DRAFT. Josephine County, Oregon. Periodic Review Text Amendments TASK #1 MINERAL, AGGREGATE & RIPARIAN RESOURCES TASK #2 WILDLIFE PROTECTION

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1 DRAFT Josephine County, Oregon Periodic Review Text Amendments TASK #1 MINERAL, AGGREGATE & RIPARIAN RESOURCES TASK #2 WILDLIFE PROTECTION October 2005

2 TABLE OF CONTENTS GOAL 7 PRESERVE VALUABLE LIMITED RESOURCES, UNIQUE NATURAL AREAS AND HISTORIC FEATURES Aggregate Resource Policies Riparian Corridor Resource Policies Wildlife Site Policies GOAL 10 TO DEPICT A LAND USE PATTERN TO GUIDE FUTURE USES, TO IMPLEMENT THE DESIRES OF THE COUNTY AND TO MEET THE REQUIREMENTS OF THE STATE OF OREGON Mineral and Aggregate Resource Zone (MARZ) Limited Development Zone (LD) RURAL LAND DEVELOPMENT CODE Section (Definitions) Article 66.1 Mineral & Aggregate Resource Zone (MARZ) Article 72 Heights, Setbacks & Accessory Structures Significant Mineral & Aggregate Setbacks Riparian Corridor Setbacks Rookery or Nest Sites Article Initiation of Site Plan Review Article 91 Development Standards Mineral & Aggregate Operations Article 69.2 Deer Overlay APPENDIXED MATERIALS Appendix 1... Periodic Review Letter of January 15, 2004 Appendix 2... Current Basic Aggregate Policy i

3 TABLE OF CONTENTS (Continued) Appendix 3... Excerpt from Deer Winter Range Staff Report Appendix 4... Current Goal 10, Policy K (Mineral & Aggregate) Appendix 5... RLDC Article 68 Limited Development Zone Appendix 6... Current RLDC Section (Placing Land in MARZ Appendix 7... OAR (Mineral & Aggregate Resources) Appendix 8 Appendix 9... OAR , 0040 & 0050 (Standard Inventory Process)...OAR (Riparian Corridors) Appendix Van Gordan Re Stream Flows ii

4 INTRODUCTORY COMMENT: The following proposed amendments to the county s Comprehensive Plan Goals and Policies and Rural Land Development Code relate primarily to policies for mineral and aggregate resources and riparian corridors. The part of this work dealing with mineral and aggregate resources was previously adopted into the Comprehensive Plan in November of 2000 as a part of Ordinance , but much of this work is now revised here. There are two reasons for these revisions. The first reason is that the state of Oregon adopted significant amendments to the Oregon Administrative Rule (OAR) dealing with mineral and aggregate mining, which became effective in June of These changes must now be included in the county s policies and regulations. The second reason comes from staff s first attempt to apply the regulations to a specific aggregate mining application. When this happened, uncertainties arose about how to apply some of the rules. As a result, the mineral and aggregate policies and regulations have been substantially reorganized and clarified. There are so many changes that normal editing cues, such as underlining, strikeouts and highlighted and bolded text, cannot be used in most situations. As a result, staff will use comment boxes, like this one, to explain where and why changes are made. In places where the changes are especially critical, existing text will be included in appendixes so comparisons can be made. The riparian corridor materials are not new. They were actually included in an earlier ordinance (2000-3). These provisions became controversial during hearings before the Board of County Commissioners and after adoption. As a result, the Board elected to remove them by adopting a new ordinance (2000-8) that repealed the riparian portions of the previous ordinance. Ordinance was thereafter submitted to the Department of Land Conservation and Development for acknowledgment. The Department granted partial acknowledgment and then remanded the Task back to the county. The county s mineral and aggregate provisions, except the ones requiring an impact area agreement, are acknowledged. Per the remand, the county must now either remove the requirement for an impact area agreement or obtain an executed regional problem solving agreement. In addition, the county must adopt a riparian corridor protection plan. A copy of a letter, dated January 15, 2004, from the Planning Director, Michael Snider, to the supervising DLCD official, Rob Hallyburton, summarizing the periodic review requirements is attached as Appendix 1 to this document. GOAL 7: PRESERVE VALUABLE LIMITED RESOURCES, UNIQUE NATURAL AREAS AND HISTORIC FEATURES OVERVIEW Josephine County is especially rich in natural and cultural resources that are important to the vitality of the local economy and the general livability of rural areas. These resources include mineral and aggregate deposits, riparian areas (rivers, streams, lakes, wetlands and adjoining land areas), groundwater resources, historic and archaeological sites, and scenic, recreation and wildlife areas. Many of these resources have been identified in inventories for their preservation and enhancement. It is therefore the purpose of this goal to develop policies, supported by implementing land use regulations, that will protect and enhance the county s natural and cultural resources in balance with individual property rights and competing land uses. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 1

5 POLICIES 1. Aggregate Resource Policies A. ADMINISTRATIVE RULE IMPLEMENTATION. The policies contained within this goal implement the requirements for the mining of significant mineral and aggregate sites as authorized by Oregon Administrative Rule (OAR), Chapter 660, Division 23, entitled, Procedures and Requirements for Complying with Statewide Goal 5, except as modified under Collaborative Problem Solving Authority as described in subsection C below. B. BASE INFORMATION. The policies contained within this goal are based in part upon documentation contained in the publications Josephine County Goal 5 Resources: Issues and Opportunities in Policy Formation, by Kevin Preister (October, 1996); Applegate Resource Committee Interim Report (July, 1997); and Aggregate Resources in Josephine County A Goal 5 Overview, by Grace M. Zilverberg, PhD (1995). 1 These publications are maintained in the Josephine County Planning Office library and are included in this policy by reference and are intended to provide important background information that may be helpful in applying aggregate resource policies. C. COLLABORATIVE REGIONAL PROBLEM SOLVING AUTHORITY. The standards and procedures for an Impact Area Agreement described within these policies and implemented in the Rural Land Development Code (code) are derived from Collaborative Regional Problem Solving Authority pursuant to ORS D. DEFINITIONS. The administration of this goal requires the use of terms that must be understood to correctly apply county policies. The following definitions shall therefore apply wherever appropriate, and shall be added to the Rural Land Development Code: COMMENT: The following definitions come from the OAR and contain critical information for terms used throughout the proposed policies. They were not included in the original mineral and aggregate work, but have been added here. They will also be included in the code. Users of the code could find these definitions in the OAR, but it is the county s service to make the code a one-stop document whenever possible by including important definitions. [1] Aggregate Resources are naturally occurring concentrations of stone, rock, sand, gravel, decomposed granite, limestone, pumice, cinders and other naturally occurring solid materials commonly used in road building or other construction. 1 The document Aggregate Resources in Josephine County A Goal 5 Overview, by Grace M. Zilverberg, PhD (1995) contains recommendations and policies based on the old Goal 5 Rule, OAR It is included for its background information and economic data only. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 2

6 [2] Conflicting Use is a use or activity that is subject to land use regulations and that would interfere with, or be adversely affected by, mining or processing activities at a significant mineral or aggregate resource site as specified in OAR [3] ESEE Consequences are the positive and negative economic, social, environmental, and energy (ESEE) consequences that could result from a decision to allow, limit, or prohibit a conflicting use. [4] Existing Site is an aggregate site that meets the definition for a significant aggregate site and was lawfully operating, or was included on an inventory of significant aggregate sites in an acknowledged plan on, September 1, [5] Expansion Area is an aggregate mining area contiguous to an existing site. [6] Impact Area is a geographic area within which conflicting uses could adversely affect a significant Goal 5 resource. [7] Inventory or Resource List is an acknowledged survey, map or description of one or more resource sites that is prepared or adopted by the county that includes information about location, resource values and features associated with the listed sites (includes plan inventories adopted under OAR A resource site may consist of a parcel or lot or portion thereof or may include an area consisting of two or more continuous lots or parcels. [8] Mineral Resources are solid materials and substances such as soil, coal, clay, stone, sand, gravel and metallic ore excavated for commercial, industrial or construction use from natural deposits, but does not include materials and substances described as aggregate resources. [9] Mining is the extraction and processing of mineral or aggregate resources as defined in ORS for farmland, and in ORS for land other than farmland. [10] Minimize a Conflict means to reduce an identified conflict to a level that is no longer significant. For those types of conflicts addressed by local, state, or federal standards (such as the Department of Environmental Quality standards for noise and dust levels) to minimize a conflict means to ensure conformance to the applicable standard. [11] Mining Area is the area of a site within which mining is permitted or proposed, excluding undisturbed buffer areas or areas where mining is not authorized. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 3

7 [12] PAPA is a post-acknowledgment plan amendment. The term encompasses actions taken in accordance with ORS through , including amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation. The term does not include periodic review actions taken in accordance with ORS through [13] Processing of Mineral Aggregate includes, but is not limited to, crushing, washing, milling and screening as well as the batching and blending of mineral aggregate into asphalt and portland cement concrete located within the operating permit area. [14] Protect means to adopt land use regulations for a significant mineral or aggregate site in order to authorize mining of the site. For purposes of deciding upon a program to protect a significant site as part of the ESEE analysis, protect also means to limit or prohibit new conflicting uses within the impact area of the site. E. BASIC MINERAL AND AGGREGATE POLICY. It is extremely important to the economy of Josephine County to have a stable and adequate supply of mineral and aggregate materials. It is also known that mining and hauling frequently involve significant impacts on nearby existing and future land uses and public facilities. These impacts may adversely affect the quality of rural residential uses and other natural resources. It is the basic policy of Josephine County to effectively address these conflicts during the permitting of new and expanded significant mineral and aggregate mining in ways that are consistent with the requirements of OAR , and which also honor and protect the county s exceptional rural environment. This basic policy shall be guided by the following sub-policies: COMMENT: This policy, as it now exists, mentions only aggregate. The periodic review task clearly requires the county to adopt policies, pursuant to Goal 5, for mineral and aggregate. Not every policy will apply to both activities. When this happens the language will state which activity is covered. [1] Application of Policies. The policies contained in this goal shall be applied to all mineral and aggregate sites that are found to be significant pursuant to OAR , or which were previously acknowledged on a county inventory of significant sites, but are subsequently authorized to mine pursuant to OAR or Not all policies apply to both significant mineral and aggregate resources. The applicability of individual policies to significant mineral and/or aggregate resource shall be noted in each policy. [2] Mineral and Aggregate Resource Zone. A new plan and zone category shall be established in county Goal 10 (Plan Categories and Zones), called the Mineral and Aggregate Resource Zone (MARZ). This zone PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 4

8 shall be used to implement the county s mineral and aggregate resource program for significant sites authorized pursuant to OAR [3] Significant Aggregate Sites. An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets the requirements found below in subsections (a) or (b), except as qualified by subsection (c): (a) A representative set of samples of aggregate materials in the deposit meet: (i) The applicable Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion and soundness; and (ii) The estimated amount of material is more than 500,000 tons; or COMMENT: The current policy specifies 60,000 cubic yards as the minimum amount of material for a significant site. This amount, computed in terms of tons, is about 100,000 tons. The OAR amendments completed in 2004 increase the limit to 500,000 tons, making the significant site designation even more restrictive. (iii) The aggregate site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, (b) (c) Notwithstanding subsections (i) and (ii) above, except for an expansion area of an existing site if the operator of the site had an enforceable property interest in the expansion area on March 1, 1996, an aggregate site is not significant if more than 35 percent of the proposed mining area consists of soil classified as Class I, Class II, or of a combination of Class I and Class II or Unique soil on Natural Resource and Conservation Service (NRCS) maps on June 11, An aggregate site on land zoned Exclusive Farm or Farm Resource (Farm Zones) is significant if: (i) (ii) (iii) The quantity of material proposed to be mined from the site is estimated to be 500,000 tons or less; and The site does not consist of soils as described in subsection [3](b) immediately above; or A local land use permit that allows mining on the site was issued prior to April 3, 2003, and the permit is in effect at the time of the significance determination. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 5

9 COMMENT: All of the language in subsection (c) comes from DLCD s 2004 amendments to OAR The change is intended to resolve a court decision out of Douglas County, known as the Beaver State case. This case held that only significant aggregate sites can be mined as a conditional use in the farm zones. The definition here makes all aggregate sites within the farm zones that have less than 500,000 tons significant. These sites now qualify for conditional use processes as provided in subsection [6] below. [4] Significant Mineral Sites. Mineral resource sites shall be considered significant when: (a) The site is listed as a significant mineral site in the county s 1985 inventory of significant mineral sites (Ordinance 85-12); or (b) The site is designated as a significant mineral resource site pursuant to the requirements of OAR COMMENT: Significant mineral sites have not been distinguished in the comprehensive plan or code from aggregate sites. The new amendments to the OAR, however, now distinguish the handling of the two resources. This new policy now defines significant mineral resource sites consistent with the new rule. The OAR referenced in subsection [4](b) is the standard process for inventorying Goal 5 resources. A copy of the rule is contained in Appendix 8. [5] Inventories for Significant Mineral and Aggregate Sites. The county shall maintain its existing inventories of significant mineral and aggregate sites by adding or deleting sites as needed and appropriate pursuant to these policies. It shall be the policy of the county to delete sites when they cannot be accurately located or become depleted. [6] Approval of Significant Aggregate Sites in Farm Zones. Applications to mine aggregate sites on lands zoned Exclusive Farm or Farm Resource, where the quantity of material proposed for mining is estimated to be less than 500,000 tons, shall be reviewed using conditional use procedures, standards and criteria as set forth in the Rural Land Development Code, subject to the following rules: (a) (b) (c) The site must be placed on the county s inventory of significant sites; and The conditional use permit shall not allow mining of more than 500,000 tons of aggregate material; and The conditional use permit shall determine the post-mining use of the property and provide for this use through post-mining zoning. For sites on Class I, II and unique farmland, the permit shall adopt regulations to limit post-mining use to farm uses listed in (1), fish and wildlife habitat or wetland mitigation banking. Post-mining regulations shall be coordinated with the PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 6

10 Oregon Department of Mining and Mineral Industries unless exempted by the Department. The mining of significant aggregate sites pursuant to this subsection shall not be subject to the basic aggregate policies applying OAR requirements for minimizing or resolving existing and new conflicting uses or obtaining an Impact Area Agreement, but shall be subject to the operating standards implemented through Article 91 of the Rural Land Development Code. COMMENT: All of the language in subsection [6] also comes from LCDC s 2004 amendments to OAR designed to fix the Beaver State case. The fix basically makes all aggregate sites on farm lands consisting of less than 500,000 tons of materials a significant site that can be approved as a conditional use. These sites still must be added to the county s inventory of significant sites, but are not required to go through the complex ESEE analysis procedures that apply to larger sites. [7] Existing Conflicting Uses. The mining of other significant mineral and aggregate sites shall be permitted as follows: (a) (b) AGGREGATE MINING. The mining of significant aggregate resource sites shall be permitted only when conflicts with existing land uses within the impact area have been minimized or allowed or limited after analyzing the ESEE consequences as required in OAR Other significant Goal 5 resources within the impact area that are shown on an acknowledged list of significant resources, and for which the requirements of Goal 5 have been completed at the time of the application, shall be considered an existing land use for the purpose of minimizing conflicts. MINERAL MINING. The mining of significant mineral resource sites shall be permitted using the procedures for the ESEE Decision Process contained in OAR COMMENT: The OAR changes made in 2004 distinguish the processes to be used for minimizing existing conflicting uses, and subsections (a) and (b) implement this change into the policy. The ESEE process to be used for significant aggregate sites is the special process contained in The ESEE process for significant mineral sites is the standard Goal 5 ESEE process contained in OAR (see Appendix 8). [8] New Conflicting Uses. The standard ESEE process in OAR and shall be used for new mineral or aggregate mining proposals to determine whether to allow, limit, or prevent new conflicting uses within the impact area of the site. This policy shall apply only to significant mineral or aggregate sites which PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 7

11 are designated and permitted under the requirements of OAR [9] Operating Standards. The county shall implement clear and objective development and operation standards for the approval of mineral or aggregate mining and processing sites located in the Mineral and Aggregate Resource Zone, and in other zones where mineral and aggregate mining and processing are allowed. These standards shall be implemented in Article 91 of the Rural Land Development Code. [10] Impact Area Agreements (IAA). It is the policy of Josephine County to encourage communication and cooperation between mineral or aggregate owners and/or operators and landowners within impact areas in a way that allows those most affected by mining to resolve the resulting conflicts. This policy shall be guided by the following sub-policies: (a) (b) (c) This policy does not apply to sites that were on an acknowledged county inventory of significant mineral or aggregate sites as of September 1, 1996, and which are subsequently authorized through conditional use or site plan review procedures only. Property owners and/or operators of significant mineral sites on any date, or significant aggregate sites before the 1996 date, may elect to use the rules and procedures contained in OAR , in which case the requirements for an IAA shall apply. The specific standards and procedures for obtaining an IAA shall be developed within the code in the Article 66.1 (MARZ). These standards and procedures shall require a good faith effort by the mine owner and/or operator to complete an IAA, but mining shall not be denied solely because the owner and/or operator fails to reach an IAA after following required procedures. The IAA may include terms and conditions that relate to existing and new conflicting uses and the operation and development standards contained in Article 91 of the RLDC. The terms and conditions of the IAA may modify, eliminate or add to the standards contained in Article 91. The IAA, however, shall not replace the county s responsibility to minimize conflicts or evaluate ESEE consequence as required by OAR Nevertheless, the county review body may consider the IAA in performing its minimization and ESEE responsibilities and give the document weight as it deems appropriate. The terms and conditions from the IAA may be incorporated in the county s findings and decision to allow, limit or not allow mining. COMMENT: Substantial changes have been made to the county s Basic Aggregate Policy as set forth above. Some changes are simply editorial and organizational, but others come from PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 8

12 the 2004 changes in the state administrative rule (OAR). Because these changes are so significant, a copy of the policy as it now exists is included as Appendix 2. This will allow careful comparison. Regional Problem Solving Authority. The whole concept of the IAA is outside of the OAR and cannot be approved except with regional problem solving (RPS) authority. Because the county was unable to obtain a RPS agreement, the IAA policy has not been acknowledged by the state. The county failed to obtain the RPS agreement because the Board adopted and then repealed riparian corridor protections. It is staff s desire to keep the IAA policy, but this depends entirely on whether the riparian corridor protections the Board adopts in this goaround satisfy all of the RPS stakeholders. 2. Riparian Corridor Resources Riparian corridor resources include but are not limited to surface waterways, waterbodies, wetlands and fish and wildlife habitats. Riparian corridors provide habitat that supports a great diversity of animal and plant species across the county s inland landscape, from high mountains to valley floors. These areas are especially important where other habitat areas have been modified by human activity. Riparian corridors are also critical to water quality by filtering sediment, capturing nutrients from overland flow, preventing the erosion of stream banks, and by maintaining low water temperatures in shaded areas. Riparian corridors also buffer other areas from flooding by collecting and detaining flood waters. Based upon all of these critical benefits, it shall be the policy of Josephine County to protect riparian corridors thorough the application of the following policies. A. INVENTORY OF RIPARIAN CORRIDORS. Josephine County shall adopt and implement an inventory of riparian corridors for all fish-bearing lakes and streams. This inventory shall be developed and maintained using information obtained from the following documents: [1] Oregon Department of Forestry stream classification maps; [2] United States Geological Service 7.5 minute quadrangle maps; [3] National Wetlands Inventory Maps; [4] Oregon Department of Fish and Wildlife maps indicating fish habitat; [5] Federal Emergency Management Agency flood maps; and [6] Aerial Photographs. Josephine County shall collate information from the foregoing sources and use it to identify lakes and streams that are located within significant riparian corridors. This information shall be rendered into digitized data sets that can be maintained and displayed using geographic information system computer mapping programs. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 9

13 COMMENT: The foregoing riparian corridor inventory requirements come directly from OAR (5) (See, Appendix 9). No changes to the rule are proposed here. B. DEVELOPMENT SETBACKS. The county shall implement minimum setback standards in the Rural Land Development Code to preserve and enhance habitat areas within significant riparian corridors. A graduating system of setback distances shall be applied to small, medium and large streams (as designated in the Oregon Department of Forestry stream classification maps). Minimum development setback standards shall also be implemented for streams that are designated as fish-bearing by the Oregon Department of Fish and Wildlife, for lakes, and for wetlands associated with significant riparian corridors. COMMENT: The safe harbor provision within the OAR calls for setbacks of 75' for streams with an average annual flow greater than 1,000 cubic feet per second, and 50' for all fishbearing streams with smaller flows, and for lakes. According to Lloyd Van Gordan, Senior Hydrographer for the Oregon of Water Resources Department (OWRD), two streams in Josephine County have an average annual flow that exceeds 1,000 cfs, and that is the Rogue River (entirely) and the Illinois River (after the East and West Forks join). Both of these streams call for a 75' setback. The OAR safe harbor then applies a 50' setback to all other fish-bearing streams in Josephine County that are smaller in size. Mr. Van Gordan s containing stream flow data is attached as Appendix 10. Regional Problem Solving Authority. Because the stream setback scheme carried over from Ord , as proposed in Policy 2.B above, uses the three DOF stream classifications, it adds an additional classification to the two used by the OAR safe harbor. This deviation alone requires regional problem solving authority. C. PROTECTION OF NATIVE VEGETATION. The county shall limit the removal of native vegetation within riparian corridors and shall encourage the reestablishment of native riparian vegetation. This policy shall be implemented as part of the setback program in the Rural Land Development Code through the requirement of mitigation plans where appropriate. COMMENT: As mentioned in the preceding comment, the policy proposed for riparian corridors in the Ordinance uses stream classification maps developed and maintained by the Oregon Department of Forestry. A large cylinder of these maps was presented during the hearings for adoption into the comprehensive plan. These maps are only one of five sources the county is required to consider in identifying the riparian corridor inventory that must be adopted. The six sources are listed in Policy 2.A above. OAR requires the county to either conduct its own inventory (quite expensive and difficult to do) or adopt an inventory based upon the six sources. The inventory based on the six sources then uses the 75' and 50' setbacks for streams above and at or below 1,000 cfs. This is the safe harbor option. The county does not have the expertise or resources to conduct its own inventory (the inventory process in the OAR takes up three pages of text; a copy of the rule is attached as Appendix 8). Since the time of Ord , the county s Geographic Information Services (GIS) Department has rendered the ODF maps into digital data sets and has worked with officials from the Oregon Department of Fish and Wildlife (ODFW) to capture fish-bearing and stream PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 10

14 information from its maps, which in turn utilize data from the other sources. This data is now upto-date and available for use in the county s land use mapping computer program that is used to issue development permits. This inventory is proposed to be included in the comprehensive plan, as proposed in Policy 2.A above. Setback distances will then be established on each side of these streams, thereby creating protection corridors. The setback scheme will be specifically implemented through specific provisions in Article 72 of the Rural Land Development Code, which are hereafter set out on starting on page 26 of this report. 3. Archeological Sites. Prior to the land use development of archeological sites in Josephine County, the Board of County Commissioners shall encourage the identification and preservation of such sites. When an archeological site is identified by a qualified archaeologist, Josephine County will evaluate the site for significance and protection using the provisions and procedures of Article 93, Archeological Resources, of the Rural Land Development Code. 4. Natural Areas. The Board of County Commissioners shall support the identification of significant natural areas and shall implement measures for evaluation and protection of sites as provided by federal or state rule or law. 5. Historic Sites. Prior to the land use development of historic sites in Josephine County, the Board of County Commissioners shall encourage the identification and preservation of such sites. A Historic Review Committee shall be established to mitigate adverse impacts to primary historic sites by reviewing development proposals affecting such sites according to the provisions and procedures contained in Article 94, Historic Buildings & Sites, of the Rural Land Development Code. 6. Wildlife Sites. A. BIRD HABITAT. The County shall encourage the identification and preservation of rookery or nest sites when the habitat has been documented as sensitive bird nesting, roosting or watering resource for osprey or great blue heron. Habitats documented on federal lands or within National Wild and Scenic River or Oregon State Scenic Waterway corridors shall be protected pursuant to federal and state requirements. Osprey and blue heron rookery sites located on private properties outside of the aforementioned scenic programs shall be inventoried and identified by the Oregon Department of Fish and Wildlife. All inventoried sites shall be protected by special setback restrictions as set forth in Article C of the Rural Land Development Code. COMMENT: This policy has been modified slightly to include the exact language used in OAR (4)(c) regarding the protection of osprey and great blue heron. The rule requires a program to protect habitat when it has been documented as sensitive bird nesting, roosting, PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 11

15 or watering resource site for osprey or great blue herons. To administer this policy, the county relies on an inventory created by the Oregon Department of Fish and Wildlife. While the administrative rule gives counties the authority to do their own osprey and great blue heron inventories, this work is beyond local expertise and funding. The safe harbor option in the administrative rule allows counties to use the ODFW inventories. At this point, the county is using the original 1985 inventories, which have not been updated. B. DEER HABITAT. The County shall encourage the identification and preservation of critical deer habitat areas., as follows: [1] Critical deer habitat areas shall consist of lands below 2500' in elevation that have not already been committed to land uses that preclude management options for deer. Critical deer habitat These areas shall be identified in conjunction with the Oregon Department of Fish and Wildlife. The Josephine County Geographic Information Systems Department shall thereupon render and maintain the deer winter range habitat areas in digitized data sets that can be maintained and displayed using a geographic information system computer mapping program. The data sets thus created are adopted into the county s comprehensive plan data base. The density of residential development within areas of critical deer habitat shall be restricted to protect the county s habitat sites pursuant to achieve an overall density of one dwelling per 40 acres within any two square miles of land, as implemented by Article 69.2 of the Rural Land Development Code. [2] The Deer Winter Range Map may be amended as it applies to specific lots or parcels when the application demonstrates the land is not critical black-tailed deer winter range habitat because: (a) (b) (c) (d) The land has not been used as winter habitat by significant blacktailed deer populations; and The land does not exhibit favorable black-tailed deer winter habitat characteristics, such as wedge leafed ceanothus, available overstory and water; or Even though the land exhibits favorable winter habitat described in (b) above, the land is isolated from migratory black-tailed deer herds due to legal and permanent development on the land and/or on surrounding lands (that is, impacted by development); and All of the foregoing circumstances are addressed by credible scientific and technical data, reports or other evidence from an expert in the field of big game habitat and management principles that demonstrates the land does not provide critical deer winter range habitat based upon consideration of factors (a), (b) and (c) as set forth above. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 12

16 [3] Josephine County shall consult with local officials from the Oregon Department of Fish and Wildlife regarding all proposals to amend the Deer Winter Range Map. The county shall provide local officials with a copy of all scientific and technical data, reports and other evidence specified in subsection 2(d) above. The department may submit its own scientific and technical data, reports and other evidence and may object to the proposed change. The county must consider this evidence and information in taking action on the map amendment application. [4] The Josephine County Geographic Information Systems Department shall render and maintain deer winter range areas in digitized data sets that can be maintained and displayed using a geographic information system computer program. The data sets thus created and maintained shall be adopted as a part of the Josephine County Comprehensive Plan. COMMENT: The amendments proposed here are intended to satisfy Task 2 of the county s periodic review agreement. The changes relate to the county s deer habitat policy and are designed to accomplish two important purposes. The first purpose is to provide a better explanation of critical deer winter range principles as it relates to the county s inventory map. This guiding language is presently missing in the goals and policies and the land development code. The added information is contained in various exhibits that were included with the 1985 implementing ordinance, but these documents are not easily available to users of the policies and development code. The second purpose has to do with the map amendment rules contained in the new subsection [2]. The Deer Winter Range Map is a comprehensive plan inventory and like all plan inventories can be amended to correct errors or respond to changes. However, a difficulty arises because the plan and code do not contain criteria to guide these amendments. Several applications over the last 10 years have encountered this problem. After researching all of the ordinance documents on the issue of deer winter range, which includes published reports and correspondence from the Oregon Department of Fish and Wildlife, staff was able to identify three main criteria. These criteria were then reviewed with regional ODFW staff, which resulted in modifications. Most differences appear resolved, but questions may remain about the circumstances needed to show when lands are impacted. The part of the staff report that compiled this information is attached as Appendix 3. With The fourth item requires the first three items to be supported by evidence from a credible wildlife expert. In addition, the county is required to consult with ODFW for proposed amendments, as has been done in all past applications, and wildlife officials from the department can further advise the county GOAL 10 of the Josephine County Comprehensive Plan shall be amended with the addition of the following policy statements: K. MINERAL AND AGGREGATE RESOURCE ZONE (MARZ). Properties which have been designated significant mineral or aggregate resource sites, and which have been approved for mining in compliance with the requirements of Oregon Administrative PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 13

17 Rule , shall be placed in the Mineral and Aggregate Resource Zone (MARZ). Significant aggregate sites located within the Farm Zones that qualify for review using conditional use procedures shall not be placed in the MARZ. COMMENT: This zone description was written as if it applied only to aggregate sites. Because the zone also applies to mineral sites, it has been amended to include mineral resources. The language has also been simplified. Also, a provision has been added to exclude the placement of significant aggregate sites that qualify for conditional use review, as now allowed by the 2004 OAR amendments. The original Policy K is attached as Appendix 4 for comparison. L. LIMITED DEVELOPMENT ZONE (LD). The Limited Development zone is intended to include lands that are suited for recreational activities, such as parks, campgrounds, lodges, resorts, natural history education programs and facilities, wildlife preserves or rehabilitation facilities, gun, archery and paintball clubs, bicycle and motorcycle race parks, and other similar activities. Other compatible resource and non-resource uses may also be appropriate for this zone. Suitable lands in existing farm and forest zones may qualify for Limited Development zoning when such lands are shown to be nonresource. The minimum parcel size for this zone shall be 20 acres, but larger parcel sizes are encouraged when needed to keep development from exceeding the carrying capacity features at the site, or to achieve compatibility with nearby resource uses. COMMENT: The Limited Development Zone was adopted into the RLDC in 1994 (Article 68) but a Goal 10 policy describing the zone was not created at this time. This oversight is being corrected with the proposed new subsection L. A copy of Article 68 is attached as Appendix RURAL LAND DEVELOPMENT CODE The Rural Land Development Code, Section , DEFINITIONS, shall be amended to insert or replace the following definitions. New Definitions: ESEE. An analysis of the given economic, social, environmental and energy consequences that result from allowing, limiting or prohibiting a particular land use. In some cases, the ESEE is used to assure the least impactive site will be devoted to a use not allowed by one or more statewide Planning Goals. In other situations, the ESEE is used by decision-makers after it is determined that conflicts between a proposed use and existing or allowed uses within an impact area cannot be minimized. When this happens, the ESEE is used to identify the consequences that will result from allowing, limiting or not allowing the proposed use. In all situations, the decision-maker must weigh the results from the ESEE analysis in reaching its decision. Certain aspects of the statewide Planning Goals 2 (Land Use Planning), 5 (Open Spaces, Scenic and Historic Areas and Natural Resources), 12 (Transportation) and 14 (Urbanization) require some level of ESEE analysis. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 14

18 ESEE CONSEQUENCES. The positive and negative economic, social, environmental, and energy (ESEE) consequences that could result from a decision to allow, limit, or prohibit a conflicting use. EXISTING SITE. An aggregate site that meets the definition for a significant aggregate site and was lawfully operating, or was included on an inventory of significant aggregate sites in an acknowledged plan, on September 1, EXPANSION AREA. An aggregate mining area contiguous to an existing site. INVENTORY OR RESOURCE LIST. An acknowledged survey, map or description of one or more resource sites that is prepared or adopted by the county that includes information about location, resource values and features associated with the listed sites (includes plan inventories adopted under OAR ). A resource site may consist of a parcel or lot or portion thereof or may include an area consisting of two or more continuous lots or parcels. MINERAL RESOURCES. Solid materials and substances such as soil, coal, clay, stone, sand, gravel and metallic ore excavated for commercial, industrial or construction use from natural deposits, but does not include materials and substances described as aggregate resources. MINIMIZE A CONFLICT. To reduce an identified conflict to a level that is no longer significant. For those types of conflicts addressed by local, state, or federal standards (such as the Department of Environmental Quality standards for noise and dust levels) to minimize a conflict means to ensure conformance to the applicable standard. PROCESSING OF MINERAL AGGREGATE. Includes, but is not limited to, crushing, washing, milling and screening as well as the batching and blending of mineral aggregate into asphalt and portland cement concrete located within the operating permit area. RIPARIAN AREA. The area adjacent to a river, lake, or stream, consisting of the area of transition from an aquatic ecosystem to a terrestrial ecosystem. RIPARIAN CORRIDOR. A Goal 5 resource that includes the water areas, fish habitat, adjacent riparian areas, and wetlands within the riparian area boundary. RIPARIAN CORRIDOR SETBACK. A certain horizontal distance upland from the top bank of a stream as specified in Article (Special Setback Requirements) creating an imaginary line demarcating the upper boundary of the regulated riparian area. This riparian area between the setback lines on each side of a stream is the "significant riparian corridor" under Statewide Goal 5. Replacement Definitions: AGGREGATE RESOURCES. Naturally occurring concentrations of stone, rock, sand, gravel, decomposed granite, limestone, pumice, cinders and other naturally occurring solid materials commonly used in road building or other construction. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 15

19 Old Definition: Naturally occurring concentrations of stone, rock, sand and gravel, decomposed granite, lime, pumice, cinders, and other naturally occurring solid materials used in road building and general construction. CONFLICTING USE. A use or activity that is subject to land use regulations and that would interfere with, or be adversely affected by, mining or processing activities at a significant mineral or aggregate resource site as specified in OAR Old Definition: A land use, or other activity subject to land use regulations, that could adversely affect a significant Goal 5 resource (except as provided in OAR (1)(b)- "Conflicting Use"). Agricultural practices are not considered conflicting uses. In regard to a significant aggregate resource a "conflicting use" is a use or activity that is subject to land use regulations and that would interfere with, or be adversely affected by, mining or processing activities at a significant mineral or aggregate resource site (as specified in OAR (4)(b). IMPACT AREA. A geographic area within which conflicting uses could adversely affect a significant Goal 5 resource. Old Definition: A geographic area within which conflicting uses could adversely affect a significant Goal 5 resource or uses of adjacent property could be affected by a Goal 5 resource. For significant aggregate resources the impact area shall be large enough to include the uses listed at OAR (4) (b), and shall be limited to 1,500 feet from the boundaries of the mining area, except where factual information indicates significant potential conflicts beyond this distance. MINING. The extraction and processing of mineral or aggregate resources as defined in ORS for farmland, and in ORS for land other than farmland. Old Definition: The extraction and processing of mineral or aggregate resources in all zones where it may be permitted including the Exclusive Farm Zone, in the manner provided under ORS (3) (Mining in Exclusive Farm Zones) as it is described on the effective date of this code or as it may be amended. That is, mining of aggregate resources includes all or any part of the process of extraction by the removal of overburden and the extraction of aggregate deposits thereby exposed by any method including open-pit mining operations, auger mining operations, processing, surface impacts of underground mining, production of surface mining refuse and the construction of adjacent or off-site borrow pits except those constructed for use as access roads. Mining does not include the following activities: A. Excavation conducted by a landowner or tenant on the landowner s or tenant s property for the primary purpose of reconstructing or maintaining access roads to the property. B. Excavation or grading occurring in the process of farm or cemetery operations at the site of the farm or cemetery. C. Excavation or grading conducted within a road right-of-way or easement for the primary purpose of road construction, reconstruction or maintenance of the road right-of-way or easement where the excavation or grading occurs. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 16

20 D. Excavation of minerals in conjunction with site preparation for other development which has been authorized by a county Development Permit. The excavation may be in conjunction with plans for building pad, parking, landscape and drainage improvements, or other similar development activities. PAPA. A post-acknowledgment plan amendment. The term encompasses actions taken in accordance with ORS through , including amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation. The term does not include periodic review actions taken in accordance with ORS through Old Definition: A "post-acknowledgment plan amendment." PROTECT. To adopt land use regulations for a significant mineral or aggregate site in order to authorize mining of the site. For purposes of deciding upon a program to protect a significant site as part of the ESEE analysis, protect also means to limit or prohibit new conflicting uses within the impact area of the site. Old Definition: To adopt land use regulations for a Goal 5 resource in order to limit or prohibit new conflicting uses within the impact area of the site Article 66.1, Mineral & Aggregate Resource Zone (MARZ) shall be replaced with the following new Article: ARTICLE MINERAL & AGGREGATE RESOURCE ZONE (MARZ) PURPOSE The purpose of this zone is to implement the objectives of Josephine County Comprehensive Plan Goal 7, Policy 1, regarding the mining of significant mineral and aggregate resources within Josephine County. Lands that have been designated as a significant mineral or aggregate site and approved for mining pursuant to the requirements of Oregon Administrative Rule (OAR) (Mineral and Aggregate Resources), must be placed within the MARZ. Significant aggregate sites located within the Farm Zones that qualify for review using conditional use procedures shall not be placed in the MARZ OUTRIGHT USES The following uses shall be allowed outright on lands in the MARZ. No permit or authorization is required to conduct these uses. Structures placed in conjunction with outright uses shall be permitted using Ministerial Review Procedures (Article 22), be subject to the applicable development standards of , and require a Development Permit (Article 41) for final approval. A. Agriculture, farming, and related farm use, as defined in ORS PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 17

21 B. Conservation and management of fish and wildlife resources C. Fish and wildlife habitat enhancement D. Forest operations or forest practices including, but not limited to, reforestation of forest land, road construction and maintenance, harvest of forest tree species, application of chemicals, and the disposal of slash where such uses pertain to commercial forest activity: 1. If the volume of wood exceeds 8 commercial truck loads per day, any access road, service road, or unpaved public road, while used for log-hauling, shall receive daily dust abatement or shall be treated with an oil surfacing by the operator, for a distance of 500 feet from a surfaced road or highway or residence located on adjoining property; 2. If more than one commercial log-hauling operation uses the road for log hauling purposes, all operators shall be jointly responsible for dust abatement as previously described E. Temporary on-site structures and physical alterations to the land which are auxiliary to and used during the term of a particular forest operation or practice. Alterations include but are not limited to those made for the purposes of mineral exploration, mining, gravel extraction and processing, landfills, dams, reservoirs, road construction or recreational facilities: 1. For the purposes of this subsection, "auxiliary" means a use or alteration of a structure or land which provides help or is directly associated with the conduct of a particular forest practice. An auxiliary structure is located on site, is temporary in nature, and is not designed to remain for the forest's entire growth cycle. An auxiliary structure is removed when a particular forest practice has concluded F. The creation of, restoration of or enhancement of wetlands G. Uses to conserve soil, air and water quality and watershed management PERMITTED USES The following uses, with accessory uses, shall be permitted using Ministerial Review Procedures (Article 22), unless Site Plan Review is required (Article 42), in which case uses shall be permitted using Quasi-Judicial Review Procedures (Article 22). Uses shall also meet the applicable development standards listed in Section In all cases except farm uses, a Development Permit shall be required for final approval (Article 41). A. Exploration for mineral and aggregate resources as defined in ORS Chapter 517 B. Mining and processing of mineral and aggregate resources subject to the conditions under which mining is permitted in the MARZ approval, or the Special Property PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 18

22 Development Standards contained in Article (Special Property Development Standards for Aggregate Operations) C. Private hunting and fishing operations without any lodging accommodations D. Single-family dwelling (legal dwellings existing at the time of the land is zoned in the MARZ only) COMMENT: The existing version of Article does not list single-family dwellings as a permitted use. Dwellings would certainly be considered a conflicting use with most mining operations and a mining zone should not encourage conflicts. It is possible, however, for a large mining property to have an existing dwelling that is located out of the impact area, or situated in such a way that impacts can be minimized. This listing will allow the dwelling to continue as a permitted use, instead of a non-conforming use. The ability to replace non-conforming uses, even when removed by natural calamity, is qualified. This limitation should be avoided, especially since the MARZ contemplates the site will be rezoned to another zone when mining is completed, and this new zone is likely to allow single-family dwellings. E. Temporary, portable facilities for the primary processing of forest products F. Uninhabitable structures accessory to fish and wildlife enhancement G. Water intake facilities, canals and distribution lines for farm irrigation and ponds CONDITIONAL USES The following uses, with accessory uses, shall be authorized using Quasi-Judicial Review Procedures (Article 22), subject to the requirements for Conditional Uses (Article 45) and Site Plan Review (Article 42). All uses shall also meet the applicable development standards listed in Section of this Article. A Development Permit (Article 41) shall be required for final approval. A. Caretaker or night watchman s manufactured dwelling when used in conjunction with the uses listed in Articles (Outright Uses) (Permitted Uses) and (Conditional Uses) B. Cement and asphalt batching, rock processing and crushing (requested independently of a mining operation approved under Article , and subject to the special property development standards for aggregate operations specified in Article of this code) C. Dog kennels D. Home occupation (in conjunction with existing legal single-family dwelling only) E. Log scaling and weight stations F. Permanent facility for the primary processing of forest products G. Personal use landing strips used in conjunction with a use permitted by this Section PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 19

23 H. Propagation, cultivation, maintenance and harvesting of aquatic species I. Public and private utilities J. Solid waste disposal at site approved by the governing body of the county and for which a permit has been granted under ORS by the Department of Environmental Quality together with equipment, facilities or buildings necessary for its operation PLACING LAND WITHIN THE MINERAL AND AGGREGATE RESOURCE ZONE COMMENT: This following section has been completely rewritten and reorganized and updated with the new OAR changes. This Section, as it now exists, also contains a serious interpretation problem. The impact area agreement (IAA) strategy (subsections B and C below) requires regional problem solving authority because it adds application requirements that are above and beyond those required in the OAR. This strategy apparently had both county and state support when originally adopted in November of However, the current language does not explain how the IAA is supposed to function in relationship to the OAR. Is the IAA supposed to replace the county s duty to minimize existing and new conflicting uses within the impact area, and if not minimized, perform ESEE procedures to establish a policy to resolve these conflicts? A reading of the existing language seems to support replacing the OAR procedures with the IAA because the IAA covers all of the same topics and contains no language about how to resolve differences between the IAA and the OAR when they result in conflicting results. The planner who handled the aggregate/riparian project back in 2000 says the IAA was not intended to replace the OAR procedures. 3 Based on the foregoing, Section has been rewritten. This new language describes the IAA as essentially a recommendation to the county from the property owners within the impact area about how new and existing conflicts are to minimized, limited or resolved. The county is authorized to consider this evidence and give it as much weight as it deems appropriate in reaching a decision. While the IAA does not replace the county s duties under the OAR to analyze conflicts, it is hard to imagine such an agreement not having great weight in the county s decision-making. A copy of the current Section is attached as Appendix 6 for comparison. Also, OAR , adopted by LCDC on June 14, 2004, is attached as Appendix 7. The 2 In order to get statutory regional problem solving authority to deviate from the OAR, the county must produce an agreement signed by all of the identified stakeholders. This agreement seemed to be in place until the Board adopted Ordinance , which removed the riparian protection program from the package. When this happened, the stakeholders withdrew support for the aggregate package. Therefore, the IAA scheme has not been acknowledged by the state, and must be removed from the comprehensive plan unless the county can support it with a completed regional problem solving agreement. Staff hopes to obtain a regional problem solving agreement. 3 The planner handling the aggregate/riparian project was John Renz, then the county s Senior Planner. John is now the Southern Oregon Regional Representative for the Oregon Department of Land Conservation and Development. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 20

24 Sections to look at that deal with minimizing conflicts and ESEE procedures are 0180(2)(d) (new off-site conflicting uses) and 0180(5). Only lands that are determined to be a significant mineral and aggregate site (including on-site buffer areas in the control of the mine operator or owner), and which have been authorized for mining pursuant to OAR (Mineral and Aggregate Resources), shall be placed within the MARZ. Significant aggregate sites located within Farm Zones that qualify for review using conditional use procedures shall not be placed in the MARZ. An application to designate lands within the MARZ shall meet the following requirements: A. Application Requirements. An application to amend the comprehensive plan and zone maps shall be submitted with the required fees. The application content shall comply with Article (Plan Amendment Application Requirements) and with OAR (Post-Acknowledgment Plan Amendment Application Requirements). The application shall demonstrate compliance with the criteria contained in Article (Plan Amendment Review Criteria) and OAR (Definition of Significant Site; Impact Area Conflict Minimization/Resolution; Limitation of New Conflicting Uses). B. Impact Area Agreement. In addition to the application requirements specified in Section A immediately above, the application shall include an Impact Area Agreement (IAA), if possible. The IAA, at a minimum, shall: 1. Establish an impact area that complies with the requirements of OAR Describe the existing and potential uses within the impact area that will be adversely affected by proposed mining operations consistent with OAR Contain agreed measures that are designed to minimize conflicts between the proposed mining operation and existing uses within the impact area. 4. Contain an agreement about whether new conflicting uses will be allowed, limited or prevented, and how this will be accomplished. 5. Contain an agreed list of operational standards for the mining operation. The standards may be the same or different from those contained in Article (Special Property Development Standards for Mineral and Aggregate Operations), but they shall not conflict with the requirements of OAR ). COMMENT: The existing Section does not make it clear whether the IAA can modify the local standards for mineral and aggregate operations, but this authority is strongly implied. The authority to modify is given by this subsection, provided the modifications do not violate the OAR. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 21

25 6. Contain an agreed post-mining use of the site that complies with OAR Contain a process for modifying the agreement and/or resolving questions about the meaning or performance of the agreement. 8. Specify the duration of the agreement. 9. The IAA shall be binding between the operator and all property owners within the impact area who sign the agreement. As between the aggregate operator and property owners within the impact area who do not sign the agreement, the operation shall be subject to the provisions of Article A (Significant Aggregate Site Protection Area), Article (Special Property Development Standards for Mineral and Aggregate Operations), and provisions for limiting or preventing new conflicting uses within the impact area adopted in compliance with OAR When less than all of the impact area property owners sign the agreement, and a conflict exists between the standards specified in the IAA and the standards required by Articles A and , and it is not possible to perform both standards, the standards required by this code shall be performed. COMMENT: The current Section says that the IAA only binds the property owners who sign the agreement. If other impact area owners do not sign the agreement, the current Section says these owners are bound by the operating standards contained in Article 91. This approach can lead to the situation where the aggregate operator/owner has two different sets of operating standards. Not only is it possible that these standards might conflict, but they might also be mutually exclusive, that is, if the operator/owner performs one standard, he violates the other. Subsection 9 resolves this possible conflict by making the standards in Article 91 the default when there is a unresolvable conflict. 10. The IAA shall not replace the county s responsibility to address requirements to minimize conflicts or evaluate ESEE consequence for existing or new uses as required by OAR Nevertheless, the county review body may consider the IAA in performing its minimization and ESEE responsibilities and give the document the weight it deems appropriate. The terms and conditions from the IAA may be incorporated in the county s findings and decision to allow, limit or not allow mining. COMMENT: As noted in the previous comment, existing language does not make it clear how the IAA relates to the OAR procedures for minimizing conflicts with existing uses. The problem is resolved here by allowing the county to consider the IAA in reaching its decision. To the extent the agreement is reasoned, effective and supported by most of the impact area residents, it will likely be persuasive evidence in the ESEE process. 11. The IAA may be submitted with the application to mine or any time within 30 days after a completed application is accepted by the county. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 22

26 C. Failure to Obtain an Impact Area Agreement. If the mine operator is unable to enter into an impact area agreement with any of the property owners within the impact area, documentation of the operator s efforts to reach such an agreement shall be submitted to the Planning Director with the application or within 30 days from the time when a completed application is accepted by the county. The documentation shall include: 1. Copies of certified mail receipts to all impact area property owners showing the arrangement of at least three meetings between the mine operator and impact area property owners; and, 2. Copies of written or recorded minutes from the meetings described in subsection 1 above, together with a written itemization of the time, date, location, list of attendees. The minutes shall accurately represent the discussion and shall document any issues raised by parties and any response to these issues; and, 3. The review body may require a written report by an independent and qualified professional mediator setting forth the history of the meetings and other relevant communications between the participants, to include a explanation and analysis of the unresolved issues. COMMENT: No changes are proposed in the foregoing subsection C. D. Significant Riparian Corridors. Mining proposals considered under this Section shall demonstrate that all conflicts with acknowledged significant riparian corridors have been minimized or resolved by an ESEE analysis. In addition to the notice requirements otherwise required by Chapters 2 and 4 of this code, written notice shall be given to the Oregon Departments of Geology and Mineral Industries (DOGAMI), Division of State Lands (DSL), Environmental Quality (DEQ) and Fish and Wildlife (ODFW) for mining proposals that will impact an acknowledged significant riparian corridor SPECIAL MULTI-AGENCY REVIEW CONFERENCE In addition to the requirements for a pre-application review contained in Article 21, the applicant is encouraged to hold a conference with the planning office and DOGAMI, DSL, DEQ and ODFW to determine the scope of issues, the need for any special studies (such as archaeologic surveys, sensitive species inventories, or a channel stability analysis), and coordination of the application between involved agencies regarding the application. A goal of this conference is to minimize the applicant's expense during the initial county approval process while making all application materials available to affected state agencies SITE RECLAMATION No mining operation authorized pursuant to this Article shall commence without the operator furnishing to the Planning Director a copy of a DOGAMI operating permit and approved reclamation plan, or a certificate of exemption, issued pursuant to the requirements of ORS through (Reclamation of Mining Lands) and implementing administrative PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 23

27 rules. The county shall defer to DOGAMI regarding all aspects of the reclamation plan and its administration. However, the reclamation plan shall be substantially consistent with the conceptual reclamation plan presented to the county during the application process to comply with OAR (Mineral and Aggregate Resources). For these reasons the applicant is encouraged to make concurrent applications with the county and DOGAMI GENERAL PROPERTY DEVELOPMENT STANDARDS All uses authorized by the Article are subject to certain additional permit, process and property development standards that are contained elsewhere in this Code. The following is a list of Articles that are or may be applicable: A. Permit Review Requirements Basic Review Provisions Article 20 Pre-Application Review Article 21 Permit Review Procedures Article 22 Basic Application Requirements Article 40 Administration of Permits Article 41 Site Plan Review Article 42 Variances Article 44 Conditional Uses Article 45 B. Property Development Standards Access - See Article 81 Aggregate Standards - See Article 91 Deer Overlay - See Article 69.2 Erosion and Sediment Control - See Article 83 Flood Hazard Overlay - See Article 69.1 Minimum Lot Size No Requirement Parking - See Article 75 Setback Requirements - See Section Utilities - See Article 85 Water Standards - See Article 84 PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 24

28 Replace Subsections A and B of Article as follows: ARTICLE 72 - HEIGHTS, SETBACKS & ACCESSORY STRUCTURES SPECIAL SETBACK REQUIREMENTS Special use and structure siting restrictions shall apply to development within the following protected areas: A. Significant Mineral & Aggregate Site Setback Area. The following special setback rules apply to significant mineral and aggregate sites existing on the county s acknowledged inventories as of April 18, 2001, unless different measures are established pursuant OAR or an Impact Area Agreement (IAA) that complies with the requirements of Article B of this code. In applying significant aggregate site setbacks, the following rules shall apply: 1. The setback area shall be 500' in all directions from the mining area. This setback area shall apply only to significant mineral and aggregate sites that are or have been in lawful operation, and only where the mine owner or operator provides the planning office with a scaled map that accurately depicts the mining area. New or modified conflicting uses shall not permitted within the setback area unless authorized by this Section. 2. When significant mineral or aggregate sites have not been lawfully mined, the following rules shall apply: a. The mining area must be located at least 500' from the nearest existing conflicting use. In order for mining to be authorized, the owner or operator must provide a mining area map that demonstrates the mining area is located at least 500' from all existing conflicting uses. b. Once mining is authorized, new or modified conflicting uses and structures shall be prohibited within the setback area unless modified as provided herein. 3. The requirements of subsection 1 and 2 above may be modified or waived by an IAA or a program to minimize impacts or resolve conflicts has been adopted pursuant to the requirements of Article In all cases where new or modified conflicting uses or structures are authorized within the setback area, the permit shall not be issued until the developing owner executes and records a restrictive covenant that specifies the owner waives the right to object to the mining or processing of mineral and/or aggregate resources at the site. COMMENT: This aggregate setback provision is changed to also cover significant mineral sites. It is important to keep in mind that the 500' setback requirement only applies to existing PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 25

29 significant sites for which mining areas have been mapped and submitted to the planning office. B. Riparian Corridor Setback. Riparian corridor setbacks are established to protect acknowledged significant riparian resources. Riparian resources shall be protected by following special setback requirements: 1. SETBACK CLASSIFICATIONS. Riparian corridor setbacks shall be classified as follows: a. Large Streams. All streams designated as large in the county s riparian corridor resource Geographic Information Systems (GIS) digitized computer maps shall have a setback of 75 feet upland from the top of each bank. b. Small and Medium Fish Bearing Streams and Lakes. All streams designated as small or medium and fish-bearing on the county s GIS digitized computer maps for riparian corridor resource and lakes shall have a setback of 50 feet from the top of each bank or the high water point along the lakeshore. c. Other Streams. All other streams that are designated as non-fish bearing on the county s GIS digitized computer maps for riparian corridor resource shall have a setback of 25 feet from the top of each bank. d. Wetlands Included. When a riparian corridor includes all or a portion of one or more significant wetlands as described in the Statewide Wetland Inventory adopted per Oregon Revised Statutes, Chapter 196, the setback distance from the riparian corridor shall be measured from, and include, the upland edge of the wetland. COMMENT: Regional Problem Solving. Subsections B.1.a and c exceed the OAR safe harbor requirements and therefore must be supported by a completed Regional Problem Solving (RPS) agreement. This is because: B.1.a The safe harbor specifies a 75' setback distance for large streams with flows greater than 1,000 cfs. The stream setback proposal originally adopted in Ordinance (but later repealed by Ord ) is based upon stream maps from the Oregon Department of Forestry. ODF designates large streams as those having flows of 10 cfs or greater. Based upon data supplied by the Oregon Water Resources Department, only the Rogue River and the Illinois River (after the East and West Forks merge), have flows greater than 1,000 cfs. The proposed setbacks from Ordinance will apply the 75' setback to 145 streams, and therefore exceeds the number of streams covered by the safe harbor by 143. B.1.b The safe harbor specifies a 50' setback for all fish bearing streams having flows of 1,000 cfs or less. All of the streams proposed for the 50' setback under this subsection conform to the safe harbor. B.1.c The safe harbor makes no provision for a 25' setback. The proposal in this PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 26

30 subsection creates a new category and setback distance that is entirely outside of the safe harbor. Using GIS mapping and data services, staff analyzed three setback options to compare regulatory impacts for each. This information is reported in the following tables: STREAM SETBACK OPTIONS Comparison of Standards OPTION STEAM CLASSIFICATION AVERAGE FLOW FISH BEARING Current Code ODFW Class 1 50 feet Class 2 25 feet N/A Both Fish Bearing & Non-Fish Bearing OAR Safe Harbor N/A 1,000 cfs 75 feet 1,000 cfs and 50 feet Fish Bearing Only Ord ODF Stream Maps 10 cfs 75 feet Between 2-10 cfs 50 feet 2 cfs + Fish Bearing 50 feet 2 cfs + Non-Fish Bearing 25 feet STREAM SETBACKS BY OPTION (Number of Streams Affected) OPTION 75' 50' 25' TOTAL Current Code ,486 4,933 OAR Safe Harbor 2 4, ,128 Ord , ,912 STREAM SETBACKS BY OPTION (Miles of Streams Affected) OPTION 75' 50' 25' TOTAL Current Code 0 1,319 2,504 3,823 OAR Safe Harbor 217 2, ,154 Ord , ,722 STREAM SETBACKS BY OPTION (Number of Privately Owned Tax Lots Affected) OPTION 75' 50' 25' TOTAL Current Code 0 4,575 6,872 10,349 OAR Safe Harbor 791 8, ,475 Ord ,608 1,723 10,950 PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 27

31 Regarding setbacks to protect riparian corridors, the county has three choices: (1) It can conduct its own stream inventory and then implement a protection program using the ESEE decision process; or (2) It can adopt a state based stream inventory and then implement the safe harbor setback standards; or (3) It can vary the safe harbor setbacks using regional problem solving (RPS) authority. As mentioned earlier, the first option of doing its own inventory, followed by an ESEE derived protection program, is beyond county resources. This means only the safe harbor and the RPS options are realistic. Using the information depicted in the tables, a comparison of the safe harbor and Ord options produces the following observations. First, the most obvious difference is that Ord will extend the 75' setback area to 143 additional streams. This will increase the miles of stream of protection from 217 to 855. The number of additional privately owned tax lots affected by the 75' setback is 2,043. Regarding the 50' setback, the number of affected streams remains almost identical, with a few more streams covered by the safe harbor (4,126 vs. 4,120). However, Ord would affect fewer miles of stream (2,937 vs. 2,336). The number of privately owned tax lots that are affected will also decrease under Ord (8,821 vs. 7,608). The 25' setback for other streams proposed in Ord is not called for by the safe harbor. This setback will apply to 647 additional streams, involve 631 additional miles of stream, and affect 1,723 additional privately owned tax lots. In terms of total numbers, the Ord option will apply to 784 more streams than the safe harbor option, involve 568 additional miles of stream, and affect 1475 more privately owned tax lots. The staff report that accompanied Ord provides some reasoning for expanding on the safe harbor requirements. The report states, Early in the project ARC [Applegate Resource Committee] consulted with federal and state agency biologists to determine how best to protect wildlife. It was the consensus of these scientists that a riparian corridor that includes tributary streams was the most comprehensive protection that could be provided. This approach provides a continuous wildlife corridor between the higher elevations in a watershed and the bottom lands. (Staff Report, December 15, 1999, at p. 28) Later, the staff report cites the 75' safe harbor setback requirement and notes that only one stream in Josephine County would be covered, that is, the Rogue River. The report then states, There is some question whether the 75 feet is sufficient to provide an adequate riparian area to produce water quality and habitat benefits. * * * * We received comments from Fish and Wildlife that most studies recommend a setback width of 100 to 400 feet, with greater width providing more benefits to wildlife. These comments recommend we increase the setback to 100 feet for large streams, medium streams to 70 feet and all other streams to 50 feet. We are well aware of the surveys of the scientific studies on setback size (two are included in the appendix to this proposal) 4 and we 4 The two reports mentioned here were not included as appendixes to the staff report. The table of contents for the same staff report, however, lists the reports, but then says they are bound separately PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 28

32 understand that wildlife would benefit substantially from wider setbacks. (At pp ). The two reports referenced above are: (1) Castelle, Johnson and Conolly, Wetland and Stream Buffer Size Requirements, a Review. Journal of Environmental Quality 23: ; and (2) Johnson and Ryba, A Literature Review of Recommended Buffer Widths to Maintain Various Functions of Stream Riparian Areas; Prepared for King County, Washington, Surface Water Management Division. The 1994 Castelle report states that buffer (that is, setback) sizes are a critical factor in maintaining healthy riparian corridors, and how large the setback needs to be depends on a number of considerations: Generally, smaller buffers are adequate when the buffer is in good condition (e.g., dense native vegetation, undisturbed soils), the wetland or stream is of relatively low functional value (e.g., high disturbance regime, dominated by nonnative plants), and the adjacent land use has low impact potential (e.g., park land, low density residences). Large buffers are necessary for high value wetlands and streams that are buffered from intense adjacent land uses by buffers in poor condition. (at p. 878) The report concludes: From the literature, it appears that buffers less than 5 to 10 m [15 to 33 feet] provide little protection of aquatic resources under most conditions. Based upon existing literature, buffers necessary to protect wetlands and streams should be a minimum of 15 to 30 m [50 to 100 feet] in width under most circumstances. Generally, minimum buffer widths toward the lower end of this range may provide for the maintenance of the natural physical and chemical characteristics of aquatic resources. Buffer widths toward the upper end of this range appear to be the minimum necessary for maintenance of the biological components of many wetlands and streams. Note, however, that site specific conditions may indicate the need for substantially larger buffers or for somewhat smaller buffers. (at p. 881). The 1992 King County report reaches similar conclusions, and may be summarized by the following excerpts: The effects of land uses on riparian areas can be multiple and varied, depending on the type of land use, degree of disturbance to streamside vegetation, size of stream, physical setting, and succession after disturbance. While land use may vary, the resulting environmental alterations generally affect riparian systems in similar ways. (at p. 4) and available at the planning office for review. The reports have been located and will be summarized in following comments. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 29

33 The effects of altering streamside vegetation, particularly overhead canopy, have been the subject of considerable research and many reviews. Significant alteration to or removal of overhead canopy allows increased direct sunlight to reach the stream. Direct sunlight, especially in the summer, can increase stream temperature and in turn affect fish and aquatic insect species composition and growth. (at p. 5) Widths for vegetated buffers recommended by various investigators varies widely depending on the specific resources or function to be maintained. The buffer widths recommended by 38 separate investigators to maintain seven major riparian functions ranged from 3 to 200 meters [10 to 650 feet]. (at p. 5) The efficacy of vegetated buffers in maintaining water quality, including sediment removal, fecal coliform reduction, nutrient reduction, and stormwater runoff management generally increases with increasing buffer width. Most investigators recommend buffer widths of 30 to 122 meters [98 to 400 feet]. (at p. 6) A large buffer in area of high-intensity land use, for example, is more essential than in low-intensity land use areas. Similarly, all other factors being equal, a sensitive area such as a small tributary will benefit more from a large buffer than does a large river. (at p. 11) Buffers of 15 to 30 meters [50 to 100 feet] provide minimal maintenance for most functions; buffers greater than 30 m (30-50 m) [100 to 165 feet] appear to provide adequate protection for most of the functions listed. (at p. 13) 2. RIPARIAN CORRIDOR DEVELOPMENT. Development within a riparian corridor by fill or excavation, by placement of structures, by construction of impervious surfaces, or by removal of vegetation (with or without other development) is prohibited, except as listed below. Approval of the following activities shall require a pre-application review pursuant to Article (Initiation of Site Plan Review), and must be authorized by a development permit pursuant to Article (Development Permits), prior to development. A riparian area mitigation plan may be required. a. Streets, roads, and paths; b. Drainage facilities, utilities, and irrigation pumps; c. Water-related and water-dependent uses; d. Replacement of existing structures with structures in the same location that do not disturb additional riparian surface area; e. Reclamation activities intended to enhance riparian habitat; f. Improvements to fish habitat or fish passage; PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 30

34 g. Aggregate mining between the banks of the stream; and h. Forest practices in the farm or forest resource zones where the forest practice is authorized by a permit issued under the Oregon Forest Practices Act; and i. Removal of non-native vegetation when replaced with native plant species. 3. VARIANCES. ExceptionsVariances may be granted to the general prohibition of development within restrictions on riparian corridors development as specified in subsection 2 above. Requests to allow development Exceptions shall require a variance application and shall utilize variance procedures as set forth in Article 44 (Variances), but shall be judged on the following rules and criteria only: a. The development will result in equal or better protection for the riparian area because the riparian area will be restored, buffered, or enhanced through other special measures; and b. The exception will not authorize alterations to occupy more than 50 percent of the width of the riparian area measured from the upland edge of the corridor; or c. The existing lot or parcel proposed for development will be rendered undevelopable by the application of the riparian setback. d. A riparian area mitigation plan shall be required for all circumstances covered by subsections a, b and c above. The requirement for a mitigation plan may be waived if both the county and the Oregon Department of Fish and Wildlife agree a mitigation plan is unnecessary. e. Notice of all variances, to include copies of proposed mitigation plans, if not waived, shall be given to the Oregon Department of Fish and Wildlife, the Division of State Lands, and the Department of Environmental Quality consistent with the notice requirements contained in Section (Mailed Notice). COMMENT: The riparian setback provisions set out above are essentially the same provisions the Board removed from the earlier aggregate/riparian work in 2000 and they follow the OAR requirements. This version, however, does make editorial and organizational revisions to the earlier work, but none alter the setback and process requirements in any significant way. As a special note, this provision can be used to allow wildfire hazard mitigation by vegetation removal within the corridor, as long as the plan follows the variance criteria and procedures listed in this subsection. C. Rookery or Nest Sites. There shall be a structure setback of 300 feet from rookery or nest sites when the habitat has been documented on an inventory as a sensitive bird nesting, roosting or watering resource for osprey or great blue heron by the Oregon PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 31

35 Department of Fish and Wildlife (ODFW), and the inventory has been furnished to Josephine County. A variance may be authorized to this setback requirement when adverse impacts to the rookery or nest site are resolved by an approved mitigation plan. The ODFW shall be given 30 day prior written notice of the proposed setback exception, to include a copy of the mitigation plan. The department may comment on the plan or object to the proposed development. The variance shall be processed using variance procedures as set forth in Article 44 (Variances), but shall be judged solely on whether the site continues to be a significant habitat site or whether the proposed plan adequately mitigates adverse impacts to the involved rookery or nest site. COMMENT: The existing language in this provision has been revised in two ways. First the language has been changed to include the specific Goal 5 language that describes protected osprey and great blue heron habitats. The Goal 5 language in question reads rookery or nest sites when the habitat has been documented as a sensitive bird nesting, roosting or watering resource for osprey or great blue herons (OAR (4)(c). The second change provides more detail with the variance procedures for allowing modification using mitigation plans. The existing language simply says the county shall consult with Oregon Department of Fish and Wildlife officials to mitigate impacts within the setback area but does not say how requests are processed. All other modifications of setback requirements use variance procedures and there is no reason to treat nest or rookery setbacks differently. Hence, the new language creates an application procedure (variance) for processing mitigation plans. The variance request and a copy of the mitigation plan must be furnished to ODFW at least 30 days prior to action. The existing provision is short and is included here for comparison: There shall be a structure setback of 300 feet from significant rookeries or nest sites identified by the Oregon Department of Fish and Wildlife and located as a Goal 5 Resource on the official zoning maps for Josephine County. The Department of Fish and Wildlife has mandated consultation with them to mitigate impacts for all development closer than 300 feet. Amend Article (Initiation of Site Plan Review), by adding the following underlined language: INITIATION OF SITE PLAN REVIEW A. The following requests shall require a pre-application review for site plan review pursuant to Article 21 of this code: 1. The expansion, alteration or replacement of a use or structure lawfully established prior to being listed as a conditional use, or which was previously approved as a conditional use; 2. The resumption of conditional use activities within structures that have been destroyed by casualty; PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 32

36 3. Development permits within any commercial or industrial zone that involve the enlargement of existing structures or the construction of new structures or public facilities; 4. Permits for the exploration, mining and processing of aggregate or other minerals, including geothermal resources; 5. Development within a Floodway Hazard Area, or development that requires review of a riparian corridor development mitigation plan required by Article 72 (Special Setback Standards), an erosion control plan and/or storm drainage facility pursuant to Article 83 (Erosion Control & Storm Drainage Facilities), or development that requires review of a wildfire hazard mitigation plan pursuant to Article 76 (Wildfire Safety Standards) or some other land use approval; and 6. Accessory structures that exceed the cumulative size limits contained in Section Any other request when the Director believes the facts and circumstances indicates the more comprehensive review afforded by site plan review is justified. B. At the completion of pre-application review, the Planning Director may initiate site plan review when the Director has reason to believe one of the following circumstances may exist: 1. The development involves the potential for significant impact(s) on surrounding properties, public facilities or transportation systems, or will adversely affect environmental concerns such as wildfire, flooding, erosion control, or wetland, wildlife habitat and watershed preservation, or other similar concerns; or 2. Review of the application will be enhanced by a thorough factual investigation through inter-agency or inter-jurisdictional notice and comment, as well as notice to surrounding landowners. C. The action to require site plan review is not a land use decision or a final decision for appeal. COMMENT: The amended language in subsection A.5 (underlined) is prompted by the changes proposed above that require site plan review procedures to be used to evaluate riparian corridor mitigation plans (see, Section B.2 just above). Additional language, however, has been added to cover other specialized mitigation plans, such as erosion and storm drainage plans and wildfire safety plans. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 33

37 ARTICLE 91 - STANDARDS FOR DEVELOPMENT OF MINERAL AND AGGREGATE OPERATIONS PURPOSE The purpose of this Article is to provide clear and objective development standards and review procedures for approval and operation of mineral and aggregate mining and processing sites located in any zone where these uses are authorized. The procedures, standards and other requirements identified in this Article apply to both mineral and aggregate sites unless specifically noted otherwise REVIEW PROCEDURES A. All applications for the mining or processing of mineral and/or aggregate resources in zones other than the Mineral and Aggregate Resource Zone (MARZ) and the Aggregate Resource Zone (AR) shall be processed as Conditional Use Permits (Article 45), with a Site Plan Review (Article 42), and shall utilize Quasi-judicial Review Procedures as set forth in Review Procedures (Article 22). B. Mining or processing of aggregate resources in zones other than the MARZ (Article 66.1) which have been lawfully permitted by Josephine County and DOGAMI, but which have been inactive (see definition of inactive) for up to twelve years, may restart operation without issuance of a new conditional use permit, subject to the following: 1. Demonstration the owner or operator was issued and continuously renewed a DOGAMI surface mining permit for the mine area during the entire period of inactivity; or, 2. Demonstration the owner or operator has received and maintained a DOGAMI exemption from surface mining regulation during the period of inactivity; and, 3. The owner must apply for site plan review pursuant to Article , and a development permit must be issued authorizing the proposed mining. C. Mining or processing of aggregate resources in zones other than the MARZ and the Aggregate Resource zone which have been inactive for twelve years or more must be authorized by a new conditional use permit (Article 45), subject to site plan review procedures (Article ), before restarting operation. Mining may also be authorized by amending the zoning for the site to the MARZ, subject to the requirements of Article D. New mineral and aggregate batching or blending into asphalt cement shall not be permitted in Exclusive Farm Use Zones when the batching or blending site is within 2 miles of a planted vineyard. A planted vineyard is one or more vineyards totaling 40 acres or more that are planted as of the date the application for batching or blending is filed. Operations for batching or blending which are approved on or before October 3, 1989, including subsequent renewals, are exempt from this subsection. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 34

38 COMMENT: No substantive changes are being made to Section SPECIAL PROPERTY DEVELOPMENT STANDARDS FOR AGGREGATE OPERATIONS Subject to the qualifications listed in this Section, the following standards shall be the minimum standards for the mining and processing of mineral and/or aggregate resources in all zones that permit these uses. Mining or processing authorized as a conditional use or by site plan review may impose additional and/or more stringent standards in order to achieve compliance with applicable criteria. Operations authorized pursuant to the MARZ shall include standards for operation with the zone. The standards for operation contained in this Article may be added to, modified or deleted by the implementation of the requirements contained in OAR or by an approved impact area agreement (IAA) adopted as part of the zoning decision (see, Section , Placing Land Within the Mineral and Aggregate Resource Zone). In all cases, applicable standards of operation must be clear and objective. The minimum standards for operation are: A. A development permit shall be obtained before any mining and/or processing of mineral or aggregate resources. The applicant shall also obtain all other permits required by this code and other licensing or permitting entities having jurisdiction over the operation. The continuance of additional permits and approvals in good standing shall be a condition for the continuance of the county's development permit. The performance of the standards required by this Article shall also be necessary for the issuance and continuance of the development permit. B. The access or service road(s) to and from the extraction site to a public road shall meet the following standards: 1. The applicable standards from Oregon Administrative Rules Chapter 340, Division 35, for vehicular noise control for a distance of 500 feet in all directions from any public road or conflicting use located along the access road. 2. The most current air quality standards from Oregon Administrative Rules Chapter 340, Divisions 20, 21, and 28, for ambient air quality for a distance 500 feet in all directions from any public road or conflicting use located along the access road if the mining traffic is the primary cause of the road dust. Where more than one mining operation uses the same road, all operators shall be proportionately responsible for the cost and management of dust abatement measures based on vehicle trips per day. COMMENT: Subsection C in the existing version of Article has been deleted. It reads: C. Conflicts due to noise, dust or other discharges with regard to existing and approved uses which are sensitive to such discharges shall be minimized to ensure conformance to the applicable local, state, or federal standards. Continued next page... PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 35

39 Technically, this is not a clear and objective standard, in that it requires minimization of impacts; and, anyway, minimization is a concept that must be first addressed in deciding whether to allow mining at all. Section provides the minimum standards of operation that apply after mining is allowed. In any event, subsections G, H and I below address noise, erosion and dust standards, thereby adequately covering the subject. The following subsections have been renumbered accordingly. There are no other notable changes to the following list of standards. C. The extraction area shall be substantially screened from the view of existing conflicting uses, subject to the following specifications: 1. Mining and processing equipment, whether in use or in storage, shall be screened. Stockpiles of aggregate do not need to be screened and may be used for screening. 2. Screening may consist of natural vegetation and landscape features, or may be supplied by planting vegetation or placement of berms, fences or other similar development features. If vegetation is used as screening it shall be maintained alive. 3. Earthen berms shall be stabilized with ground cover. 4. Visual screening may not be required if the topography, growing conditions or other circumstances at the site make it impractical or otherwise unnecessary to shield the site from the view of conflicting uses. D. On-site parking shall be provided for all employees, customers and official visitors. E. A safety fence must be constructed to protect the extraction site from vehicular or pedestrian intrusion whenever the site is within 200 feet from a public road or an off-site residence, or where the quarry is developed with hazardous vertical cuts. The safety fence may consist of orange vinyl fence material commonly used at construction sites. F. All mining and processing of mineral and/or aggregate resources shall meet and maintain the permit requirements of the Oregon Departments of Geology and Mineral Industries (DOGAMI), Division of State Lands (DSL), and Environmental Quality (DEQ). G. All mining and processing of mineral and/or aggregate resources shall comply with OAR noise emission standards. Compliance for the purpose of issuing a development permit can be demonstrated by a report from an acoustical engineer attesting that the circumstances of the site and/or proposed mitigation will bring the site into compliance. H. All mining and processing of mineral and/or aggregate resource sites shall meet the erosion control and site drainage standards contained in Article 83 (Erosion Control & Storm Drain Facilities ) of this code, as well as any permit requirements imposed by DOGAMI, DSL, DEQ, or any other state or federal regulation. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 36

40 I. The discharge of contaminants and dust caused from the mining and processing of mineral and/or aggregate resources shall comply with applicable DEQ ambient air quality and emission standards. The operator shall cease all mining and processing operation within one hour of the malfunction of any air pollution control equipment, and shall not resume operation until the malfunction has been corrected in compliance with applicable DEQ rules and standards. J. Excavation and stockpiling shall be set back from property lines so that the lack of lateral support and the angle of repose of the geologic deposit will not undermine or intrude onto adjoining lands. An additional setback may be required to allow the placement and maintenance of fencing. K. Mining and processing of mineral and/or aggregate resources shall be set back from the top of the bank of any stream in compliance with Article (B) (Special Setback Requirements). Existing native vegetation shall be maintained in the setback area. L. Mining and processing of mineral and/or aggregate resources within Flood Hazard Areas, as defined in Section (Terms Defined), shall comply with the standards contained in Article 69.1 (Flood Hazard Overlay) of this code. M. The hours of operation for the mining and processing of mineral and/or aggregate resources shall be 8 am and 6 pm for conditional uses, and 7 am to 9 pm for MARZ. The days of operation shall be Monday through Saturday, excluding the following holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. Maintenance of equipment may take place at any time. 1. If the mine owner or operator so requests, the Planning Director shall authorize exceptions to the above operating hours and days for asphalt or concrete batch plants, subject to the following limitations: a. The additional hours must be a requirement of a state, local, or federal government contract; and b. Not more than three exceptions may be granted in a calendar year; and c. The total duration of exceptions may not exceed 90 days in a calendar year. 2. The Planning Director may authorize additional or different operating hours and time periods for asphalt or concrete batch plants than those specified above. Authorization must use quasi-judicial land use decision procedures specified in Article 22 (Permit Review Procedures), to include neighborhood notice and the right to appeal the decision for a de novo hearing. N. The hours for blasting at the extraction site shall be limited to 10 am to 3 pm for operations authorized as conditional uses, and 7 am to 6 pm for operations authorized within the MARZ. The permitted days shall be Monday through Friday, excluding the PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 37

41 holidays listed in subsection M above. The mine operator shall provide advanced notification of all blasting subject to the following requirements: 1. The notification shall be given in writing to all property owners and/or occupants residing within the impact area (or 1500' if an impact area has not been established) at least 48 hours prior to blasting. The notice shall be delivered to a mail receptacle or to the residence or structure. The operator shall maintain a journal showing when and how notice was accomplished. 2. If blasting occurs on a predictable schedule, the operator may provide written monthly notice of the schedule delivered at least 48 hours before the first scheduled blast. The delivery and record keeping requirements specified in subsection 1 above shall also apply. 3. The notice shall specify the day or days and hour or hours of blasting. O. Water used in the mining or processing of mineral and/or aggregate resources shall be appropriated from a source authorized by permit from the Oregon Department of Water Resources. With the exception of onsite process water released to onsite settling ponds turbid water shall not be released into lakes, ponds or watercourses. P. Failure to perform or continue to perform any of the standards required by this Section shall render the development permit void and subject to any and all enforcement procedures contained in this code or as authorized by any other law, rule or civil authority SITE RECLAMATION No mining operation authorized pursuant to this Article shall commence without the operator furnishing to the Planning Director a copy of a DOGAMI operating permit and approved reclamation plan, or a certificate of exemption, issued pursuant to the requirements of ORS through (Reclamation of Mining Lands) and implementing administrative rules. The county shall defer to DOGAMI regarding all aspects of the reclamation plan and its administration. Reclaimed land uses for the site must be authorized by post-mining zoning NOTICE In addition to the notification requirements contained in Chapters 2, 3 and 4 of this code, all mining and processing applications that impact one or more acknowledged significant riparian corridors shall require written notice to DOGAMI, DSL, DEQ, and ODFW at least 30 days prior to final approval or the first public hearing, whichever comes first. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 38

42 Amend Article 69.2 (Deer Overlay) by deleting the all of the existing language and replacing it with new language, as follows: ARTICLE DEER OVERLAY PURPOSE The purpose of this overlay is to restrict development so that critical deer winter range habitat is protected DENSITY REQUIREMENTS In areas identified as critical deer winter range habitat, findings must be made that a residence will not cause the density of dwellings within winter range to exceed 32 homes per 2 square miles. The calculation will include the area outside impacted lands below 2500 feet elevation PROPERTY DEVELOPMENT STANDARDS The property development standards in the underlying zone shall apply to all development in this overlay. The standards contained in this Article shall be in addition to the standards of the underlying zone PURPOSE The purpose of the Deer Overlay is to protect lands designated as critical deer winter range habitat from residential encroachment. During winter months deer living on high elevation ranges move to sensitive habitat areas below 2500' for cover, water and forage. It has been determined that the capacity of these lower ranges to support adequate levels of wintering deer decreases significantly when the density of residential dwellings exceeds one dwelling per 40 acres of winter range. The objective of the Deer Overlay is to identify lands located below 2500' that are not impacted by existing residential or other development. Areas of critical deer winter range shall be rendered into a digitized data set that can be maintained and displayed using a geographic information system. The areas thus identified and displayed shall be subject to the density limitations specified in Section and the map amendment criteria contained in Section DENSITY LIMITATIONS In areas mapped as critical deer winter range, approvals for new dwellings shall include findings that show the proposed dwelling or dwellings will not cause the density of dwellings to exceed 32 dwellings per 2 square miles. The dwelling count shall not include dwellings that are located above 2500' elevation or in areas designated as impacted. The density calculation shall be achieved using one of the following methods: A. Fixed Study Area Test. A circle having an area of 2 square miles shall be reasonably centered on the subject property. Existing authorized dwellings located on deer winter range lands within the circle shall be counted. The number of counted dwellings, in addition to the proposed dwelling or dwellings, shall not exceed a density of 1 dwelling per 40 acres when considering the amount of deer winter range land only. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 39

43 B. Expanded Study Area Test. A circle of any diameter shall be reasonably centered on the subject property until the circle encompasses 2 square miles of deer winter range lands. Existing authorized dwellings located on deer winter range lands within the circle shall be counted. The number of counted dwellings, to include the proposed dwelling or dwellings, shall not exceed AMENDING THE DEER WINTER RANGE MAP A. The Deer Winter Range Map may be amended as it applies to specific lots or parcels when the application demonstrates the land is not critical black-tailed deer winter range habitat because: 1. The land has not been used as winter habitat by significant black-tailed deer populations; and 2. The land does not exhibit favorable black-tailed deer winter habitat characteristics, such as wedge leafed ceanothus, available overstory and water; or 3. Even though the land exhibits favorable winter habitat described in (b) above, the land is isolated from migratory black-tailed deer herds due to legal and permanent development on the land and/or on surrounding lands (that is, impacted by development); and 4. All of the foregoing circumstances are addressed by credible scientific and technical data, reports or other evidence from an expert in the field of big game habitat and management principles that demonstrates the land does not provide critical deer winter range habitat based upon consideration of factors (a), (b) and (c) as set forth above. C. Josephine County shall consult with local officials from the Oregon Department of Fish and Wildlife regarding all proposals to amend the Deer Winter Range Map. The county shall provide local officials with a copy of all scientific and technical data, reports and other evidence specified in subsection 2(d) above. The department may submit its own scientific and technical data, reports and other evidence and may object. The county must consider this evidence and information in taking action on the map amendment application. COMMENT: The purpose of this overlay is to restrict development so that critical deer winter range habitat is protected. This basic regulation has been administered by the county since its plan was first acknowledged in An important objective of these amendments is to give a clearer statement of the reasoning and mechanics behind the county s Deer Overlay. No other place in the code or comprehensive plan presently does this (see page 12 where concurrent amendments to the county goal 7 will contain a similar explanation). Another objective is to clarify the method for calculating the 40 acre dwelling density limit in critical wintering areas (that is, 32 dwellings per 2 square miles of area). To this end, PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 40

44 Article has been carefully revised with the help of officials at the Oregon Department of Fish and Wildlife. The Article now provides two options for calculating density limits. In order to understand how these options function, one must first realize that areas of critical deer habitat are highly irregular. This is because habitat areas are defined on one side by the 2500' contour line and on the other by the collective property lines for impacted properties. Both of these features move about so the area between them has irregular dimensions. The first option, the fixed study test, is the easiest to calculate because the area for counting is fixed, but it is not necessarily accurate. This is because the actual area of habitat within the circle cannot possibly be more than 2 square miles, since the circle itself is no more than 2 square miles but it could be less if habitat areas do not fill the whole circle. In this case, if there are less than 1 dwelling per 40 acres of habitat area, the density requirement is met, even though there really isn t a full 2 square miles of habitat within the circle. The second option kicks in when the fixed test fails the density limit, in which case the applicant is allowed to expand the circle until it actually encompasses 2 full square miles of habitat area. Depending on the number of dwellings this change picks up, the request may meet the density limit even though it failed under the fixed study area test. The expanded study area test is a much more difficult calculation to make because it requires the irregular deer habitat area to be precisely computed by expanding the circle until 2 square miles is picked up. This test will probably be used only when the first test fails. The last section, , dealing with development standards, has been deleted completely because it is not needed. Nothing within Article 69.2 indicates application of the Deer Overlay might exempt properties from other unrelated development standards. The individual zones specifically list the applicable development standards that must be considered. In its place, a new section implements the criteria for amending the Deer Winter Range Map (see, comment to proposed amendments to Goal 7, Policy 6(B), set out earlier in this report at page 13). Amend Section (Non-Resource Land Criteria) by deleting the language in subsection E and replacing it with the following new language: NON-RESOURCE LAND CRITERIA. Authorized lots or parcels (but not portions thereof) which have been zoned Woodlot Resource or Farm Resource may be designated as non-resource when the application demonstrates compliance with the following criteria and rules: E. If the proposed plan designation is Rural Residential, the lot or parcel must be shown to be entirely outside of the critical habitat area (i.e., above 2500' or designated as impacted) on the official 1985 Deer Winter Range map, as adopted or amended If the land is designated as critical deer winter range habitat on the official 1985 Deer Winter Range map, as adopted or amended, then the land shall continue to be subject to the density restriction required by Article 69.2 (Deer Overlay) even though the new underlying zone may permit a higher density. PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 41

45 COMMENT: The deer winter range density restrictions apply because properties are below 2500' in elevation, exhibit deer winter range characteristics, and have not been impacted by development. The application of Article 69.2 does not depend on any particular kind of zoning. Rather, it depends on whether the county s official Deer Winter Range Map designates the property as critical habitat. As it is, the map protects lands as critical habitat in many zones besides farm and forest. Critical deer winter range habitat exists in the Rural Residential zones (1,961 acres), Limited Development (24 acres), Serpentine (62,147 acres), Tourist Commercial (35), and Rural Industrial (312 acres). It is therefore not critical for land to remain in a farm or forest zone in order to protect deer winter range, as long as the map and density restrictions continue to apply under the new designation. There are no provisions within statewide Goals 3 and 4, or their implementing OARs, that require land to be contained within farm or forest zones because they are critical deer habitat. As long as the requirements of the Deer Winter Range Overlay apply, the aim of protecting deer habitat as a natural resource under Goal 5 is accomplished regardless of zoning. Along this line, it is helpful to note that many Goal 5 resources occur in places that are not protected by statewide Goals 3 and 4. Aggregate sites, riparian corridors and fish habitats occur in non-resource zones. Bird s choose nesting sites based on instinct and not zoning. Wetlands, groundwater resources, and historical and archaeological sites are all Goal 5 natural or cultural resources that can be found in any zone. This is the basic reason why the protection of deer winter range habitat is accomplished via overlay procedures. Overlays are designed to apply across zones based upon some shared geographic characteristic that requires consistent regulation even though the covered lands may be used in entirely different ways. A prime and obvious example of this planning feature is the flood hazard overlay, which is driven by the risk of flooding without regard to zoning. This why former DLCD employee and land use author, Mitch Rohse, in his handbook, Land Use Planning In Oregon, states that Overlay Zones are often called combining zones. (Oregon State University Press, 1987, at p. 162). PERIODIC REVIEW TASKS #1 & #2 OCTOBER 2005 DRAFT PAGE 42

46 Josephine County, Oregon Board of Commissioners: Jim Brock, Harold L. Haugen, Jim Riddle PLANNING OFFICE Michael Snider, Director 510 NW 4th Street / Grants Pass, OR (541) / FAX (541) planning@co.josephine.or.us January 15, 2004 Rob Hallyburton Community Services Manager Dept. of Land Conservation & Development 635 Capitol Street NE, Suite 150 Salem OR Dear Rob, Re: Periodic Review Task 1 Remand (Order #001592) I received and read your letter of December 31, 2003, regarding the Department s remand of the county s periodic review task dealing with aggregate and riparian updates. Since then we have talked on the telephone, at which time I asked for verbal clarification regarding points in your letter. From your letter and our conversation, I understand: 1. Ordinance , dealing with aggregate, is acknowledged, except for the provision requiring an impact area agreement between the operator and nearby owners, which conflicts with application requirements in the Oregon Administrative Rule dealing with aggregate resources. 2. In order for the impact area agreement provision to be acknowledged, it must either be supported by a regional problem solving agreement or the ordinance must be amended to delete it; one of these options must be submitted to the Department by December 31, The county must adopt plan and ordinance provisions protecting riparian corridors consistent with the Division 23, Goal 5 rule, with or without a collaborative problem solving agreement by December 31, Please let me know if any of these thoughts need correction or if there is some other remand requirement I may have missed. Rob, I appreciate your courtesy in allowing my input on the remand order before it was finalized. Sincerely yours, Michael Snider Planning Director Ext 5424 cc: Jim Riddle John Renz APPENDIX 1 L OFFICE HOURS 8-12 & 1-3 (Mon & Fri) 8-12 (Tue, Wed & Thur) 7 Josephine County is an Affirmative Action/Equal Opportunity Employer and complies with Section 504 of the Rehabilitation Act of 1973"