BOARD OF COMMISSIONERS'
March 20, 2002
Commissionersí Conference Room
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.† PUBLIC COMMENTS
Tom Linniger, 45881 McKenzie Highway, Vida, questioned if it was a good idea to transfer money from Lane County and the City of Eugene for job development.† He was concerned that the money from Hynix was going to certain schools in Eugene and not to the rural areas.† He said since the County gave the exemption to Hynix, the money should be spread wider than Eugene, Bethel and Lane ESD budgets.† He hoped if the amount is significant the County would insist that payments to schools be countywide.
John Brown, 1824 Happy Lane, Eugene, stated that on February 28, a canine with the Eugene Police Department was killed on the railroad tracks while assisting the Lane County Sheriffís Office.† He said there was no insurance to replace the dog.† He added these dogs are an important part of law enforcement.† He asked the Boardís assistance in money that could be pledged toward another dog.† He noted they had already raised $3,000 and it takes $6,000 to replace a dog.† He challenged the Board, saying he would match any amount up to $500 from the commissioners and/or the County.
Dwyer responded he would commit $1,000 of his discretionary money.
Kim Shore, 830 W. 5th, stated she was a University of Oregon student.† She said that anything the Board could donate toward another police dog would be greatly appreciated.
2.† PUBLIC WORKS
CONTINUED 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). (NBA & PM 7/24/01, 8/7/01, 11/6/01, 12/4/01, 1/30/02, 2/20/02 & 3/19/02)
Dwyer recalled the Board went through Step 3 and flagged six items they had questions about.† He noted the Board had concerns about groundwater and flooding, habitat and other issues related to this application that they didnít think could be mitigated as a result of the applicantís plans.† He asked if that stopped the process.
Thom Lanfear, Land Management, responded that he heard the Board mention a series of conflicts that were not minimized.† He said that being the case, the next step would be to go through an ESEE analysis where the Board would evaluate the impact of those conflicts and decide whether or not mining would be allowed based on the conflicts.† He added the Board would move into a discussion about the environment, social, economic and energy consequences of allowing the mining or not.†† He stated the ESEE analysis step was required.† He added if at the end of the ESEE analysis step the decision would be to deny the application to allow mining, then they would skip Step 5 (looking at conflicting uses to the resource) and Step 6 and 7 would be minimal as they would have made a decision under the ESEE analysis that directs the Boardís determination under Step 6 and 7.† He said the purpose of the ESEE analysis is to look at each conflict and identify the consequences of allowing the mining† (or not allowing the mining) based on the impacts on that conflict with environment, social, economic and energy terms.† He noted that during the ESEE analysis there is an opportunity to limit the mining in some way.† He said the options would be to allow the mining, deny the mining, or limit it in some way.†
Sorenson asked Lanfear what the seven conflicts were on his list.
Lanfear stated his list contained seven areas where the Board thought the conflicts were not minimized.† He said they were flooding and water under the discharge conflicts.† He said under the agricultural impacts, it was dust, groundwater, flooding, traffic and finally, conflicts with Goal 5 riparian resources.† He noted these seven conflicts would be brought forth in the ESEE process to decide to allow mining (even though the conflicts exist) or deny mining or limit the mining.
Kent Howe, Land Management, reiterated that the Board determined there was a significant Goal 5 resource and it was established on a tentative decision.† He said the Board went through the impact analysis and determined there are seven impacts where there hadnít been conditions where the impact would be reduced to not being a significant impact.† He explained when an impact could not be minimized, it triggers an ESEE analysis.† He said it was unconstrained in that the Board could verbalize and discuss the opinion on how they reach a conclusion, that based upon those seven impacts, (in weighing the environmental, social, economic and energy consequences) that mining should either be allowed outright, should not be allowed at all or be allowed in a limited matter where additional conditions would be set.
Sorenson asked what the case law was and what constituted an ESEE analysis.
Vorhes responded this is part of the criteria under which the application must be evaluated.† He said there is some case law but it doesnít give clear direction on how things have to happen under this portion of the Goal 5 Rule.† He said the rule speaks in terms of the governing body doing the ESEE analysis.† He added it leaves it open to the Board to determine how they wanted to accomplish the task of evaluating the application. He said the Board had legal authority to do what had been described as an option.† He said as a Board they could choose to re-open the record and ask for an ESEE analysis.† He added the Board could discuss the matter make a tentative decision, directing staff to draft findings.
Dwyer asked if the Board was allowed to truncate the process if none of the conflicts could be minimized.
Vorhes said there was a risk in simply reaching the conclusion that the Board couldnít minimize the conflicts and they were not going any farther.† He noted a more prudent course would be to make a decision on whether or not to allow the mining after articulating the ESEE consequence.† He stated that under the rule, there would be some risk in trying to shorten the process
Dwyer noted the Board determined that some of the conflicts could not be minimized and they have to determine the need for an ESEE analysis.† He requested going into the ESEE analysis.
Step 4.† A Determination of the need for an ESEE analysis.
With regard to the ESEE analysis rule, Lanfear explained that the local government shall determine any significant conflicts identified under the requirements of the conflicts section that could not be minimized.† He said, based on these conflicts, only local governments shall determine the ESEE consequences of either allowing, limiting or not allowing mining at the site.† He added that local governments shall reach this decision by weighing the ESEE consequences with consideration of the following:† the degree of adverse affect on existing land uses within the impact area, reasonable and practicable measures that could be taken to reduce the identified adverse effects and the probable duration of the mining operation and the proposed post-mining use of the site.†
Lanfear noted the definition of the ESEE consequence is the positive and negative economic, social, environmental and energy consequences that could result from a decision to allow, limit or prohibit mining use.
Sorenson asked if the property rights of the various parties were part of the social in the ESEE analysis.
Vorhes responded it could be part social and part economic.† He said those terms were not precisely definable and it was up to the Board to articulate what is included in the various categories.
Weeldreyer asked if the ESEE analysis pertained to this particular application, or if it would be a decision that would affect all sand and gravel operations that are seeking to locate on a major river.
Vorhes responded the rule the Board is applying is the provision that states, based on the conflicts they identified, the local government shall determine the ESEE consequences of either allowing, limiting or not allowing mining at the site. He noted it was site-specific.
Dwyer asked what the safest route for the Board would be to prevail on appeal.
Vorhes said the focus of the discussion needs to be on the question of whether to allow, limit or not allow mining on the site.† He said they could do the ESEE analysis as a group and examine the adverse affects.†† He said staff could then establish findings from the Board discussion and evidence in the record.
Green noted there had been discussion on the significance of the resource.† He added they had tried to determine whether the applicant had actually met the test.† He said in some categories, he thought the test was met.† He said with regard to the measures that are put in place, he had to determine that the applicable criteria had been met in all of them.† He said until he could be absolutely certain that all of the criteria had been met, he couldnít agree that the conflicts on the flooding, groundwater and dust had been mitigated.
Morrison concurred with Green regarding flooding, groundwater and dust.† She was confident they would not have fallbacks that would come back on a decision they make.† She said there is information in the record that makes her confident that every issue had been touched and there wonít be serious impacts around all of those issues.† With regard to flooding and groundwater, she noted there were economic impacts to the land.† She didnít know how those economics would be weighed dollar-wise.† She was concerned on the environment side regarding the flooding, groundwater and the dust as there are too many unknowns in which they donít have control.† She wasnít sure there were things they could do that would totally mitigate the damages.† She said there were social impacts around the flooding and groundwater more so than on the dust.† She didnít think that they could come up with anything else that would satisfy her that there would not be continuing impacts to that area.
Sorenson stated he had not heard anything about energy impacts in the course of this application.† With regard to flooding, he said the Board had been most concerned with the impact of this proposal on the potential for flooding because it is next to the Willamette River.††† He noted the plan that had been put forth in the application has the proposed mine site next to the river.† He added flooding not only has an immediate economic impact on a farm that is wiped out due to the flood, but the increased risk of the flooding and the impact on public infrastructure and overall harm to the community is a major issue.†† He didnít believe that, based upon what is in the record, the flood conflict could be mitigated by anything other than not allowing the mine.† He didnít think that under Step 3 or Step 4 that they could mitigate that conflict.† With regard to the economic and social aspects of this conflict, he said they have to weigh the jobs that are created by the mine against the property rights, jobs, and other economic activities that would be affected.† He added with regard to flooding, the economics weighs in favor of the people and jobs that are already there.† He noted the variation in testimony is major between the estimates of EGR and its claim of 3 to 4 million gallons per day versus Dr. Massman, University of Washington, with engineering estimates about 50 times that amount.†† He said the variance was so great as to view with suspicion the numbers on either end of the continuum.† He stated the risk of having the aquifer pumped dry or causing environmental and economic problems in the area is present.† He said the property rights of the existing well owners and water right owners are a major factor in terms of a social or economic factor.† He didnít believe that, based upon the wide variance in the number of millions of gallons of water pumped per day, they could safely say the impact would not be major on the farmers and environment because of the impact of piping that much water out of the aquifer.† He found that the groundwater impact could not be mitigated and that the social, environmental and economic analysis should favor that perspective.
With regard to dust, Sorenson said the wide variation of opinion regarding the impact of dust was present in all of the public hearings and in the expert witness testimony.† He thought that would be a place where a conflict could be mitigated at the site.†† He added a more troublesome issue is with the dust and its impact to agriculture. He said that conflict with the property owners could not be mitigated, because of the testimony of the agricultural experts.† He noted the economic, social and environmental aspect of the dust conflicts pertaining to the farmers and the agricultural economy in the area is major and could not be mitigated.†
With regard to the discharge conflict of flooding and groundwater, Weeldreyer said these impacts apply not only to this application but to any new sand and gravel operation that they would be locating in the future along the rivers where there is gravel and flooding is a condition. She said on the issues with flooding, the economic, social and environmental impacts would be present in almost all circumstances. She noted there were steps that had been taken to divert the water for a 100-year flood.† She said with the mitigation that had been proposed and the conditions that had been placed on this applicant to address the flooding issues, the berms and the diversion channel would not be so high on the other side where the two farms are located.† With regard to the groundwater issue, she noted that although the proposed process was not proven with the exact conditions as stated in this application, if the experts are saying this would work and the staff recommendation is that it would work, what bothered her the most was:† what if it didnít work.† She didnít think there were enough conditions in this application to be able to rapidly respond to an issue if someoneís well goes dry or an aquifer is depleted beyond what was originally in the conditions.† She said there could be conditions that would allow a process with the baseline that had been proposed by the planning commission that if a well goes dry, (directly related to this mining operation) how to respond quickly and how to replace the water that is lost to the owner that had been damaged.
With regard to the riparian issue, Weeldreyer said with economic, social and environmental issues, they were discussing adding a condition that would require taller trees, allowing more shading and making the setback consistently 100 feet throughout the waterways in this subject parcel.† She added for agricultural conflicts on dust, groundwater, flooding and traffic, the River Road area had been growing and that traffic issues would continue to be problematic and that would have an economic, social, environmental and energy impact that is long-term.† She thought there were conditions for turn lanes and traffic signals.† She added limiting the number of trucks per hour minimizes the traffic.† She didnít think it would outweigh the consequences of not allowing this use.††† She added for dust and water for the agricultural conflicts, they could put additional conditions into this application and allow it to go forward.† She stated the economic impact with the loss of jobs would go beyond the 200 jobs lost at Eugene Sand and Gravel.†
Dwyer stated the burden was on the applicant, not on the Board.† With regard to the environment, he had serious concerns about the species that might be impacted by high water events.† He had concerns about the impact on the greenway and the park that is utilized by people from the river. He didnít believe they could mitigate the impacts that result from a large water event they have no control over.† He said the wetlands would be impacted as well. He said that wildlife habitat would be impacted.† With regard to the economic issue, he said testimony in the record indicates that, while they might not be able to expand this mine, it is a market-driven resource that would be assumed by others in the community.† He noted there was no shortage of gravel in other sites.† With regard to the economic impacts of agriculture, he said the record shows they would be significant and would require an increase in cost to allow agribusiness to continue.† They† would also precipitate a change in farming practices as a result of the emissions, the traffic and of all other issues that result from an increase in cost.† He was not convinced that the water would flow through as readily as it does on the upper surfaces of the gravel.† He said the people who are impacted by the loss of groundwater could only dig so far and the question of water rights becomes an issue.† He said the point of diversion is rigorously controlled by the water resources department.† He noted the rules and the law require them to find that if they were to allow mining, that they had identified the significant resource, but the law requires that if they were to allow mining that it would have no significant increase in the cost of doing business as an agricultural producer with a change in practice.† With regard to dust and how they would control dust, given the limited supply of water and the fact there is no one to monitor the dust,† he questioned how it would be regulated.† He said the plans they put forward with the dust, acerbates the problem, but as it relates to groundwater, he didnít believe there was enough groundwater to control the elements and to allow for the mine to go forward.
Dwyer said the dust that is produced by an aggregate mine in the summer time (that is their highest production) would definitely (according to testimony) impact the growing cycle of some of the crops that are grown on adjacent properties.† He said there is aggregate production that is in close proximity that is located close to farms and it was shown that the gravel owners also owned the farms, and they had complete control over what items are grown.† He added that most of the crops to the north are grown for commercial purposes and sold to canneries and have a different way of treating and dealing with the issues of dust and dirt as it relates to commodities.†
With regard to flooding, Dwyer was not convinced that there could be an aggregate mine next to a river and flooding would be prevented.† He said when berms are created to protect the pit, they actually disburse and displace water in other areas that might exacerbate the natural flooding cycle and cause harm. He noted in 1996 the record indicates that there were approximately 17 pits that failed in one flood.† He added that many of these pits had not been reclaimed and they are not in close proximity to the river as close as this would be.†
Dwyer said the farms would definitely be impacted by traffic, even though there is a plan that would alleviate the problem.† He added that he thought the additional traffic that would come from the gravel trucks would decrease the amount of business that would be generated by the farms and would have a financial impact on the farms in putting them out of business or changing the way they do business.
With regard to groundwater, Dwyer said there are wells that could go dry.† He added there is an impact on the energy to drive this resource to meet the plans. He noted it is not a gravity system but a pumping system.† He said the social aspect was obvious on the practice and expectation of the farmers in the surrounding community.† He said allowing this application would be the demise of the farms.† He was not prepared to bear that impact.
Weeldreyer thought they were to balance the agricultural needs with the aggregate needs to sustain Oregon into the future.† She believed it was imperative to find a way to help the two industries co-exist.
Dwyer responded they could only do it under the law if they find that allowing this mine would not increase the costs of these farming practices, or result in no significant change to these practices.
Vorhes noted the ESEE analysis was where the Board could, regardless of a conflict, still conclude that mining should be allowed.† He said the Board wasnít limited by the conflicts.† He noted the Board had to go through the conflicts analysis to determine what the adverse effects were and what might minimize them.† He said the result might be through the ESEE analysis that mining ought not be allowed, but the ESEE analysis provides for allowing limiting or prohibiting mining.† It gives the Board the opportunity to decide that despite those significant impacts, the mining ought to be allowed.† He said the conflict analysis did not drive the conclusion of the ESEE analysis.
Sorenson asked what the distinct difference was between Step 4 and 5.
Vorhes responded if there is consensus among the Board under Step 4, (the ESEE analysis) that mining ought not be allowed, then Step 5 is not required under the provisions of the Goal 5 Rule.† He asked that the Board, before taking tentative action on this application, articulate if there are items under Step 6 (conformance with the statewide planning goals) which cause concern.† He also added that under Step 7, it would be appropriate to express some preference, if the Board had one.
Weeldreyer didnít believe for the written record that the Board had done as thorough a job as they could by going back and pulling out all of the different aspects of the ESEE analysis.† She didnít think she did justice to the ESEE analysis.
MOTION: to move that the Board of Commissioners tentatively deny the application and direct staff to come back with the necessary documentation including the completion of the ESEE analysis.
Sorenson MOVED, Morrison SECONDED.
Sorenson stated that staff had heard the perspectives of the commissioners over the last several months so they could complete what had been done to tentatively approve Step 1, tentatively approve Step 2 and tentatively make a decision to deny the application.† With regard to Goal 12, 15 and 8 issues, he said those could be included in the materials that are brought back to the Board based upon what staff had heard.† He stated the Board had tentatively approved Step 1, and by a vote of 3-2, had tentatively approved Step 2 and his motion is to tentatively deny the application and direct staff to bring it back.
VOTE: 4-1 (Weeldreyer dissenting).
Dwyer suggested that staff work with Arlene Marshall to bring back the tentative findings.
Vorhes reiterated that all of this was tentative so when the Board reviews the document that contains the findings addressing the ESEE analysis, they would have an opportunity to discuss what might need to be added or changed.† He said it was up to the Board to accept and adopt what is presented.† He added the Board could also revisit Step 2.
Morrison asked if the Board could capture Goal 12 and the impacts on Delta and Beltline.
Vorhes stated he took the motion to include to the extent there was discussion on those issues and a clear indication from the Board on where those concerns were, that those would be included in the findings.† He added once this comes back, if the Board wanted to discuss changes to those findings that could be done as part of the continuation of the process.†
Sorenson hoped they would get the whole packet back and if Morrison wanted to change her view on Step 2 that would be the best time.† He recommended staff come back with the proposed findings consistent with the three prior votes of the Board on Step 1 and Step 2 and Step 3, coming back with the packet, working with the agenda team to get this back to the Board.† He said when they decided Step 2 in December, they had articulated the reasons why the resource site did not meet the criteria.† He didnít believe that anything had changed.† He said in the written documentation of the Boardís decision on the steps it would be important to have the decision to reflect what he believed was the scientific evidence in the record that the source was not significant.
3.† EMERGENCY BUSINESS
There being no further business, Commissioner Dwyer recessed the meeting at 10:40 a.m.