living on the lake. He noted the request was for an easement without a gallon limitation and it had not been a consideration.
Van Vactor stated there had been litigation and it was logical for Lane County to get out of the business of determining what the lake could hold. He was supportive of not having any limitations so in essence, Lane County extracts itself from the debate and if the debate continues, it is between Aaron Jones and the water district.
Morrison stated she met with Van Vactor, Steve Vorhes, Paul Vaughn and Dale Riddle in June and they discussed the whole process, including canceling one agreement and issuing another. She added there were conversations about the lake level. She said the end result was this would be an issue between the two parties, but not an issue for Lane County. She said the users of the water district are under guidelines and timelines because of the filtration plant. She stated if they were concerned about having a clean water source for the betterment of the public, they have to look at that. She added that Clear Lake doesnt belong to anyone and by removing Florence (the biggest consumer of water during the summer) the actual number of gallons will go down.
Dwyer said they have to protect the public interest. He said the facts show there could be detrimental effects on the lake.
Green asked what recourse could be taken if Lane County grants the easement and Heceta didnt adhere to the applicable rules.
Vorhes responded that as the easement grantor, they could look at recourse under exceeding the scope of the easement. He said there could be some recourse for Lane County if they do not follow the terms of the easement.
Commissioner Sorenson opened up the Public Hearing.
Dale Riddle, P. O. Box 851, Eugene, reported he represented Aaron Jones and the Whitey Howard family. He discussed the pictures of the lake (copy in file.) He agreed that Lane County should be extracted from the issue and it should be left with Aaron Jones and the Heceta Water District. He noted that the Heceta Water District wanted to breach a signed agreement. He said if Lane County granted the easement today, it would still not be resolved, it would end up in litigation. He added not granting the easement would allow the parties to work out the problem.
Riddle said in response to Morrisons comments, they met on May 30 to come up with a resolution. He noted that Heceta requested that they be granted an easement from the County to allow withdrawals of 2 million gallons per day. He added they would not object to the County easement, provided Heceta could commit to put in a weir to maintain the water level. He asked Paul Vaughn (Hecetas attorney) to contact Ralph Christenson to work things out. He said the issue was poor public policy giving Heceta the easement, as it would violate Mr. Jones easement. He said that Heceta customers need approximately 700,000 gallons a day of water. He noted they have given the City of Florence permission to exceed the easement until they get their own well field. He said the real issue is whether it is good public policy to give Heceta water when the purpose is to build a plant to process 2 million gallons of water that could have the effect of harming property owners, destroying fish habitat and violating the Endangered Species Act. He said it was illegal to act in concert in such a way as to violate federal law.
Riddle reported there were two possible solutions: Heceta honors its previous agreement with the Martins and Aaron and Marie Jones or to go to the 2 million gallons per day, discussing with Ralph Christenson a weir system and withdrawal rate limitations that will maintain the level of the lake so the fish habitat is not harmed.
Ralph Christenson, 2355 B Prairie Road, Eugene, reported he was contacted after June 1 by Mr. Vaughn, outlining maximum pumping levels to model. He said he was busy and didnt call Mr. Vaughn and Vaughn didnt contact him either. Christenson noted the elevation of the lake is 99 feet. He said they modeled it at two cubic feet in the winter and one cubic foot per second in the summer, and ODFW would agree with that. He said they show there is no weir system and within less than a year, the lake could dry up and they wouldnt be able to get water back in. He said his conversation with Vaughn indicated they were also modeling 2 million gallons in the summer, not in the winter, but there were still questions.
Weeldreyer asked about an established water right to withdraw water.
Christenson responded that a water right is an absolute right as far as the state is concerned. He added it is not uncommon for streams to go dry because the water right on them exceeds the flow of the stream.
Dwyer said he didnt see where it was in the publics interest to allow anyone to withdraw water with the lake going dry. He said the facts indicate that the lake couldnt support that kind of withdrawal and there is a public duty to see that it doesnt impact the environment. He added if they allow the easement, the County needs to make sure the public interests are met.
Riddle noted that even today, Heceta could be in the violation of the Endangered Species Act and the 4D Rule.
Weeldreyer noted the model they were working on was not complete. She suggested not taking action today and waiting until the modeling work was completed. She asked about the timeframe.
Christenson responded if all the parties could come together for a discussion, it could be completed within 30 days.
Morrison noted in December 98, that they were told there would be 30 days for this to be finished. She said they were still waiting for the Christenson report. She wanted a deadline set to make sure it was met. She was concerned they will never solve anything.
Christenson said they started out with Clear Lake and the moratorium didnt have to do with water quantity, but quality. He said in the beginning when they studied the water balance, it looked like the watershed would be able to take 4 million gallons per day without having a significant impact. He said they built a model and found that the lake couldnt take a 4 million-gallon hit. He said his position was to be reasonably cautious and not dry up portions of the lake. He added the weir system is important as it adjusts the system and it is part of the process.
Morrison wanted accurate information for her decision.
Christenson responded the pictures showed what happened when 1.5 million gallons were taken out.
Sorenson asked if there was a way to take out water for domestic water, maintaining the water level and not harming fish.
Christenson responded there were two things to do: limit the amount of water that is used at peak levels (2 million gallons per day) and to keep a weir in to deal with the fluctuations in weather patterns.
Mike Farthing, P. O. Box, 1147, Eugene, submitted a letter into the record.
Fritz Batson, reported that he didnt know if the City of Florence indicated the supply relationship would continue during the citys peak water use summer season. He added there was nothing in the easement that restricted it in any fashion. He said the scope of the easement is unrestricted. He said it is a county issue and continues to be a major resource.
Sorenson noted in the proposed easement, there was no restriction on deliveries to the City of Florence. He asked if that were an improvement to supply domestic water to the residents of the Heceta Water District.
Batson replied it was a benefit that restricted the amount of water that is withdrawn. He noted that the primary role of Heceta was to supply its own customers and they dont have an obligation to supply others unless they have a contract with that entity.
Paul Vaughn, 180 E. 11th, Eugene, presented a brief history that predated his involvement. He noted that originally a report from EGR Associates demonstrated that 4 million gallons a day could be pulled from the lake. He said the City of Florence wanted to withdraw from the existing intergovernmental agreement and pursue alternative water sources including the expansion of its existing well field. He said the action that was undertaken earlier was to agree to the termination of the intergovernmental agreement. He added that agreement provided for an easement on the entire 120 acres adjacent to Clearlake. He said that easement would ripen upon completion of a water and filtration treatment plant that would process 4 million gallons per day. He said at that point, the County was to deed property to the water district and the city. He noted the city wanted to withdraw from that agreement and Heceta had agreed. He added Heceta adopted a resolution at a Board Meeting and it agreed to the termination of the intergovernmental agreement and a prior memorandum of understanding between the city and the water district of a jointly operated 4 million gallon per day water plan. He said the water districts agreement to enter into this termination was contingent about being granted the easement that is before the Board. He said the existing intergovernmental agreement provides for no restrictions on the amount of withdrawal.
Vaughn stated the utility easement that the water district was asking for was straightforward. He said it is a simple 60-foot utility easement that will allow water to be pumped from the lake and treated at the new filtration plant to be constructed. He noted the district offices on Highway 101 would construct the filtration plant.
Vaughn noted that the easement contains broad indemnity language protecting the County. He said it was a red herring to suggest giving an easement for someone to construct a pipeline. He added Heceta intends to comply with its permits and all applicable laws. He noted the easement provides up to 1.5 million gallons of water per calendar year at no fee to the Countys park facility at Harbor Vista Park, Heceta Beach and Munsel and Mercer Lake's boat landings.
Vaughn said the reason the district needs the easement is because eight years ago, the state DEQ ordered that Heceta start filtering its water. He noted that Heceta had stretched out the order and requested extensions, which they received and expire in June 2001. He said the County is allowing Heceta to proceed with its plan to build a filtration plant. He said the public health issues are very important and the water needs to be filtered. He said because the requested easement is for a pipeline, and provides for indemnity, Heceta has to comply with all applicable laws. He noted their view is the County should grant the easement and let other agencies that have jurisdiction evaluate the disputes. He reported that Heceta had offered to surrender the permit for the 4 million gallons per day and they are opposed to have rules binding the district on how much water they can pull out of the lake at any one time.
Vaughn reported on the meeting at Riddles office on May 30, in which Riddle, Commissioner Morrison, Steve Vorhes and Bill Van Vactor attended. He said a pipeline easement was discussed. He said at the meeting, that Riddle said Ralph Christensons analysis of the affect on lake level water withdrawals was being reviewed and it was almost complete. He noted they have not received anything since that date. He reiterated that Heceta needs the easement so they could put the pipe in to get the plant built. He said with regard to Farthings letter, the Clearlake Watershed Protection Zone has its own set of ordinances and water transmission facilities. He said that allowed for facilities to be built without appeal and to allow people to build residences on those particular legal lots without the necessity of appeals to LUBA. He requested that the Board stick with the decision to grant Heceta and the city the easement it needs to build its filtration plant.
Mike Kendoll, 87845 Highway 101, Florence, stated they got extensions because they signed into an agreement for the water plant. He said if they dont get the utility easement, they may be fined. He added there was concern about the quality of the lake for the homeowners.
Vaughn stated that the Heceta District was cleared for agreeing to terminate that agreement, (a signed document by the city, county and water district). He added Hecetas resolution (agreeing to sign the termination) was contingent upon getting the 60-foot utility easement strip so the water district could build its filtration plant. He noted if they dont get the easement, Heceta would not agree to the mutual termination and may force the City of Florence to abide by their agreement and build a 4 million-gallon per day plant.
Green asked what the objection would be to the suggestion offered by Riddle, honoring the original agreement or waiting 30 days on a report from Christenson.
Vaughn stated they had tried to do that, but they need to build the filtration plant and the difficulty in negotiating with Riddle was that things were always changing. He added there was mutual interest to keep the level of the lake up and the water district was interested in exploring a weir, but not under circumstances where they have an order from the EPA to build a filtration plant. He said if they could get their filtration plant, then the parties could come with equal bargaining power to work something out. He added the county should follow through with the prior intent and purpose that granted an easement over the full 120 acres.
Kendoll stated they have 32 years of information on the water they pump and the lake level. He commented there had not been a significant impact on the lake. He noted when he met with Christenson, Christensons model was based on a stream flow and he had to change the numbers to fit a lake. He added that Christensons program did not work with a lake but with moving bodies of water. He noted there were no fish in the lake and they needed the easement to continue to provide clean, healthy water to the people of the district.
Weeldreyer asked if boating use on the lake was high in the summer.
Kendoll responded there was no access to the lake except to the two homes that are on the lake.
There being no one further signed up to speak, Commissioner Sorenson closed the Public Hearing.
Dwyer stated the Water Resources Department was faxing him documentation and he wanted to review the documents and letter. He stated he was not ready to make a decision today.
Green suggested allowing Christenson to finish his work and having the representatives from the Heceta Water District review it and come back to the Board.
Morrison wanted to move forward. She said if they could return in 30 days and move forward from that point, she would agree to continue it.
Christenson stated the information he needs is from the Heceta Water District on their needs and pumping rates. He said the information was on the presence of beavers, the impact of water in and out of the system and an explanation about draught years. He said he could have the information in 30 days.
Kendoll reported that he provided 10 years of information twice to Christenson.
Sorenson suggested Christenson write the district a letter requesting the information he needs and the district writes back with information, sending copies to the commissioners. He asked if two weeks was enough time.
Christenson said that would work.
Riddle stated the model was done, except for the water needed at different times of the year. He said it would show a drop in the lake and if the lake drops too much, then Christenson would show his weir system.
Van Vactor explained that Heceta couldnt control the permits on the weir. He asked if Aaron Jones could build the weir.
Riddle stated they would have to get a permit from the Corps of Engineer to build a weir.
Vorhes noted the conversation points out they are back where they were in December, 1998, that if the parties can come to an agreement, they will move forward, if they cant they dont. He didnt presume the result of the Boards decision, but if there was no agreement, the Board was left to make a decision without agreement. He said since there is additional information requested by the commissioners, they could hold the record open for a period of time, but there may not be agreement.
Vaughn stated it was not clear what was wanted because a large issue concerns how big the plug is on the lake. He said if the plug is one cubic foot per second through the summer and two cubic feet per second between October and June, it will have an affect.
Sorenson reported the record would be left open until 5:00 p.m. on October 4. He said the matter would come back to the Board on October 11, 2000.
12. COMMISSIONERS' ANNOUNCEMENTS
Weeldreyer announced that the Commission on Children and Families was meeting at the Juvenile Justice Center to review its documents going to the state on Senate Bill 555.
13. OTHER BUSINESS
There being no further business, Commissioner Sorenson adjourned the meeting at 4:05 p.m.
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