BOARD OF COMMISSIONERS' WORK SESSION

March 19, 2002

9:00 a.m.

Commissioners' Conference Room

APPROVED 5/14/02

 

Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison and Peter Sorenson present.  Cindy Weeldreyer was present via telephone.   Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.

 

1.  ADJUSTMENTS TO THE AGENDA

 

None.

 

2.  PUBLIC COMMENTS

 

None.

 

3.  PUBLIC WORKS

 

SIXTH READING AND DELIBERATION/Ordinance PA 1164/In the Matter of Amending the Lane County Rural Comprehensive Plan to Revise the "Significant Mineral and Aggregate Resources Inventory", Redesignate From "Agriculture" to "Natural Resource: Mineral", Rezone From "E30/Exclusive Farm Use" to "SG/Sand, Gravel & Rock Products" and Allow Mining For 575 Acres Of Land Pursuant to Lane Code 16.400 and 16.252 and the Goal 5 Oregon Administrative Rules (OAR 660-023); and Adopting Savings and Severability Clauses (File PA 99-5996; Eugene Sand & Gravel).

 

Dwyer asked if there had been any ex-parte contacts by the Board to the public.

 

Green stated he had no ex-parte contacts.  He said he talked with people about the process and he had read the articles in the Register Guard, and e-mails from employees of Eugene Sand and Gravel.  He was ready to deliberate without any bias.

 

Morrison stated she had no ex-parte contacts.

 

Sorenson had the same response as Green.

 

Weeldreyer stated none, other than e-mails on both sides of the matter, and people she encountered.  She said none would bias her decision.

 

Dwyer concurred with Green. He had discussions about the process, but nothing regarding the substantive issues.  He had received numerous e-mails from both sides.

 

Dwyer stated the job of the Board of Commissioners is to follow the facts.  He said they have to be unmoved by political temptation for intimidation.  He said the people of Lane County deserve their best efforts to be fair and impartial in the careful exercise and consideration of this matter.  He added it is a very serious issue with competing claims and issues.  He said they have the deepest respect for the right of all parties. 

 

E.  Safety Conflicts with Existing Airports

 

Tom Lanfear, Land Management, explained this criterion requires the Board to examine safety conflicts with existing public airports and it has a sunset provision  He noted there was no dispute, as it didn’t apply.

 

F.  Conflict with Other Goal 5 Resources

 

Riparian Corridors

 

Lanfear explained that (d) of the rule requires the analysis of conflicts with Goal 5 resource sites within the impact area shown on the acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA was initiated.  He said if Lane County has a Goal 5 inventory for one of the resources, that is what they are required to use to evaluate the conflicts.  He said if they don’t have an inventory for a particular one, there might not be much to review for that part.

 

With regard to Riparian Corridors, Lanfear said the Willamette River and Spring Creek interact with this property.  He noted the riparian inventory for Lane County is found on their habitat maps adopted in 1980 and prepared by the Department of Fish and Wildlife.  He said the maps from the Department of Fish and Wildlife were general in scale and based on U.S.G.S. Quad maps.  He noted that the Department of Fish and Wildlife designated Spring Creek and an overflow channel that leads into the river.  He said in Lane County’s Comprehensive Plan, they have riparian protection designated for the stream area on the property that borders area 2 and the west side of area 1 and the Willamette River. 

 

Dwyer asked what class the stream was.

 

Lanfear responded it is designated as a Class 1 stream in the plan.  He noted that Spring Creek has riparian protection in the Comprehensive Plan, the westerly portion of the Oxbow and the overflow stream running to the northwest has protection, on the east side of area 1. He noted the provision requires maps that have been adopted and in effect at the time the application was made.  He explained there were conflicts identified with the riparian corridor.  He said Lane County code requires setbacks of 100 feet for structures and berms and requires the maintenance of vegetation within 100 feet of a Class 1 stream.  He said the proposal to put a bridge across to access area 2 to access it from the haul road requires putting a crossing in the area protected for riparian habitat.  He stated it would have to be evaluated under Lane Code 16.258 to modify the setback requirement if they met certain criteria.

 

Morrison noted that ODF & W had stated that they think that the plan that had been promoted would reduce the likelihood of any significant impacts on the fish provided that the agreement is carried forward.  She asked what Fish and Wildlife would do if it wasn’t carried forward.

 

Lanfear responded that if this were to get past the County stage of approval, the Fish and Wildlife Department would be active in any operating permit issued by DOGAMI, and they comment on all their operating permits.  He understood that Fish and Wildlife comments to DOGAMI to put conditions in the operating permit that are enforceable by DOGAMI.  He said there is also the National Marine Fishery Service that the applicant has to get past for work like this.  He didn’t that that ODF & W had a strict regulatory function.

 

Dwyer asked when the 4 d Rule came into play.

 

Lanfear noted that gets evaluated through the permits that the applicant would have to obtain if they try to impact any wetlands.  He said there is a permitting process coordinated through the Division of State Lands.  He said that DOGAMI would also coordinate with them.

 

Lanfear stated that Lane County didn’t have a specific list of threatened or endangered species and the program to protect them through the riparian ordinance.

 

Sorenson asked what standard they were supposed to decide on.

 

Lanfear explained the task for the Board is to first identify if there are conflicts with the riparian resource and if conflicts are identified, then the task is to identify whether those had been minimized or not.  He said the first part is to identify how significant the conflict is. He noted once that had been identified, if it is determined that it is a significant conflict, then the minimization is a test of whether it had been reduced to where it is no longer significant.  He said it didn’t call for the conflict to go away completely and the Board has to determine whether it had been reduced to a level that is no longer significant.

 

Sorenson noted the Planning Commission unanimously found there was a conflict with riparian resources.

 

Lanfear said that was correct.  He said it was based on the habitat of the stream corridor. He said if the applicant was proposing to put berms within 100 feet of the stream, it is a conflict with Lane County’s regulations.  He added the placement of a bridge across the riparian stream is in conflict with Lane Code.  He said with lowering groundwater in the area, there is a possibility for the Oxbow to dry out, and that would affect the habitat in the stream.

 

Sorenson asked if the issue of the groundwater was related to the riparian conflict.

 

Lanfear responded it was.

 

Sorenson asked about the difference in expert testimony on the riparian corridor that consisted of lands within 100 feet of a Class 1 stream. 

 

Lanfear said based on the conflict, the opponents had identified wildlife that live in the area and use the corridor, including frogs, the western pond turtle, and other terrestrial animals that rely on the corridor and the riparian habitat for cover and breeding.  He noted the applicant maintained that they could accomplish minimization by setting the berms back from the river 100 feet by meeting the Lane Code provisions for the bridge crossing and by maintaining the groundwater level.  He said Fish and Wildlife noted that the applicant would likely minimize the conflict.

 

Sorenson asked where the issues of endangered species were discussed.

 

Lanfear noted they were addressed indirectly under riparian habitat.  He said the Endangered Species Act operates independently and would be enforced by the National Marine Fishery Services.  He said the applicant was proposing to interact with wetlands on the property that would automatically trigger Division of State Lands involvement and the Corps of Engineers in the permitting process.   He said there was no regulation in Lane County that triggers that.

 

Sorenson asked if within the course of approving this application, that could be a condition that the Board requires.

 

Lanfear said the Board could require that the applicant submit documentation from National Marine Fishery Services that the part of the proposal going forward does not result in a take. 

 

Sorenson asked if they looked at the groundwater impacts, if they assumed the reduction in the water flow is only a few million gallons, (as the expert of Eugene Sand and Gravel stated) if there would be a dewatering of the Oxbow where sensitive species are present.

 

Lanfear said it had been examined by Fish and Wildlife and they think it reduces the likelihood that would occur.  He noted if this were to go forward, the DOGAMI monitoring would need to be implemented to monitor wells to assure  Fish and Wildlife there had been monitoring of the water level in the Oxbow. 

 

Sorenson asked if there was any way they could be assured that the fish would not be stranded in the Oxbow.

 

Lanfear stated conditions could be crafted to require the levels to be maintained and that condition could be pushed forward with DOGAMI and their operating permit.  He added that the operation would not be able to function unless it maintains that condition.

 

Sorenson asked how they could include provisions for submitting documentation of compliance with the Endangered Species Act and the levels needed to be maintained in the Oxbow.

 

Vorhes responded the Board would have to articulate its preference for adding conditions to the approval actions that the Board would take.  He noted there were a number of conditions in the proposed ordinance to address various conflicts.  He said items could be added to mitigate a particular conflict to that list of conditions.

 

With regard to page 29 of Lanfear’s memo, Sorenson noted there was a list of 20 conditions that described various conditions necessary to minimize a conflict (in the opinion of the Planning Commission).  He asked why the additional conditions they were discussing wouldn’t be in the list.

 

Lanfear noted the Planning Commission (with the condition about water monitoring) thought the Fish and Wildlife coordination would occur with DOGAMI through their operating permit to assure that the water levels were monitored.  He added the Board could add water monitoring.

 

Morrison asked if they could include a condition in the Endangered Species Act--so that when species come and go off the list--it would amend the application when each species becomes no longer endangered and/or threatened.

 

Vorhes responded the options for the Board would be to identify the concerns and address them, or address the Endangered Species Act in a general sense, leaving it to the functioning of the act to determine which applicable species are to be considered at the time of activity on the ground.  He added they could provide a condition that was general but recognized that the current state of the art in the Endangered Species Act enforcement requires the applicant to show that they complied.

 

Morrison asked if they were to put specific parameters on the level of the Oxbow, how it would be done as a condition.

 

Vorhes explained it could be articulated as exceptions to the general rule the Board establishes.

 

With regard to number 19, Green noted it stated the approval of the riparian setback modification “may” be required.  He said in other conditions, they discuss “shall”.  He asked why the option of “shall” or “may” is given in that matter.

 

Lanfear responded it should be “shall.”

 

With regard to enforcement, Green asked who would perform this.

 

Lanfear stated that Lane County would get to enforce all the conditions that are set.  He added they could take the conditions and comment to DOGAMI during their permit process and ask them to adopt conditions into their permit.  He said they could also allow conditions into Lane County’s permit that adopts all the conditions put on by other agencies so they would have enforcement over it.

 

Green asked what Lane County’s track record was on enforcement with issues of this nature.  He noted whenever the Board receives issues of complaints or violations, he asks how they would be taken care of, given the current staffing.

 

Howe responded, not as well as the Board would like.

 

Green asked if the conditions were based on current or past practices of gravel pits.

 

Vorhes explained that would be involved in their determination of whether the Board thinks it is reasonable and practicable and what would work.  He said the Board would have to be comfortable with something that had not been done anywhere else.  He said the Board has to base this on what had been provided to them in the record.  He said it would be a consideration of whether what is proposed is reasonably likely to happen and would reduce the conflict to the point where it is no longer significant.

 

Green was concerned that this had never been done before.  He wanted to make sure that this would work.  He asked who would bear the cost of the failure.

 

Vorhes said it could be addressed in the conditions.  He noted if the occurrences took place after the approval, there is no guaranty that a claim wouldn’t come back to Lane County.  He added there could be defensible positions the County could take with what the Board did at the time if the decision was reasonable, prudent and there was no way of anticipating the consequences given the evidence in front of the Board at the time of the decision.

 

Dwyer noted the methods in the plan with the groundwater had not been proven.

 

Lanfear understood that the whole package had not been tried locally and there is one design plan in Yakima, Washington that matches this plan.  He said that would be intercepting the water, pumping it back to a location where it could filter back into the aquifer.  He said they are currently capturing water from other pits in the area and putting them into settling ponds where the water goes back into the aquifer.  He said those pits are not being maintained for the aquifer level.

 

Dwyer asked if the Board’s approval would leave them with conditions resulting in a take under the 4 d Rule.

 

Vorhes responded it would depend on what the conditions are and how the conditions were implemented.  He added there was some risk in any approval or action that the County takes and if it results in a take, there would be action on the part of the National Marine Fishery to address that under the act.

 

Sorenson asked about shade and habitat for the fish.  He noted that the Oregon Department of Fish and Wildlife recommended setbacks be enlarged from the 50-foot setback and that the National Marine Fishery Service commented that they are in agreement with Oregon Department of Fish and Wildlife.  He asked if that were something the Board would be determining with the conditions if the Board thought the conflict existed but it could be minimized by having a larger set back.

 

Lanfear explained the Board could set reasonable conditions to minimize the conflicts because there is flexibility.  He noted the original proposal was for 50-foot setbacks and it had been enlarged to 100-foot setbacks.  He added there were some berms that would be within the 100-foot setback that under provisions of Lane Code would be allowed. 

 

With regard to condition 24, Morrison noted there is to be something constructed to minimize erosion and dust generation.  She asked if they could have shading over the stream so it wouldn’t impact the fish.

 

Lanfear noted they could require something to the effect of development of a riparian vegetation plan all along the creek corridor that is approved by Fish and Wildlife.

 

Dwyer asked if there were assurances in the plan that fish could traverse the length of the streams that are impacted beyond the site.

 

Lanfear responded the only proposed impact within the bed of the stream is the bridge crossing.  That crossing would require permits from Division of State Lands and Corps of Engineers through the wetlands program.  He said they would also be coordinated with National Marine Fishery Services and Fish and Wildlife to ensure that the passage of fish would be maintained through the area.

 

Wetlands

 

Lanfear explained the Goal 5 list includes wetlands as one of its resources.  He noted that Lane County’s Comprehensive Plan identifies the wetland inventory to consist of the National Wetlands Inventory Map, Spring Creek, the Oxbow, the Swale (to the northeast from the Oxbow to the river) and the existing Swale running northwest.  He said there were other wetlands identified in the applicant’s wetland report that are not technically within Lane County’s Rural Comprehensive Plan’s inventory.  He noted there is a proposal for the bridge crossing.  He said there are wetlands within Area 2 that do not show up on Lane County’s map except as single dots.  He said the applicant would have to go to Division of State Lands and the Corps of Engineers prior to doing any fill or removal in the area, including the overflow channel.  He stated the Wetlands Plan calls for the Division of State Lands to be the agency that controls wetlands functions and minimizes the conflicts through the Division of State Lands process.

 

Sorenson asked, if there is a wetland--and a proposal to put a mine in the wetland, if there was a conflict if the impact to the wetland could be minimized.

 

Lanfear said the identification of the conflict needs to occur.  He said their position is that any impact to a wetland is a significant conflict.  He said the way to minimize the conflict is to conform with the Division of State Lands and Corps of Engineers requirements.  He added that was spelled out in the Lane County plan.  He said the Board would need to determine whether they think it goes far enough to minimize the conflict, of having the applicant obtain any necessary approvals from DSL and Corps of Engineers.

 

Sorenson asked how to minimize a conflict with wetlands and a mine.

 

Lanfear responded there are provisions in the definition of the OAR.  He stated minimizing a conflict means to reduce an identified conflict to a level that is no longer significant. He added it also specifies that those types of conflicts (addressed by local, state or federal standards) mean to ensure conformance to the applicable standards.  He noted in this case conformance with DSL and Corps of Engineers provisions for wetlands would minimize the conflict according to the Goal 5 Rule.

 

Sorenson asked if there was something specific the Board could require in the permit that would reduce the conflict.

 

Lanfear stated according to rule, if there is a state standard that applies, coming into conformance with that standard minimizes the conflict.  He said the conditions on the list (number 13) ensure that whatever is going on on-site meets the wetland requirements of the state and federal government. He noted the other conditions listed was an attempt to be inclusive as these might be more on target with other conflicts through the Goal 5 Rule, but they might have some bearing on wetlands and were included on the list to reinforce the minimization of the conflict.

 

Sorenson asked if number 53 got to the experts who had differing opinions on the extent of the impact of this on groundwater.

 

Lanfear noted this condition would come up under a whole series of conflicts through the document because the groundwater piece carries over into the conflicts.  He added if the groundwater is not maintained, then any wetlands that exist would dry up.  He said the applicant only needs to demonstrate that they conform to the state standards.

 

Sorenson asked what the state standards were with regard to wetlands.

 

Lanfear responded the Division of State Lands Administrative Rules has five pieces to it and the first option was avoidance of wetlands, to avoid impacts entirely.  He noted the last step is where the wetlands are impacted and mitigate somewhere else offsite.

 

Green asked if the Board had any guidance of the net effect of the conflicts. He asked if through the minimization of the conflicts there would be some effect.  He asked if they were looking for zero effects.

 

Vorhes said the rule doesn’t call for the Board to eliminate conflicts, it is to look into the areas where there are no local, state or federal standards involved.  He noted the effort is to look at reasonable and practicable measures that would take the conflict to a level where it is no longer significant.  He added when there are standards involved, the test is to show whether the applicant could conform to the applicable standards.

 

Wildlife Habitat

 

Lanfear explained that Lane County’s Rural Comprehensive Plan is compromised of the Flora and Fauna Working Paper and the main stem of the Willamette River is listed as a sensitive fish and water fowl area.  He added another area identified as sensitive bird habitat is a great blue heron rookery that is located across the river from Beacon Landing.  He noted this was identified in Lane Manual 11.400.  He said there is a bald eagle nest near the Willamette River that is not in Lane County’s inventory.  He noted that one person had submitted testimony in the record that had identified a rare plant on the property, but it is not included in Lane County’s list of rare plants adopted in 1984.  He said there haven’t been any other species of plants on the list identified in the record.

 

Sorenson asked if they would be addressing Goal 8.

 

Lanfear responded that Beacon Landing shows up under the discharges conflict as an existing use.  He noted there was disagreement with the applicant over whether Beacon Landing rises to the level of an existing use.  He added it is a state park and there is no management plan for it and the use is nebulously defined in the record.  He said it has to be addressed as a use that conflicts for noise, dust and groundwater under the discharges conflict.  He stated that under Goal 8 if they could find that minimization occurs with the conflicts and if those conflicts are minimized then it brings it into conformance with Goal 8.

 

Sorenson noted that one of the reports indicated that fish and wildlife that utilize the site would be subjected to short and long-term impacts as a result of development and operation of the planned aggregate extraction.  He asked what the opposing experts said about any of the impacts on wildlife.

 

Lanfear explained the opponent’s information is from Ethan Perkins and Randy Henderson of Thistledown Farms.  He noted their concerns that the mining of the area would cause the species to relocate and have impacts on their agricultural operation.  He said they maintained the eagles’ nest would be affected.

 

Sorenson asked what was being suggested to minimize the conflict.

 

Lanfear responded the Lane Rural Comprehensive Plan calls for these types of conflicts with sensitive fish and waterfowl areas be addressed by a combination of the Class 1 stream riparian regulations and the Division of State Lands’ fill removal requirements for wetlands.  He added there is also protection offered by the Willamette Greenway requirements and none of the actual mining is to occur in the greenway.

 

Dwyer asked if Beacon Landing was really a park.

 

Lanfear stated the land was only accessible by boat and for primitive camping and wildlife viewing.  He noted that no one had documented its use.

 

Dwyer asked if this were private, if it would be subjected to the rule of adverse possession.

 

Vorhes said it was dependant upon the nature of the use.  He said it would be the same issue of documenting the use of being made of the property.  He said they would have to determine if that use is what the zone allows and if it were, it would be included in the list of uses that is subject to the discharge conflicts.

 

Lanfear reported there are more Goal 5 resources listed in the staff report.  He noted that with wild and scenic rivers, there is not a river with that status within the impact area for this proposal.  He explained that the Willamette River is not listed as a state scenic waterway, but the Willamette Greenway is listed as an outstanding scenic value in the working paper and any conflicts with the greenway are addressed through Lane Code 16.254 RR Greenway Provisions.  He stated that groundwater resources are considered a Goal 5 resource and Lane County does not have this area listed as a groundwater limited area.  He said the conflicts with this resource come in under the other conflicts.  He noted that the approved Oregon Recreational Trail is a riparian resource and Lane County had not completed a Goal 5 analysis of any trails in Lane County.  He added that natural and wilderness areas are a Goal 5 resource and Lane County does not have an inventory of significant natural and wilderness areas.  He noted that mineral and aggregate resources are a Goal 5 resource and there is no other significant mineral aggregate resources identified within 1500 feet of this site.  He said that energy sources are also a Goal 5 resource and there is no inventory of those in Lane County’s plan.  He added this area is not on the inventory of significant gravel sites.

 

G.  Conflicts with Agricultural Practices

 

Dust and Emissions

 

Lanfear explained that under the general heading of agricultural practices, the minimization provision had previously been examined.  He said it doesn’t have to deal with a state, local or federal standard that might exist, it requires looking at the ORS requirements for impacts to accepted farming practices in the area.  He stated that ORS 215.296 and the use could be approved only where the local governing body finds that the use will not force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use or significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm and forest use.  He noted the proposal is adjacent to several large fresh market farms.  He stated there was no real definition of agricultural practices.  He noted there was a definition of accepted farm practices and there is a definition of farm use.

 

Dwyer asked if there was a rule that related specifically to orchards.

 

Lanfear responded there was no specific rule to orchards.  He said the criteria is that it can’t force a significant change in practices or cost.  He noted the conflicts needed to be examined with the agriculture uses surrounding the site to see how the conflicts interact with the farm use.

 

Dwyer asked what happens if the Board makes a determination based on their best effort and judgement and there is a significant cost or change in practices that result from their approval.  He asked who picks up the difference between the changes or costs that would allow the farming to continue.

 

Vorhes said if they do the best they can and circumstances occur that might had been unanticipated or no one could had anticipated that lead to consequences that might not be a compensable event that causes someone to file a claim against Lane County, it is the way things occur.  He said the people who bear the costs would be the people involved in the activities.

 

Sorenson asked how important the exclusion was to farm use.

 

Lanfear stated it was significant in that the Goal 5 Rule requires that they look at impacts to agricultural conflicts.  He said the section on discharges looked at existing and approved uses and it specified under that section that they minimize the conflict if they meet the standard in place.  He added if something were an approved use, (such as a conditional use in a zone that falls under that discharge analysis) then meeting the LRAPA standard would minimize the conflict.  He noted if something was a farm use, meeting the LRAPA standard doesn’t necessarily mean that the conflict is minimized.  He said the Board would have to look at the  ORS provision about the change in practice or increase in cost.  He said the determination of what falls under the parameters of farm use and what falls outside of that as an existing or approved use determines which uses they look at for change in practice and an increase in cost.  He noted with Lone Pine Farms, they had gotten an approval from the hearings official for a commercial activity in conjunction with farm use.  He added they also have a farm stand that is a permitted use under the Goal 3 provisions, but staff also recognized they had farm use occurring on the property, to the extent they are growing and marketing their own crops.  He said there is a disagreement with the applicant on what falls under the purview of the increase in cost and change in practice.  He said staff’s position is that when someone is growing crops and marketing from their own property, that is farm use. He explained when someone markets other people’s produce from the local agricultural area, it constitutes a farm stand activity and that is under the permitted uses section and the other discharges.  He said the pieces of Lone Pine where they are marketing other people’s produce and the uses that are approved by the hearing’s official as a commercial activity are not under review under this provision for change in practice or increase in cost.  He noted the petting zoo portion is listed as an outright farm use and that should drop off the list.

 

Sorenson said in his opinion, a farm stand should not be excluded from the definition of farm use as has been recommended in the staff report.  He noted the evidence from Penhallegon, the OSU Extension agent, stated that his specialty is orchard and small fruit.  He had reviewed dozens of scientific studies and his view (that the impact of the dust in terms of reduction of photosynthesis) is such as to say it is a significant change.

 

Lanfear said that everyone had agreed that there would be a level of dust that would cause impacts. He stated that LRAPA has a standard, but it is not the standard the Board would use to determine if this conflict is minimized.  He noted the dust reports turned in by the opponent documents a series of impacts that would occur at certain dust levels.  He added the applicant disputed the applicability of the reports.  He said that Penhallegon reviewed them all and said they were on target. Lanfear stated they didn’t have one report that gave an opinion on dust on crops.  He noted the applicant is disputing that their dust levels are significantly different than those mentioned in the reports.  He said the opponent’s position is that any dust results in these impacts to their crops.  He noted that Thistledown had 32 issues and Lone Pine had 21 issues.  He said the task for the Board is to determine at what point these impacts become valid and at what degree of impact it becomes significant.  He said just because the applicant maintains that they could reduce the dust levels to 3.3 grams per square meter per month at their boundary, if that did cause a significant change in practices.  He said the opponents maintain that the dust study is inaccurate and there is significantly more dust generated from the property.  He stated there was not a standard for the Board to use and there is disagreement over the validity of the dust study and the affects of the dust are on the crops.

 

Sorenson asked if there was anything else in the record that contradicts what Penhallegon said.

 

Lanfear responded the applicant turned in testimony from their agricultural experts and analyzed the reports and responded to them in comparing the reports to this site.  He said there are experts on both sides of this issue who are not in agreement.

 

Morrison asked how the Board determined (on page 35) the percentage was being met on the total sales.  She asked how they documented it and what percentage was being generated from produce that is being produced.

 

Lanfear noted the farm stand provision is an outright permitted use in the farm use zone under Goal 3.  He said it didn’t require an approval from the County to get established.  He noted the hearings official reviewed it through the approval in 1995 and based on what the applicant proposed to the hearings official at that time, found that it met those standards.  He said it wasn’t unusual for an applicant to propose something and receive approval based on that application.  He said if there is a compliance problem, it winds up in their department. 

 

Green noted the Planning Commission agreed 4-1 that there was a conflict with dust that couldn’t be minimized.  He said that staff disagreed.  He asked on what basis the Planning Commission came to their decision.

 

Lanfear responded the record changed after the Planning Commission deliberations.  He said when they were at the Planning Commission, the dust study showed there was going to be 16 grams per square meter per month at the property line.  He noted the LRAPA standard is 3.5 grams.  He noted it was automatically exceeded and it didn’t meet the state standard for dust.  He said it was easy for the Planning Commission to see this was a conflict that wasn’t minimized at that time.  He said since then the applicant revised the dust study and they are now maintaining that they can control the dust by keeping everything wet all the time and would achieve a greater efficiency of dust control that reduces the dust to within the LRAPA standard.  He had a hard time seeing in the dust studies any study that had comparable levels of dust to 3.3 grams per square meter per month.   He added he saw studies that were comparable to the 16 grams per square meter per month.  He believed there was a conflict but he couldn’t determine if that reached a significant level.

 

Dwyer noted the applicant stated they could control the dust by utilizing other methods like keeping everything wet.  He asked if anyone recognized the conflict that might exist between maintaining groundwater levels and utilizing the resources to meet the objective.

 

Lanfear noted a great part of the record was the groundwater issue, whether it could be maintained and where the water would come from.  He said the applicants have in the record how many gallons of water right they have on the subject property they are proposing to transfer to this use and it balances out to the amount of water they need to keep everything wet.

 

Dwyer noted there were not a lot of water rights on this property.

 

Lanfear stated the onsite water rights amount to 2,314 gallons per minute and they project that they would need 2,000 gallons per minute for the whole operation.  He added they have an existing water right at the existing site of 4,670 gallons per minute that they would be looking at transferring over if needed.

 

Dwyer asked if there were enough water rights to cover the whole operations.

 

Lanfear noted the applicant said they could get by with 2,000 gallons per minute for their whole use including dusting the roads.  He said there is 2,300 gallons of existing water right on the property.  He said the business of them transferring water from their other site is something that is in the record but he didn’t think it applied to this.

 

Sorenson asked if some of the water would be used for dust mitigation.

 

Lanfear responded that was not how it was proposed in the application.  He said the groundwater piece is discussing how much water would be coming into the trench and pumped back into the aquifer.  He noted the dust part was reliant on the applicant having enough water from their water rights to keep everything wet.

 

He said the applicant estimated 95% to 99% efficiency is what is being proposed to reduce the level of dust to meat the LRAPA standard of 3.5 grams per square meter per month.

 

Sorenson asked what was opposite from what the farmers had stated about dust in the record.

 

Lanfear noted the applicant had their agricultural experts and they had done their own review of the studies similar to what Penhallegon had done.  He added they had their agricultural expert review the same studies and reached different conclusions based on that review.  He noted they had researched through the valley looking for other gravel operations that exist near other farms, trying to determine if those farms are having a conflict from the gravel operations.  He said they didn’t have anything totally conclusive.  He said it was hard to compare any farm that is up in the valley next to a gravel pit, if they are growing crops that are not affected by dust. He noted they didn’t come up with an exact correlation.

 

Green asked about the dust and the impacts on the animals and the long-term effects.

 

Lanfear stated there is evidence in the record being raised by people that livestock would be affected by dust.  He noted there was a certain type of condition that is associated with dust and horses called chronic obstructive pulmonary disease, where dust affects the ability of the horse to breath and once that problem develops it could re-occur.  He said the neighbours are concerned that the level of dust put out by the operation would cause that problem to occur on their horses.  He noted there are thoroughbreds and stables nearby.  He said in the record there were letters from Dell S. Dee Veterinary Clinic that raised the concern about this issue.  He added there was a response by the applicant’s expert, Dr. Huber, who tried to explain this with the type of dust that causes the disease in horses is more associated with dust that has organic materials in it, such as molds, pollens and other organic material.  He said it was a different kind of dust than what is put out by an operation that is inert dust and is not the same type of dust. He noted the horses usually get this from their stables.

 

Sorenson asked about the noise conflicts and what evidence was in the record pro or con on the issue of noise.  He asked if the farmers were taking the view that noise is a conflict with their agricultural applications and that Arthur Noxen says there is.  He noted the applicant had a noise consultant as well and concluded there was no impact on the farmers or if it was, it is not a significant one.  He asked if this was a fair summary of the noise as it applied to the farmers.

 

Lanfear responded that was accurate.

 

With regard to groundwater, Lanfear noted they went through the issues with conflicts to residential wells and approved uses at the last meeting they had and this was the portion of the rule that would look to groundwater impacts to the farm uses that were occurring.  He said from the record, Thistledown Farms has 12 wells, three in proximity to Eugene Sand with a 12-foot static water level.  They are between 20 and 30 feet deep and when they are pumping at 400 gallons per minute, they have a three foot draw down.  He added they use centrifugal pumps.  He stated that Lone Pine Farms has five wells for irrigation, a barn well and two market wells.  He noted that one well is 70 feet deep and the depths of the other wells were not specified.  He said the primary issue was whether or not the groundwater-trenching plan of the applicant works or not.  He said if it works, they would maintain the level of groundwater in the aquifer to within one foot of the existing level.  He said if they don’t, the prediction would draw down about seven feet within 300 feet of the operation. He noted the affect of the seven foot draw down (as identified by the opponents), would be to lower their well to such an extent that their pump would no longer be adequate to pump the water up because it would be greater than the pump capacity.  He added some of the wells would not reach water anymore, forcing them to drill a new well.  He said it wouldn’t work because they would go down into a new aquifer that would cause them to lose their water right and there wasn’t enough water at a deep level to meet their irrigation needs. 

 

Lanfear said the Board had to decide whether they believed the groundwater system works or not. He researched the water rights law and a recommendation could be to put a condition to monitor wells and if someone’s well is affected, that the applicant would provide water to replace that well.  He said that ORS allows transfer of water rights and they could pump water from the trench to supply water to the farmer whose well had been affected and the farmer would not lose their priority date on the water.

 

Dwyer asked if all of the impacts were significant.

 

Lanfear’s position was that it appeared that the groundwater trenching system works and that adequate positions could be placed on the approval to make sure it does by monitoring it.  He added in the event it wouldn’t work, they wouldn’t be mining.  He said the water resources department has the authority to make sure that people’s wells are operating in accordance with their water right.  He said that DOGAMI could also stop the mining operation.  He noted the way the statutes work is that residential use has the priority in the water rights, then agricultural use and then industrial use.  He said agricultural rights would always take precedent over the industrial right.

 

Sorenson asked if there was a decision the Board needed to make about the impact area for purposes of groundwater.

 

Lanfear responded the impact area started at 1500 feet.  He said when looking at the impacts to groundwater, the most significant impacts would occur closer in.  He said the Board would have to minimize the impacts to their satisfaction for all of them.  He said by virtue of minimizing the conflicts to the close in wells, it would minimize the conflict to one that was further away.  He noted the close in wells would face the most significant impact.

 

The meeting was recessed for lunch at 12:00 p.m.

 

The meeting resumed at 1:30 p.m.

 

Flooding

 

With regard to flooding, Lanfear discussed the impacts from the flooding that would be created by placing berms around the mining cells.  He said as it relates to the farm activity, the farms had identified problems they would experience due to the flooding.  He said the problem would occur if they have additional water that occurs in their orchards or fields and the water sits any longer than it used to do.  It would cause an increased mortality of their crops and trees due to the saturation of the roots.  He stated they believed the soil would be lost from additional flooding on their property and that any increased flooding would cause fertilizers and herbicides to be moved across their property from where they are placed.  He said the applicant responded with the mitigation that is proposed with the Oxbow overflow channel.  He added that the increase in flood levels would be minor to the farms, being that Lone Pine and Thistledown Farms are to the west of the Oxbow.  They didn’t anticipate any increases in flooding in that direction.  He noted that most of the flooding impacts would occur to the east on the farmland across the river and that the level of increase to the north between Area 1 and Area 3 would be in the range of once inch.  He said they were maintaining that the additional level of flooding doesn’t cause a significant impact to the farm activity.

 

Sorenson noted that EGR’s estimate was four to five inches of increase and Dr. Petroff, Department of Environmental Engineering at the University of Washington, stated it was about 11 inches of increased flooding.  He asked if that summary was accurate.

 

Lanfear noted that Petroff took issue with the assumptions of the applicant’s flood study regarding the friction co-efficients and identifying how different manipulation of the model leads to different results.  He said if the study was correct, then the increase in flood levels they are expecting (during a 100 year flood) and the analysis was looking at a worst case where all the dikes were in place at the same time, the additional one inch of flood water that occurs during a 100 year flood doesn’t seem to be significant.

 

Sorenson asked what would happen with the impact of farmers if there is increased flooding.

 

Lanfear responded the applicant’s study showed they would increase the flood level by a certain amount and whether that is considered to be a significant impact is what is in front of the Board.

 

Sorenson asked what specific guidance they were supposed to use for the standards.

 

Lanfear said whether this would cause a significant increase in cost of agricultural practices or a significant change in the practice.

 

Dwyer asked what happens in trapping as a result of an event given the 4 d Rule.

 

Lanfear said that was a large concern of ODFW on the fish capture during an event that is part of the concerns with DOGAMI.  He said part of their solution was to limit the mining to only 25 feet in certain cells by the river so they could keep pathways open for fish to get out again when a flood event occurs.  He noted the dikes that failed in the 96 flood were older dikes that weren’t necessarily built under DOGAMI direction but were under an operating permit of the pit.

 

Dwyer asked where the water would go during a flood.

 

Lanfear responded that the excess water would stay on the east side of the Oxbow.  He said they anticipated that there would be an increase of flood waters in the Oxbow itself by four inches but the overflow device would eliminate it from going over four inches.

 

5.  Traffic

 

Lloyd Holtcamp, Land Management, stated they were using the same criteria, a significant change in agricultural practices and an increase in cost.  He noted what the applicant chose to do was address that with a level of service measure under the traffic item under Goal 5. He noted under response to issues, the applicant statement indicated they had a 1999 daily average for the year of 14 round trips per hour or 28 trips total or 308 per day.  He added the 1999 daily average for the peak month in June was 26 round trips or 52 trips total, which is 572 per day.  He noted their peak day in 1999 was 36 round trips that were 72 trips total and during an 11-hour day there were 792 trips.  He added they had increased that by 25% that equated to 90 times 11 hours or 990 trips per day.  He noted an outside engineering study indicated that Thistledown generates 1,000 vehicles per day and equates to 111 vehicles per hour.  He stated the access engineer indicated using a different occupancy rate than what was used by the applicant.  He said with Lone Pine Farms, a more recent letter from Mike and Lori Jensen to Thom Lanfear, dated August 7, 2001 said Lone Pine Farms would attract 1,750 patrons per weekday and it was used to generate an hourly flow rate of 65 vehicles per hour.  He noted the special use permit (page 5) for Line Pine Farms’ commercial use, clearly stated that the peak flows would be 5,000 trips per day.  He noted with Lone Pine’s special use permit, JRH Engineers used the same information for Thistledown, based on three persons per vehicle.  He said using these numbers, there were comments from the JRH submittal, as part of the approval for the special use permit, and the Jensens said they could have as many as 5,000 people attend the events.  That would add 1,250 cars that would come and go over a ten-hour period. 

 

Holtcamp noted in the special use permit for Lone Pine that they would be providing 150 marked parking spaces and overflow parking.  He added there was no indication as to how many parking spaces there were at Thistledown Farm.  He noted there were comments in response to Access Engineering.  They opted to use a level of service as a means to getting at whether there is a farming or agricultural impact.  He said they indicated that exiting the driveway, the delay is 36.7 seconds with a level of service E and 10 seconds more than what was estimated in the JRH reports.  They said the impacts on Thistledown Farms would be greater than what was stated in the JRH report.  He said the JRH report did their analysis at Thistledown and Lone Pine.  He said Thistledown has two access points and Lone Pine has three.  He noted if Lone Pine’s argument was correct and the traffic generated between two farms, that most of the traffic going along the road is going into these two facilities. 

 

Holtcamp noted that Eugene Sand and Gravel’s traffic study showed from 7:00 a.m. to 7:00 p.m. that the greatest peak hour occurs from 5:00 to 6:00 and the total number of traffic is 714 vehicles.  He said the analysis compared that amount with some adjustments to a base level of 1,700 passenger vehicles per hour and it is considered 3,200 passenger vehicles per hour in both directions to come up with the level of service.  He noted what was not clear is how this constitutes a significant change in agricultural practices or how the increase affects the cost of agricultural practices.  He added as far as River Road is concerned, he was satisfied there were no problems on the public road.

 

Dwyer asked why there was a discrepancy between the reports.

 

Holtcamp responded there was a question regarding peak hour factors and the access for it that wasn’t correct.  He noted the applicant responded that there is heavy traffic coming from Country Coach leaving during the peak hour and they were using a higher number to reflect the traffic flow coming from Country Coach and it was filling up most of the peak hour traffic.

 

Green asked Holtcamp if there would be no significant impacts for transportation.

 

Holtcamp stated he couldn’t tell if there would be an impact on agricultural practices.  He added there was no impact to River Road as that would not drop below a service level they were concerned with.

 

6.  Cost of Farm Land

 

Lanfear explained this was an issue raised by the local farmers, maintaining that the acquisition of the land and conversion into a gravel operation would cause an increase in vacant farm land that is available for them to rent, lease or buy.  He said the applicant paid $10,000 per acre for the access road.  He said the applicant responded that that was a piece of property that was critical to their operation for access.  He noted that was the only evidence in the record about farmland prices.  He said there were letters from people who tried to rent or lease acreage for farming purposes and were told the land wasn’t for rent.

 

Dwyer asked what the history was for the increase cost of farmland as it relates to mining extraction over the development of farmland and agricultural lands.

 

Lanfear responded that wasn’t clearly in the record.  He said there was some speculation that the value of land had increased around existing pits.  He thought it was more of a function of the urban growth boundary moving out in proximity to the city.  He didn’t know if there was a cause and effect with the gravel site.

 

Dwyer asked if there was a way to prevent conversion of adjacent lands for sand and gravel to other uses.  He asked how they could prevent that from occurring in this matter.

 

Lanfear said the lands around this facility are generally zoned for farm use and that should protect them for farming.  He said the Goal 5 Rule considers aggregate to be a valuable resource.  He said in the process, the Board has the ability to look at uses that would conflict with the mining. He said if the mining is approved, they could look at ways to protect it.  He didn’t think there was a way they could put a limit on the change of other properties.  He said conflicts with farms and stopping development in a wider area to protect them is not part of this process.

 

Dwyer asked if mining could co-exist with agriculture.  He said the purpose is to allow them to co-exist.  He asked if the siting of a mine jeopardizes the continuation of the agricultural practices.  He said it also raises questions that relate to Measure 7.  He asked how they protect the farms from that use.

 

Lanfear explained that any proposal for change in the farming area would be subject to the plan amendment process that lets the Board look at various factors before they allow the change.  He said the process is there to look at the agricultural land policies and preserve farmland and aggregate sites lends it support to not allowing housing development around it as it is a conflict with the mining.  He noted the older mining sites were not developed in accordance with the Lane County Rural Comprehensive Plan as it is today

 

Sorenson asked what the standard was for the cost of farmland.

 

Lanfear noted this was an issue raised by the opponents.  He said it was an issue that one commissioner wanted to discuss in detail. He noted the issue is whether this forces a significant increase in the cost of accepted farming practices. He said if there was an increase in the cost of renting land to rotate crops, and if that is an increase in cost, then that is significant.

 

7.  Grapes:  Statutes versus Rules

 

Lanfear explained that the statutes say that no application shall be approved to allow batching and blending of mineral and aggregate into asphalt cement, within two miles of a planted vineyard.  He noted grapes were being grown on Kay Bar 3 Farm, in between Areas 1 and 3.  He said there were five acres of grapes.  He noted that Thistledown Farms has one acre of table grapes.  He added that the Goal 3 Rule from LCDC defines planted vineyard to mean that new uses that batch and blend mineral and aggregate into asphalt cement, may not be authorized within two miles from a planted vineyard.  He said that planted vineyards mean one or more than one vineyard totalling 40 acres or more that are planted as of the date of the application for batching and blending is filed.  He explained there had not been an identification of a vineyard 40 acres in size within two miles of the proposed site.  He said there were arguments in the record from legal counsel on both sides.  He noted there was a case where Lane County challenged the authority of LCDC to adopt administrative rules that were in conflict with the statutes and it was ruled in favour of LCDC.  He said the LCDC rule was limiting the uses allowed in the farm zone in Lane County under marginal lands and it was dividing it into high value and low value farmland.  He said this is taking a provision and modifying it in such a way that it limits it to only 40 acres of vineyards.  He said there was nothing in the record that explains why they have to keep an asphalt and batching plant away from the grapes. 

 

Sorenson asked if the statute had a broader meaning of vineyard, or if they were bound by the rule.

 

Vorhes said unless the legislature speaks differently, the Board should use the statutory provision of planted vineyards and using the rule.  He said it didn’t eliminate the possibility of the Board interpreting planted vineyards in a fashion different than the rule for purposes of this particular effort at addressing conflicts with agriculture practices.  He said the rule provides a definition to the statute that is persuasive.

 

Dwyer asked if the legislative assembly gave authority to make a rule like this.

 

Vorhes responded that the legislature adopted the provisions of ORS 215 and ORS 197, that created the Land Conservation Development Commission and authorized them to implement the land use planning statutes that the legislature had adopted, including the ability to deal with issues that the legislature might not have given LCDC specific direction on.  It gave direction on how to deal with farmlands.  He noted the Supreme Court looked at the overall authority that was given to LCDC from the legislature through ORS 197 as giving them the ability to articulate through their administrative rules provisions that may not be identical to what the statute says.

 

Sorenson asked if they had to go with the 40-acre rule.

 

Vorhes said the rule does provide a definition of planted vineyard to the extent that plays into the analysis they are dealing with. He noted in terms of agricultural practices, the definition and use of planted vineyard doesn’t enter into the equation as much as the impacts that may occur to the planted grapes.  He said if the rule governs the definition of planted vineyard (the Supreme Court stated it did) then that takes away the debate about whether asphalt-batching plants could be precluded on this property.  He said it didn’t answer the rest of the discussion or deliberation on what are the effects of this mining operation on planted vineyards or grape orchards or other kinds of crops that would cause a significant change or significantly increase the cost of those agricultural practices, specifically the growing of the grapes.

 

Dwyer said there was a different process between the law and rule.  He said the interest of the people involved in developing the law are different than those that develop the rule.  He said his experience in the legislature is that where a rule was out of compliance with the law, the legislature (rather than say the rule was wrong) would change the law to conform to the rule because the rule was working.  He didn’t see what the value of the law was and what it was trying to protect when it was developed.  He asked if there was any more damage to grapes as opposed to peaches.  He said there has to be some rationale.

 

Lanfear said he couldn’t find any difference in the record.

 

Dwyer said they could assume from the conversation that the rule prevails because it is a land use rule versus a statutory rule that wasn’t implemented for any express purpose except for legislative influence.

 

Dwyer said they need to go back through the conflicts related to Step 3 through G 7 and determine whether or not the Board is satisfied that those conflicts had been addressed and the applicant’s plan have minimized those conflicts to the point where the Board is comfortable that they are no longer significant and won’t increase the cost or conflict with the practice of agriculture.

 

C.  Conflicts Due to Discharges

 

Noise

 

Sorenson recalled Art Noxen testifying about the noise issue.  He noted specifically the 10-decibel difference, where because of the relatively quiet nature of the agricultural and rural area, that the difference between the ambient noise and the noise created from the mining operation, was greater than 10 and that difference was an example of a specific DEQ rule that had to be met.  He noted it wasn’t met in the example.  He stated a conflict did exist involving a specific rule.

 

Weeldreyer said they should work on whether the applicant minimized the conflict satisfactorily.

 

Dwyer recalled the applicant’s mitigation didn’t minimize the conflict beyond what is statutorily allowed.

 

With regard to noise, Sorenson said that Noxen said it was his personal opinion that the Eugene Sand and Gravel proposal would cause significant adverse noise impacts to surrounding farms and neighbors and would cause significant noise impacts to the surrounding area due to noise emissions from this operation

 

Dwyer asked if anyone had problem after reviewing both the applicant and the opponent’s criteria that relates to noise.

 

Sorenson recommended following Noxen’s recommendations.

 

Weeldreyer countered Sorenson’s findings.  She said in reviewing the record and in listening to the testimony, that with the condition that had been applied to this application, the project as proposed does meet what she considers to be highly restrictive DEQ noise standards.  She said with the restrictions placed on the equipment operation, the applicant had met the test that noise conflict could be minimized to a reasonable and practicable level.

 

Morrison concurred with Weeldreyer that the conditions regarding the equipment and what they would be required to do would muffle the sound.  She added they were discussing daytime hours.  She noted one of the conditions was that this would be from 6:00 am to 5:30 p.m.  She said that brings it down to what it was before as far as operational hours.  She said there were 18 conditions to bring the noise factor into compliance and not making it a significant issue.

 

Green thought the applicant met the noise test.  He said there was a set of conditions that addressed the standards.  He said based on his noise experience with the railroad retarder, the noise that bothers people the most is during the night time hours when they are sleeping.  He was satisfied that this conflict had been minimized through the conditions.

 

Dwyer had doubts about the noise test levels.  He wasn’t comfortable that the conditions had been meet.

 

Dust as it Relates to Discharge to Farming Practice

 

Dwyer said he had problems about how they were going to mitigate the problem with their practices.  He said there is no one to monitor the dust.

 

Green thought the applicant could meet the standards.  He had concerns about this portion, but not as great as others that have no standards.

 

Weeldreyer said she saw in the record where LRAPA said it would be able to meet the standards with mitigation that was being proposed.  She said LRAPA reviewed the project but did not comment specifically on Chernack’s information.  She thought LRAPA thought this would fall within acceptable levels.  She was in agreement that this would be mitigated.

 

Flooding as it relates to Discharges

 

Morrison had concerns about the flooding.  She said they have a plan but she wasn’t comfortable that it would work.  She said she had problems with the impact between flooding and groundwater, even with the conditions that had been outlined.  She didn’t know who would do the water baseline.

 

Lanfear’s understanding was that DOGAMI would require the applicant do all of the testing prior to getting any operating permit.

 

Morrison asked if water rights could be transferred from property to property.

 

Lanfear said that was his understanding.  He noted there was an ORS that allows the change of the point of diversion and applied to transfer of the water rights, ORS 540.510.

 

Sorenson said the flooding is a significant conflict and definitely affects landowners in the area.

 

Green noted in one of the conditions to minimize the flooding conflict (number 27) they refer to best management practices.  He asked if there was a recommendation that worked.

 

Lanfear said the elements that are being discussed are the overflow channel and the dikes to protect the mining activity.  Those designs will be under direct authority of DOGAMI when they are constructed.

 

Dwyer noted that this concept had never been tried before for flooding and that assumes there are no breaches.  He said the river couldn’t be kept in the river channel.  He asked how the river is kept in a man made channel that goes back to a flooded river.

 

Lanfear said it is a matter of determining how much volume of water is coming in at making the overflow channel wide and deep enough to carry the amount of water.  He said the applicant would have to meet the conditions.

 

Weeldreyer said the conditions that have been placed to try to direct the water had been done to try to minimize that risk to the property owners.

 

Dwyer wasn’t sure this plan mitigates the flooding.

 

Green said a plan couldn’t come up with certainty to control water in a large body of water.  He said with the application, he wasn’t thoroughly convinced that flooding could be controlled.  He didn’t think it would work.

 

Morrison stated a river could not be controlled.

 

Green said part of the process is that the applicant needs to be able to address the conflict and come up with a reasonable and practical plan to minimize it.  He wanted assurances that it would

 

Dwyer asked the Board if they were satisfied enough that if they allowed this to go forward the way the applicant plans to address the issue of flooding would be successful, and have no significant impact on the farmland and others who might be impacted by the decision.

 

Howe explained if the Board was at a conclusion that they were concerned whether or not the significance of the impact hadn’t been minimized to a point where it makes it not significant, they have to decide whether or not there is a condition in addition to the one that they had already identified that could bring their comfort level up to a point where it wouldn’t be significant.

 

Sorenson agreed that flooding was a conflict.

 

Weeldreyer stated with the flood control berms that are designed to withstand the 100 year flood elevation and the flood impact analysis that uses the worst case scenario, there was an indication there is a 4.7 inch rise in the river level and rises in those levels are typically one inch or less.  She said if the mine is mined sequentially, then it would be unlikely the worst case scenario would happen because there wouldn’t be open cells all at the same time.  She asked if they had a 100-year flood and the structures do not function as on this application, if Eugene Sand and Gravel loses its right to operate in that location if the condition is not met in the worst-case scenario.

 

Vorhes said it would depend on how the Board phrases the conditions of approval.  He said it might create problems for DOGAMI as well as Lane County if they were not doing what was called for in the conditions of approval.  He said if they were doing everything that was called for, he didn’t think it would have the consequence she was thinking about.

 

Green noted there was a majority of the Board that believed the applicant had not met the test as it related to flooding and there had been no identification of a condition that would assist in the mitigation of it. 

 

Lanfear noted they should recognize this, flag it and continue on.  He noted the whole piece required the review of all the conflicts.

 

Vorhes explained to the Board if they identify other situations that create conflicts and they don’t think the conditions had been adequately minimized, they might find there are conditions of approval, they could add that would address more than one situation.  He said if the Board couldn’t come up with conditions for all of the areas that conflicts couldn’t be minimized with conditions, then they go onto the ESEE analysis.

 

Groundwater as it Relates to Discharges and Conflicts Due to Discharges

 

Green noted this had no standards.  He said that DOGAMI would do the monitoring.  He wasn’t convinced how effective it would be.  He didn’t think the enforcement piece could take place.

 

Dwyer had concerns that the design could capture the discharge for recharging.  He didn’t think the ground could absorb the water and there was no mechanism to make sure the ground is porous.

 

Sorenson said that according to Dr. Massman’s report, deepening the existing groundwater wells would not alleviate the adverse impacts of the proposed mining activities because it would not significantly increase the pumping capacity of the wells.  Massman said the proposed mitigation wouldn’t work because the groundwater recharge from the infiltration trenches would be less than the rate of groundwater discharger at the interceptor trenches.  He said there are no standards and they have to rely on the testimony of experts.  He noted there was a serious contradiction in the experts’ statements.

 

Dwyer noted that all these questions are part of the law that is in the Doctrine of Prior Appropriation and it would take law changes to affect that. He added there would also be irrigation wells that would be impacted.  He asked if they lost water in June and couldn’t get it back until September, if that was a significant impact on a farmer.  He was not happy with this condition.

 

Weeldreyer stated the initial water quality base line that the Planning Commission added as a condition is a good one.  She didn’t have a comfort level with this condition as the condition and remedy are yet to be demonstrated in the same exact way anywhere else.  She said the baseline was important, as it would give the opportunity to address the fear factor.  She noted the area of concern with the outlying wells, (if they address the immediate impacts to the wells that are closest to the operation) would be sufficient to lower the negative impacts of those that are farther out beyond the scope of impact for this application.  She said DOGAMI is charged to monitor this and if there is a violation and this impacts a neighbour, there would be a process they would go through.  She suggested having a process developed that allows if a farmer loses their irrigation water, that there be a quick resolution or a temporary solution so they don’t lose the investment for that season.  She wasn’t comfortable with this.

 

Green asked if DOGAMI had a record for enforcement and citing.

 

Dwyer responded they regulate mines and derive revenue from inspections.  He commented that it is one of the most efficient organizations for the taxpayers’ dollar.  He said they were fee-driven and take little from the general fund.

 

Lanfear noted he regularly received DOGAMI documents in his office and they inspect and issue a new operating permit yearly. He said they get someone onsite each year prior to reissuing the operating permit.  He had seen them issue closure orders for people who didn’t have their bond up to par. 

 

Sorenson said there was a risk of adopting the EGR analysis as the report noted it would take only 3 or 4 million gallons per day to do this, where the other expert stated it would be 50 times that amount.  He noted the staff report stated it would draw down the groundwater table 11 feet within the mining area and the original report concluded a draw down of 15 feet. He concluded there would be a significant draw down and putting in additional wells would not create more water.  He added that this was a conflict that could not be minimized.

 

Dwyer said they would flag groundwater.

 

Conflicts to Local Roads

 

Holtcamp noted the county CIP project, included improvements at Beacon Drive and River Road, with left-turn lanes at all approaches.  He said they were also looking at structural and capacity improvements to accommodate the load based on the information given to them by the applicant.  He said it included River Road, Beacon Drive, Prairie Road and Northwest Expressway.

 

Green noted the Planning Commission and staff disagreed with this.  He said the Planning Commission was unanimous in its position that the conflict had not been minimized, but staff disagreed and believed that the proposal submitted addressed it.  He asked what information staff had that the Planning Commission didn’t have that would lead them to their unanimous decision.

 

Lanfear said the Planning Commission had concerns with methodology.  He added there were additional submittals on the assumptions for the traffic levels.

 

Holtcamp recalled that the Planning Commission had concerns about the direction of the haul route and how it would be enforced during Phase 1.  He noted it would be monitored to any other land use applicant where the applicant has to comply to conditions and subject to the same enforcement capabilities of the County.

 

Lanfear noted there was condition 49 on page 27 that was not in front of the Planning Commission about entering into an appropriate agreement with Lane County to ensure that trucks entering and exiting the facility use the proposed haul road.  He said that was a new condition to address the out of direction traffic.

 

Vorhes explained in this particular case, the Board has the criteria to apply that addresses conflicts created by the truck traffic generated by this use in an approval of a change that would allow this use to occur so it is not a situation where Lane County is looking at regulating all truck traffic in general from using a particular route.  He said it is designed to address the concerns raised by this application and the analysis of this application under the rules that are applicable.

 

Holtcamp noted the applicant would install a northbound right turn lane into the access road for the proposed facility as well as a southbound right turn lane at Beacon Drive off River Road.

 

Green stated the applicant had addressed the minimization.  He had a concern about enforcement, giving Lane County’s resources.

 

Morrison asked if they would be addressing River Road to Beacon under Goal 12.

 

Holtcamp responded that Goal 12 doesn’t have any limits specified as how far they could go away from the facility to address impacts.  He said ODOT asked that the applicant address Northwest Expressway at Beltline, River Road and Beltline and Delta and Beltline.  He said when they came back with an agreement that ODOT was satisfied with (number 78 in applicant’s condition of approval) it only addressed Northwest Expressway.

 

With regard to conflicts of roads as it relates to capacity and structure, Dwyer said the applicant’s plan to put in the left turn lanes and build the infrastructure would relieve the traffic in the route and is sufficient to mitigate the conflict.

 

Weeldreyer echoed what Green said.  She said enforcement would always be an issue for Lane County.  She said the mitigation met her test for being practicable.

 

Safety Conflicts with Existing Airports

 

Dwyer said there was no controversy for this condition.

 

F.  Conflicts with Other Goal 5 Resources

 

Riparian Corridors

 

Dwyer stated he had serious problems about the lack of continuity in the setbacks.  He said there are no conditions to maintain the Oxbow and the fish passage and that is set to other agencies and standards.  He added shading comes under this as it is a Class 1 stream that is fish bearing and it could be impacted.  He was convinced the plan mitigated the condition as it relates to the continuous setbacks.  He wanted to flag this matter.

 

Morrison concurred with Dwyer.

 

Sorenson said the issue of 100 feet versus 50 feet should be clarified.  With regard to the conditions of berms being vegetated, there wasn’t a discussion regarding the impact on the lowering of the temperature.  He asked whether they could write in specific water levels or temperatures as opposed to the process oriented conditions on page 29 of the staff memo.

 

Green wanted to flag this issue, as it would be difficult to enforce.

 

Wetlands

 

Dwyer noted there were no problems with wetlands.

 

Wildlife Habitat

 

Dwyer said he had problems with wildlife habitat as it relates to the corridors and setbacks and the concern for the species that might be impacted by this mine.  He said there are gravel mines that exist in close proximity to herons and rookeries.  He wasn’t sure there was evidence that a gravel mine could co-exist with eagles.  He asked what they could do so they wouldn’t be negatively impacting the species.

 

Lanfear said there are conditions that rely on other agencies’ permitting process to protect the species.  Lacking any wetlands regulations in Lane County’s code, they have riparian standards, the Willamette Greenway and the Division of State Lands permitting process.  He said the endangered species has an added level of protection including what the Board would place on the permit. 

 

Morrison said she had no problem with this issue going forward.

 

Sorenson noted the top of page 33 discussed fish entrapment concerns. He said that putting requirements into a plan that is procedural in nature, is ill defined.  He said there should not be any fish entrapment.  He wanted to look for other conditions besides just the process.  He thought this was a conflict that might be minimized

 

Dwyer said he would flag this.

 

With regard to the conflicts for Goal 5 resources with wetlands and wildlife habitat, Weeldreyer agreed with the Planning Commission, who said there were conflicts but they could be minimized by conditions of approval that would be separate processes done by the Division of State Lands and Army Corps of Engineers.

 

G.  Conflicts with Agricultural Practices

 

Dust and Emissions

 

Dwyer noted the test is what they are doing would have no significant impact on the farmers, or won’t alter their practices or increase their costs.  He said there are no standards as it relates to dust and agriculture.

 

Sorenson stated the impact of dust from the proposal of the gravel mine would have a detrimental effect with the costs to the farmers and altering their practices.

 

Green had concerns about the dust and the impacts to animals.  He wanted this item flagged.

 

Noise

 

Dwyer said the noises that would be omitted from the trucks and equipment could be mitigated with the plan.

 

Weeldreyer stated she had no problem with this.

 

Groundwater

 

Dwyer stated they would flag groundwater as the Board had concerns about groundwater and flooding.

 

Traffic

 

Dwyer asked if the conditions could be minimized that they are no longer significant and don’t increase the cost of doing business.  He said that the traffic was subjective as to what the impact would be to get to a farm stand.

 

Green said this troubled him.  He heard staff say that Lane County’s level of service would not go down but there would be an impact. He said the impact is what creates the problem.  He added there was already too many traffic issues and didn’t want to add more to it without a comprehensive way of handling it.

 

Dwyer suggested flagging this.

 

Cost of Farmland

 

Sorenson noted that the farmland costs would go up and it would adversely affect the farms.

 

Dwyer asked if the prices would go up to a point that was significant.  He asked how they would address the cost of the farmland.  He didn’t see any evidence in the record other than what the applicant paid for the access road that was required.

 

Dwyer asked if it was causal.  He said everything had gone up and questioned whether the sand and gravel people are to blame for that.  He said they usually use templates and other rules to show the $80,000 as it relates to farmland.

 

Morrison noted that if there were many negative impacts to the farm, it would be conceivable the price of the land might go down because people wouldn’t want to live where there is dust, noise, flooding and whether or not water could be present.

 

Weeldreyer said it was problematic as there is no data in the record on how this would increase the cost of farmland.   She added, knowing how difficult it is to meet the $80,000 test to live on property for agriculture, the cost of farmland was not a significant issue.

 

Green said he was okay with this.

 

Grapes v. Statutes v. Rule

 

Dwyer said the Board had no control over this issue.

 

Dwyer asked what Step 4 was on their list.

 

Lanfear responded that the Board might be able to use Step 4. He noted where out of the items the Board has flagged, if there is not a way to minimize them to their satisfaction to get below a significant level, then those conflicts have to be reviewed under the ESEE analysis process and that is how they make their decision to allow mining or not.

 

Dwyer asked about the impact on jobs as it applied to Eugene Sand and Gravel.

 

Lanfear noted the jobs issue had been in the record for a long time.  He said going into the process, they won’t know if they would get to use Step 4 or not, it is upon a determination that they have conflicts that are not minimized that that step becomes evident.  He said the analysis could be done by the Board, drawing from any existing policies that are in the Rural Comprehensive Plan, anything in the record and the Board’s judgment.

 

Sorenson asked Lanfear to identify which conditions could be minimized as a result of additional conditions, versus those that could not be minimized.  They would move forward with those. 

 

Lanfear marked flooding and groundwater (both as discharges and under the agricultural conflicts) riparian and wildlife habitat.  He said he took notes where there were at least three commissioners who thought the conflicts had not been minimized.  He didn’t believe there was a consensus on whether a condition could be placed that would satisfy that concern.  He added before they get to the ESEE analysis, the Board has to come to the conclusion that there are conflicts that are not minimized. He noted in some of them, there was an indication that there could have been a condition that could be crafted that would solve the problem for that particular conflict.  He said they now have a list of six conflicts that aren’t minimized and when they get to the ESEE analysis, it gets to the ones that are not minimized.

 

Morrison stated that flooding was one where everyone agreed it could not be minimized.

 

Dwyer said with vegetated berms and continuous setbacks and other conditions to maintain the Oxbow and fish passages, there were things they could require that would ensure the conditions were met.

 

Morrison asked if the application process would end, because of the conditions that were flagged, and the Board couldn't come up with any additional conditions, and if they agreed there are one or two that have conditions that could note be met.

 

Lanfear agreed.

 

Sorenson asked if they could send flooding and groundwater to the ESEE analysis and while that was taking place, they could work on the other issues where a condition could be written.

 

Lanfear noted under the ESEE analysis the Board could craft conditions under that process to deal with any of the issues.  He said they could take the whole list if they are not minimized to their satisfaction and conduct the ESEE analysis discussion with all of them.  He said if some could be solved with conditions, at that time they could do it.

 

Green recommended stopping at this point and having a discussion tomorrow on the conflicts that could not be mitigated based on the record and what they know.

 

There being no further business, Commissioner Dwyer recessed the meeting at 5:00 p.m.

 

Melissa Zimmer

Recording Secretary