Findings Of Fact - Exhibit A
MORATORIUM ON LAND DEVELOPMENT
ORDINANCE NO. 181
BACKGROUND
Municipal Government
1. Dunes City is a small lake-dependent coastal community of approximately 1300 residents adjacent to Siltcoos, Woahink, and Little Woahink Lakes, south of Florence. Dunes City lacks a long–term source water protection strategy or a comprehensive system of ordinances that mitigate the impacts of erosion, sediment, surface water, septic effluent and storm runoff, and contamination of ground water from construction or post-construction development. A significant part of Dunes City ordinances were drafted in the late 1970's.
Dunes City lacks a tax base and does not have professional staff with the necessary skills or experience to monitor water quality concerns. Instead, the city relies upon a core group of dedicated volunteers. Recent development pressures, unprecedented in the City’s history, now have the potential to significantly impact local water quality. As a result Dunes City is proposing a limited moratorium on development. During the ensuing 120 days, Dunes City will design and implement measures to protect the quality of their lakes and groundwater. This will include federal and/or state funding to develop comprehensive water quality regulations and to implement objective development standards. Twenty–five percent of Dunes City’s registered voters have signed petitions favoring a limited moratorium.
Coastal Lakes
2.
Siltcoos
and Woahink Lakes are coastal lakes connected by Woahink Creek and located
in Oregon's Mid Coast Basin. They are reported in Lane County's Coastal
Water Supply Study as being important sources of water, including ground
water recharge, for the entire area south of the Siuslaw River.[1]
Oregon’s water-resource agencies
designated certain water-related "uses" within basins as
protected "beneficial uses." The Mid Coast basin designations
for protected beneficial uses include: public domestic water supply, anadromous
fish passage, salmonid fish rearing, salmonid fish spawning, resident
fish and aquatic life, fishing, boating, water contact
recreation, and aesthetic quality.
These dune lakes are thought to be unique in the northern hemisphere
because of their size, range, large number, great variety, and close
physical proximity.
Dunes City essentially encompasses lands bordering these lakes. Little Woahink Lake is a small lake that drains into the much larger Woahink Lake. Woahink Lake drains into the even larger Siltcoos Lake. To the west of both lakes are the Oregon Dunes National Recreation Area and Siuslaw National Forest. The majority of lands abutting Woahink Lake are within Dunes City. The portion outside the City limits abuts Honeyman State Park, one of the most important and visited state parks in Oregon. Part of Siltcoos Lake is adjacent to or within the Siuslaw National Forest and the Dunes National Recreation Area. Siltcoos Lake and Woahink Lakes have shoreline within or very near to county, state or federal parks or recreation areas of regional, national or international reputation.
3. These lakes are the primary sources of domestic water for a significant number of residents, their visitors and families, and other visitors to the area. Area groundwater is a similar primary source. Dunes City lacks a municipal water system or water treatment facilities. The people drinking from these combined sources number in the thousands.
4. The surface and groundwaters of Dunes City are entirely within a sensitive aquifer that is at risk for contamination as designated by Oregon Dept. of Environmental Quality. Various “source water assessment” studies have determined that a significant amount of Dunes City lands adjacent to Siltcoos and Woahink Lakes are or should be within “sensitive area” designations because of spill contamination, high soil erosion potentials, high runoff potentials, and high permeability soils. At least one such study has identified areas within a thousand feet of Woahink and Siltcoos Lakes as being in such a designation. In recognition of the value and unique characteristics of the lake, Woahink was identified by the U.S. Congress as a priority for action in the Estuaries and Clean Water Act of 2000, being one of only 19 lakes so recognized nationally.[2]
Development Pressures
5.
Dunes City has no wastewater treatment facilities. Housing and
commercial interests rely
on individual septic systems and the carrying capacity of the land to
protect the area's water supply. Current minimum lot size for partitions
and subdivisions is one acre. PUDs
allow for clustering of residences while retaining an overall density of
one residence per acre. Until
2005, there has never been a PUD application.
6. Over the past twenty years just two subdivisions were developed. The historical rate of new buildings in Dunes City has been approximately 10–11 lots a year. During 2005, development applications for partitions, planned unit developments (PUDs) and subdivisions, representing 98 new lots, were proposed in Dunes City. All of these developments proposed by these applications were in the Woahink drainage. Included was a PUD application that counted approximately 10 acres of the surface area of Little Woahink Lake as a “common area” resulting in an application that had 42 lots, averaging 0.6 acre of land area each, all served by subsurface disposal systems. This project fronted on Little Woahink Lake that drains directly into Woahink Lake through an important inventoried significant wetland. This development has resulted in excessive run off and siltation into this small water body that feeds Woahink Lake.[3]
Water Quality Concerns –Generally
7. Lake eutrophication is one of the most well–studied ecological phenomena. Excess input of nutrients, especially phosphorous, is almost always the cause of lake eutrophication. According to a recent book published under the Excellence in Ecology series: “Eutrophication is a syndrome caused by over-enrichment with phosphorus ...Excess inputs of phosphorus are the most common cause of lake eutrophication.” [4]
8.
The impacts of lake eutrophication are well known and cause
many forms of public harm. Lake eutrophication kills or injures
oxygen-dependent aquatic species, including fish, through severe, even
total, depletion of oxygen in the bottom layer (hypolimnion) of lakes.[5]
Lake eutrophication reduces aesthetic value by causing appearance changes,
including increased turbidity, discoloration, foaming, and odor and may
also causes chemical and microbial changes in water quality that
can impart to water an obnoxious and unpalatable taste. Odor profiles and
intensity commonly show a relationship to phosphorus.[6]
9. Input of excess nutrients is almost always associated with human activity. Nutrients are in Dunes City soils and are released or added through human activity, including soil disturbance associated with new developments. Nutrients enter surface waters and ground waters and ultimately flow to wetlands or lakes. They enter these critical areas either in solution in water or attached to sediments. Surges of surface water runoff in areas of development are associated with sediment surges. Sediments moving downward to wetlands or lakes can smother life-forms that beneficially uptake these nutrients and can transport the phosphorus directly into lake waters. Groundwater also transports phosphorus ultimately to wetlands and lakes. Phosphorus and other nutrients and contaminants ultimately deposit in lake or wetland sediment areas to the extent that they are not flushed from the system, or taken up by algae or other plants or life forms. An experienced member the Board of the Heceta Water District, who formerly worked for the Oregon Department of Environmental Quality, serving for a time with John R. Churchill, the federal EPA coordinator for the Section 208 Nonpoint Source Pollution program, states: “There is no doubt. The science is clear. The experience is clear. Homes inside the watershed of a lake means pollution of that lake. The level of development has a direct correlation to the level of pollution.”[7]
10.
The area’s sandy soils easily carry surface and ground
waters to the lake and wetlands. phosphorus
can bind and thus be retained and prevented from rapidly flowing through the groundwater into wetlands and
lakes. The “sandy soils” of the Dunes City area promote infiltration, drainage, and groundwater flows, and thus result in
relatively quick phosphorus and other contamination of surface and
groundwater flows into wetlands or lakes. Structures that retain surface
water runoff and promote biological or plant up-take of phosphorus
beneficially reduce nutrient loading in surface water or groundwater
flows.
The City’s Comprehensive Plan succinctly states the cause of rising
concern for the impacts of increasing numbers of septic systems within our
fragile watershed. “Carrying
capacity is the level of use that can be accommodated without irreversible
damage to or impairment of the natural resources or their quality. The
carrying capacity, therefore, will be based on the soil capacity.” [8]
Most of the systems currently being installed are substantially of the
same design as many of those installed 50 years ago, despite many recent
advances in subsurface waste water systems.
Rising nutrient levels in lake waters point towards the possibility
that carrying capacity is being exceeded.
The high permeability of sands and sandy aquifers in the Dunes City area permit rapid transfer from the ground water to the lake without the amelioration obtained by long transit times through distributed surface reactive clays necessary to obtain good water purification. Surface runoff gives essentially direct input to the lake.[9]
The rate of lake infilling is controlled by a variety of processes including the slope and the plant cover that can greatly decrease or impede the transport processes. Even on relatively gentle slopes, the rate and amount of infill into the lake is drastically affected by removal of ground cover and trees. An example of this is pertinent to the case of Woahink Lake which shows extremely turbid waters (almost chocolate colored) in the northern branches of Woahink Lake during the heavy rainy season that is the direct result of the property owner denuding land assigned to forests by the County without applying obvious well established preventive measures that are in general practice.
Denudation will certainly occur with any construction unless proper measures are strictly and regularly applied to prevent excessive run off. Excavation with the creation of high relief (steep slopes) is also a cause of greatly enhanced run off. This is often caused by road construction in areas of high relief and will cause incision in the ground by runoff drainage and then flow of debris into the lake.
The ground water contains
all the compounds and colloids produced or added to the upper soil layers.
These then filter downward through the vadose zone into the water table.
These chemical complexes include those naturally produced within the upper
soil layers and those added from fertilizer, septic tank drain fields,
septic tank leakage, animal
wastes, detergents and
pesticides that have not been decomposed by bacterial action in the
septic tank itself or which simply pass through the soil system. All of
these compounds that are not decomposed or transferred directly into the
lake by run off then pass into the ground water system and flow directly
into the lake in a rather short time. The effectiveness of so–called “sand
filters” depends critically on the amount of distributed clays
on/between the sand grains and the rate of water flow through the vadose
zone. This requires testing of both the soil-vadose zone flow rates and
sufficient spacing between septic tank systems and in the distance of
these systems from the lake with consideration of the flow rate by a
hydrological study at each site.[10]
11.
Water quality problems worsened by phosphorus loading are
accelerated where lake sediments are overlain by anoxic water. Studies in
lake chemistry clearly show that under very low or no-oxygen (anaerobic)
conditions, lake sediments release phosphorus, which under aerobic
conditions would otherwise be held in sediments. Such anaerobic release of
phosphorus can significantly add to phosphorus levels available in lake
waters for use by algae and other life forms. Decreased oxygen levels in
the hypolimnium (lower lake levels) cause lake sediments to release more
phosphorus. Under these conditions, the lake’s sediments act as a
reservoir of continued phosphorus input into the lake’s waters,
establishing a recycling dynamic that locks in worsening eutrophic
conditions.[11]
This process becomes a self-sustaining nutrient loop that does not need
additional phosphorus loading to worsen lake conditions.
Lakes metabolize through phases
where nutrients increase and water quality declines. Phosphorus is most significant nutrient. It acts as a fertilizer for life forms. For lakes located in U.S. EPA
Aggregate Ecoregion II, Western Forested Mountains, which includes lakes
in Dunes City, the U.S. EPA has recommended a nutrient water quality
criteria for total phosphorous of 8.75 ug/L and for chlorophyll a of 1.9
micrograms per liter.[12]
According to Woahink Lake volunteer water tester Mark Chandler, “As more
nutrients enter the water body more algal growth takes place; the algae
dies off, sinks to the bottom and decomposes.
This decomposition depletes the oxygen at the bottom, creating an
anoxic or low oxygen condition. That
triggers the release of nutrients from the sediment, which then further
stimulates algal growth. This
feedback cycle can cause an acceleration of lake water deterioration.”[13]
As this change progresses, it significantly undermines water
quality and directly impacts water-related values or interests. The ground
waters and surface waters
of the City are impacted by this nutrient process as are the
wetlands.
12. Noted limnologist Dr. Steve Carpenter states that a sigmoid dependence on phosphorus levels mean that as a lake becomes more eutrophied, relatively small additional inputs of phosphorus can cause a very large shift in the lake’s trophic state.[14] Thus, when a lake is in a mesotrophic phase an increase in recycling levels of phosphorus can shift its state to eutrophic.
The following
graph, containing arbitrary units, depicts the typical shape of a sigmoid
function:
13.
Nutrient impacts on down-stream wetlands and lake water are
cumulative and a successful recovery path is frequently without guarantee.[15]
Numerous case studies show that lake eutrophication is often irreversible
and the works of limnologist Dr. S. Carpenter summarizing these case
studies are persuasive: “We now have decades of experience with managing
eutrophication in hundreds of lakes around the world …. In many cases,
however, the degree of eutrophication has not responded to reductions of
phosphorus...” [16]
14.
Lake eutrophication causes deterioration of drinking water by
increasing the numbers of pathogenic microbes that can cause human death
and illness through exposure. This
can include colonies of blue-green algae species forms of Microcystis or
Anabaena, that form floating masses on the water called "algal blooms.”
Microcystis organisms may produce a potent liver toxin, and Anabaena
species frequently produce a neurotoxin, both of which can be harmful to
humans and animals. Ingestion and even contact with such waters is not
recommended.[17]
Oregon Department of Human Services information states “If toxic
algae is swallowed it can cause diarrhea, nausea, cramps, fainting,
numbness, dizziness, tingling, and paralysis. Skin contact can cause
rashes or irritation. Children and pets are at greatest risk.” [18]
15.
Cryptosporidium and Plesiomonas shigelloides are other additional
pathogens that proliferate in lakes experiencing eutrophication.
As stated by U.S. EPA: "Cryptosporidium
has caused several large waterborne disease outbreaks of gastrointestinal
illness, with symptoms that include diarrhea, nausea, and/or stomach
cramps. People with severely weakened immune systems (that is, severely
immuno–compromised) are likely to have more severe and more persistent
symptoms than healthy individuals. Moreover, Cryptosporidium has been a
contributing cause of death in some immuno–compromised people.”[19]
Cryptosporidium is associated with sewage or septic loading. As the US
Food and Drug Administration states: “Most human P. shigelloides
infections are suspected to be waterborne....Gastroenteritis is the
disease with which P. shigelloides has been implicated. P. shigelloides
gastroenteritis is usually a mild self-limiting disease with fever,
chills, abdominal pain, nausea, diarrhea, or vomiting.”
[20]
Recently, a documented case of Cryptosporidium was reported along Woahink
Lake.[21]
Dunes City has found that
the above–described conditions have occurred at Woahink Lake and
Siltcoos Lake and has initiated a volunteer water monitoring program
utilizing residents to monitor protocols for various nutrients or other
parameter. The volunteers have been trained by the Volunteer Monitoring
Specialist, Water Quality Section, Oregon Dept. of Environmental Quality,
and by monitoring specialists with the Siuslaw Watershed Council and the
Ten Mile Lakes Basin Partnership. The design, protocols, and
implementation of City monitoring program are detailed in the “Draft
Dunes City Water Monitoring Project, Quality Assurance Project Plan.”
Water Quality Concerns –Woahink Lake
16. Woahink was once classified as Oligatrophic, or nutrient poor, but has undergone significant change relative to its presettlement condition and exhibits significant tropic changes. It now can be considered Mesotrophic with higher nutrient levels, trending toward Eutrophic. This eutrophication brings on greater low oxygen conditions, which trigger further releases of phosphorus from bottom sediments; this feedback loop accelerates degradation of water quality.
17. Changes to Siltcoos and Woahink Lakes have been noted in various studies, including a 1999 study by the U.S. Forest Service, Siuslaw National Forest states: “If nutrient levels continue to increase relatively unchecked by State or County officials, problems such as those in Tenmile Lake south of this watershed will begin to take place. In Tenmile Lake, toxic algal blooms (Microcystis) have made water unsafe for drinking or recreation during certain times of year with uncertainty of its long-term effects on public safety and the viability of local tourism.”[22]
18.
A 2001 Portland State University Study notes: “Erosion in the watershed
contributes sediment to the arms of the lakes. Continued high sediment
loading to Woahink Lake will eventually lead to changes in the lake
trophic state and degradation of water quality.”[23]
That the study further notes there are “Critical Problems to
Address" and that in Woahink Lake, this includes “nutrient loading
to the lake to prevent further increase in productivity and the potential
for hypolimnetic dissolved oxygen depletion that could lead to
irreversible degradation of the lake.”[24]
19.
The City has found many indicators, including increases in
phytoplankton and macrophytes, which demonstrate that nutrient levels have
gone up in Woahink Lake. An experienced limnologist, and other residents,
have noted a clear and "extensive development of submersed aquatic
vegetation in the shallower areas."[25]
Macrophyte or aquatic weed development is recognized as an indicator of
decreasing water quality by consensus among water-related agencies.
20.
Woahink Lake experienced a well–documented algal bloom during the
summer of 2005, which
resulted very serious impacts to the water supply.[26]
During this time, the monitoring volunteers recorded the lowest secchi
disc reading, measuring water clarity, ever seen at the central Atlas
monitoring site and this was the lowest level ever recorded there since
regular monitoring began in 1989.[27]
In describing what they saw, the testers noted that the "water was
very green with algae". Similar blooms in other lakes (e.g. Ten Mile
and Mercer Lakes) have been found to be associated with the introduction
of sediment or nutrients into the waters.
21.
Water quality monitoring of Lake Woahink through December of 2005
continue to show elevated levels of phosphorus in the range of 10.5 to
12.4 ug/L, well exceeding the U.S. EPA recommended criteria of 8.75.
On June1, 2005, chlorophyll a levels in the lake were 7.6 ug/L, over four times the U.S. EPA recommended criteria of 1.9
ug/L.[28]
Problems continue to plague users
of Woahink water with over a dozen complaints about obnoxious smell and
taste in April 2006. A sample
taken on April 5, 2006 also
exceeded the chlorophyll-a
criteria recommended by EPA for lakes and ambient
water quality criteria recommendations, U.S. E.P.A., Dec. 2000)
22.
Little Woahink Lake drains through an important inventoried
significant wetland directly into Woahink Lake. It has been documented
that the construction of a road located adjacent to Little Woahink Lake in
the fall of 2005 and early 2006 produced pronounced erosion, pools of
muddy water at culvert locations, and sedimentation flows down the
roadside, into the lake and adjoining wetland. The sedimentation from this
construction, which was associated with a proposed PUD, was so severe that
residents downstream in Woahink Lake had water filters literally clogged
with sediment as a result. Any worsening of Woahink Lake waters will
impact Siltcoos Lake waters since Siltcoos receives all the flows from
Woahink Lake.
23.
The Woahink
Water Quality Concerns –Siltcoos Lake
24. Even before consideration of new Dunes City development impacts, the waters of Siltcoos Lake are already impaired and at risk. Siltcoos fails certain water quality standards and has been listed as an impaired water body under Section 303(d) of the Clean Water Act. It is listed under Record ID 2773 in DEQ's Water Quality Limited Database and DEQ's TMDL Documents for "aquatic weeds or algae."[30]
The 303(d) listing of Siltcoos Lake will involve various state agencies and other jurisdictions establishing a water-quality implementation plan to reduce nonpoint nutrient pollution. These plans will consider the cumulative impact from all nutrient sources including groundwater and point and nonpoint pollution sources from the City.[31] Limits on point and nonpoint sources will be controlled through various water quality implementation plans. Land developments that involve more than one acre of disturbed soil will be required to obtain TMDL process permits.[32]
25 The DEQ TMDL process in the Mid Coast Basin has been the subject of a Consent Order resulting from delay in initiating TMDL planning for 303(d) impaired waters. Because of that consent order, DEQ has committed to initiate TMDL processes on all Mid Coast water bodies listed on the 1998 303(d) list within 10 years. (See DEQ Fact sheet Oct. 2001)
Mandatory DEQ–TMDL planning for
26. Development in Dunes City that occurs before implementation of the Siltcoos TMDL process would, via the process of cumulative loading, create a strong likelihood that later TMDL planning efforts would be impacted. To the extent Siltcoos Lake drainage development goes forward before TMDL planning and adds pollutant loading to Siltcoos Lake, later development projects within Dunes City subject to prospective TMDL review must accept reduced loading in order to meet TMDL limits. In the case of Tenmile Lake, TMDL implementation, experience shows that little or no residual loading was left to allocate to later uses that discharge phosphorus. In short, when limits of loading are reached, the TMDL process enforces those limits.
Residential development in Dunes City that is permitted to proceed under existing regulations and absent comprehensive water-quality-protection BMPs and rules may thus harm, impair or impact future residential development subject to TMDL implementation permit. Such pre-TMDL development may also become the subject of TMDL implementation planning and have to further reduce their nutrient loadings. Such impacts would cause substantial harm to Dunes City and represent a great risk of uncertainty to property owners in the future.
27. In the Source Water Assessment for Dunes City, Siltcoos Lake is listed at high risk for turbidity because of “siltation and algae blooms that are both currently causing problems with water filtration.”[34] Further, Siltcoos Lake was found to have the highest concentrations of chlorophyll-a, total nitrogen, total phosphorus, and the lowest clarity among the 5 coastal lakes studied in 1996 by Dr. Richard Petersen, Portland State University.[35]
28. Tenmile Lake, a similar Coastal lake south of Siltcoos Lake, is 303(d) listed for the same reasons as Siltcoos Lake. It has experienced toxic algal blooms and was the subject of Oregon Health Division health hazard advisories.[36] The Tenmile TMDL development and implementation process has resulted in expenditures in excess of $ 750,000.
---------------------
ORS 197.520(3)(a) – EXISTING DEVELOPMENT ORDINANCES AND
REGULATIONS ARE INADEQUATE TO PREVENT IRRREVOCABLE HARM.
Irrevocable Harm
29. A significant portion of Dunes City residents and thousands of visitors get their water from either Siltcoos or Woahink Lake, or local ground waters, and many individuals use these waters for water-contact recreational purposes and have a justifiable need to know that these waters are safe from serious disease and bacterial infection. Residents require assurance that clean safe potable water will be available in the future, and that the Council will, to the limits of its powers, seek preservation of Siltcoos and Woahink Lake as safe viable water bodies. Public safety and health issues are of paramount concern and repeated reported incidents of water-related illness or disease should not be a prerequisite to implementing a Limited Moratorium seeking improvements to city water-quality related ordinances.
30. New residential growth inevitably entails the addition of common residential chemicals and fertilizers to nutrient and contaminant loading. The Oregon State Legislature has pre-empted local governments from enacting ordinances controlling the use of many such chemicals, limiting community options to protect their waters and wetlands.
31.
During the summer of 2005, an algal bloom on Woahink Lake lasted
for more than 2 months resulting in "wide-spread" impacts to
lake water users with the lake water having a foul "nauseating"
smell and taste causing residents to fear failing water systems, to obtain
new water filtration and treatment equipment, to obtain and carry bottled
water for cooking and drinking, and make numerous calls seeking water
system repair persons.[37]
Algal growth inside water systems and house system components like
sinks and toilets caused lengthy problems. A survey conducted by the
Woahink Lake Association, a voluntary association of some lake residents,
documented that 25% of the membership experienced problems with their
water that were associated with this algal bloom.[38]
Some residents literally thought dead fish were caught in their filter
screens. State-of-the-art water filtration systems had no ability to alter
the taste or "nauseating" odor when waters were used for
washing, bathing, toilets or any other purpose. Hair and skin were left
with odors after washing. Bottled drinking water did not solve the other
customary water needs of households.
32. Tenmile Lakes, south of Dunes City, experienced toxic algal blooms resulting in Oregon Health Division Health Hazard Advisories recommending no contact with the waters and no use of the waters for drinking.[40] Such an advisory would severely impact the Dunes City area, parks, visitors and residents.
33. Since 2004, there has been a reported case of Plesiomonas Shigelloides and a case of Chrytosporidum associated with Woahink Lake. The symptoms from these cases were sufficient to merit medical intervention and a culturing to identify the organism. These diseases are reportable to the Center for Disease Control and can be associated with drinking water or water-related exposure. The cultured case of Plesiomonas Shigelloides concerned a one-year-old infant whose grandmother experienced similar symptoms. They both resided in Dunes City and their domestic water came from Woahink Lake. An Oregon Clinic, Gastroenterology Division representative, relaying test results to the Cryptosporidium patient, confirmed that the Cryptosporidium infection came from drinking water out of Woahink Lake.[41]
34.
Based upon evidence of algal blooms, some water-related illness or
diseases, in Woahink lake, and the 303(d) impaired listing of Siltcoos
Lake, and other evidence, the City has ample and responsible reasons to
consider prompt and direct action to reduce nutrient loading and other
contamination into the lakes to avoid further exacerbating threats to the
City's drinking water supplies from the lakes and groundwater and the
health and vitality of our small community.
35.
The
analysis of Dr. Mark Chernaik shows, conservatively, that
36.
Approval
of pending applications for development in Dunes City in 2005 and
2006 would exceed this additional phosphorus loading that Lake
Woahink can tolerate if such development proceeds without regard to best
management practices (BMPs).[43]
37. The Oregon Department of Environmental Quality assumes that each conventional septic tank system built in sandy, coastal soils will discharge 0.80 kg/yr to nearby lakes. Application of BMPs can reduce this phosphorous loading by at least 80%. Thus, conventional septic tank systems built without regard to BMPs would discharge an additional 0.64 kg/year per unit (0.80 kg/yr x 80%) compared to septic tank systems that adhere to BMPs.[44]
38. A recent study of the U.S. Geological Survey shows that conventional lawn and yard maintenance activities on lakeshore property discharges an additional 0.435 kg/acre/year of phosphorous to nearby lakes compared to lawn and yard maintenance activities from lakeshore property that adhere to BMPs.[45]
39.
In
2005, Dunes City received applications for the development of
approximately 98 lots in the natural drainage area
of
Woahink Lake.[46]
If these lots were developed at a density of 1.4 acres per unit, then such
development would add an additional 122 kg/year of phosphorous ([98 units
x 0.64 kg/year per unit] + [98 units x 1.4 acres/unit x 0.435
kg/acre/year]). This exceeds
the additional phosphorus loading that Lake Woahink can tolerate. If
these lots were to be developed at a density of 1.0 acres per unit, then
such development would add an additional 102 kg/year of phosphorous ([98
units x 0.64 kg/year per unit] + [98 units x 1.0 acres/unit x 0.435
kg/acre/year]), leaving virtually no margin (only 10 kg/year of
phosphorous) for future development.
40. As of March 2006, partition applications covering 25 acres and comprising 8 lots have been submitted.[47] Development of these lots (even at this low density) would add an additional 16 kg/year of phosphorous ([8 units x 0.64 kg/year per unit] + [25 acres x 0.435 kg/acre/year]). Therefore, development of applications submitted in 2005 and so far in 2006 would discharge and additional 118-138 kg/year (102-122 + 16 kg/year) of phosphorous. This exceeds, by a considerable extent, the additional phosphorus loading that Lake Woahink can tolerate.
41. It is clear that development of less than one-quarter of the inventoried buildable lands in Dunes City (428 lots)[48] cannot proceed without jeopardizing the natural resources of Dunes City. Phosphorus discharges from development already subject to pending applications exceed the additional phosphorus loading that Lake Woahink can tolerate, leaving no margin for future development.
42. In can be further concluded that there is a high degree of probability that Woahink Lake is on the verge of irrevocable harm when considering the evidence of septic systems failures such as the City Hall, the wide-spread algal bloom of 2005, sedimentation and direct water impacts from documented examples of poor development planning, and lake chemistry associated with phosphorus recycling. Additionally, there is a high degree of probability that Woahink Lake will shift to an irreversible eutrophic condition if new development and occupation were to occur in Dunes City without regard to reducing loading from best management practices when viewing the evidence of algal blooms, or anaerobic water chemistry, and estimated loading from such development.
Run-off from developments in
Existing Ordinances and Regulations Are Inadequate
43. The
City Council notes that its
comprehensive plan clearly states the need for the best available
standards of protective measures, “Due to the scenic and recreational
character of the area and due to the fact that both Woahink and Siltcoos
Lakes are sources of drinking water the highest control standards should
be maintained.”[51]
Further, Goal Six of Oregon's Statewide Planning Goals & Guidelines states: “To maintain and improve the quality of ...water and land resources of the state: All waste and process discharges from future development, when combined with such discharges from existing developments shall not threaten to violate, or violate applicable state or federal environmental quality statutes, rules and standards. With respect to the... water and land resources of the applicable... river basins described or included in state environmental quality statutes, rules, standards and implementation plans, such discharges shall not (1) exceed the carrying capacity of such resources, considering long range needs; (2) degrade such resources; or (3) threaten the availability of such resources." [52]
The
need for measures necessary to conserve
the quality and beneficial uses of the
water resources of the City is further
articulated in its Comprehensive Plan,
“Nonpoint Source Pollution (NPS) can be defined as
discharged pollution (such as suspended solids, sediments, and nutrients)
which enter surface water and groundwater in a diffuse manner that
degrades water quality. NPS is often caused by poor land use practices and
can include erosion, improper use of herbicides and pesticides, polluted
urban runoff, and poor maintenance of septic tanks. The degradation occurs
with the accumulation of many small actions but the combined cumulative
impact can be serious. NPS is one of the major sources of
contamination the city will have to address.”[53]
However current ordinances fail to adequately address these concerns that
are expressed nearly identically on page1.1 of the comprehensive DLCD and
DEQ document “Water Quality Model Code and Guidebook.”
44. There is an inherent uncertainty about how much additional phosphorus would shift Woahink or Siltcoos Lakes (all Woahink waters draining into Siltcoos Lake) to eutrophic conditions. In these cases, responsible lake management science stresses the need to stay far away from the threshold. The City agrees with the statement of noted limnologist Dr. Stephen Carpenter, “Hence the best management strategy is a precautionary one that stays away from situations that could cause a regime shift. ... Successful approaches for managing ecosystems subject to regime shifts seem to combine learning with precaution. ... Precaution implies avoidance of conditions that are likely to produce costly or damaging regime shifts.” [54]
Rising nutrient levels, the recent
occurrence of algal blooms, increasing
weeds, and presence of disease causing pathogens in our lake waters
are predictable indicators of irrevocable harm.
A.
Subsurface Waste Disposal
45.
Dunes City has no wastewater treatment facilities.
Residents and commercial businesses exclusively use subsurface waste
disposal systems for waste treatment. Dunes City has no
septic design criteria,
installation standards or ordinances of its own. It generally defers to
the standards or criteria set by Lane County or the State of Oregon that
do not reflect best practices for the highly permeable soils and nearness
of the lakes and wetlands.
Higher standards and criteria are needed to reduce nutrient flows to
ground waters, wetlands and the lakes.
Dunes City’s recently
adopted Septic Ordinance[55]
exhibits a general lack of scientific criteria and standards which could
be applied in a site specific manner, enforced with an initial system
inspection and follow–up procedures, and with meaningful penalties for
non–compliance. A resolution is needed to implement the ordinance, after
which it will take some time to set up and implement the record–keeping
needed to monitor its performance. These tasks can be put into effect well
within the limited moratorium time frame.
Numerous recent advances in the efficiency of subsurface systems in
removal of detrimental nutrients bring acceptable standards within reach
of an adequate set of ordinances.
B.
Soil Erosion
46. The Dunes City Comprehensive Plan mandates that the city upgrade ordinances and enforcement of such ordinances to address erosion problems. To date, however, erosion control ordinances have not been strengthened and the proposed revision (Ord. 155) of land use ordinances does not do so.
47.
48. Other municipalities or model codes have examples of effective erosion control ordinances with specific standards and criteria for water quality protection. The Department of Land Conservation and Development and Oregon Department of Environmental Quality Manual “Water Quality Model Code and Guidebook” (2000) (WQMCAG) is one model, which has been adopted by the city of Troutdale, Oregon.[56]
49. Troutdale’s code includes specific standards for development in local specific areas draining into water bodies vital to the community.[57] It employs the requirement for a site-specific erosion control plan for any development exceeding a minimum stated size or with slopes exceeding 5%. Developments falling below these thresholds are required to utilize a standard defined erosion control plan. Further, both plans include strict standards for the length of time disturbed soils can be exposed.
50. The WQMCAG publication and Troutdale code include compliance time schedules of planned measures, identify a specific person responsible for carrying out the plan, and mandate daily inspections during rainy periods and record-keeping requirements. Higher standards of treatment can be required for developments of over 10 acres or if steep or constrained slopes are involved. A financial guarantee is required to secure implementation of the erosion control plan except in the case of very small developments.
51. Curry County, Oregon very recently adopted amendments to its zoning ordinance that require new development to file an erosion prevention and sediment control plan.[58] This requirement applies to any development that disturbs 800 sq. ft. or more soil, or creates the lesser of 2000 sq. ft. or 25% of lot area of impervious surface. This plan “shall include specific interim and permanent measures that will prevent erosion and control sediment.” It also must include strategies to minimize removal of vegetation and must be prepared by a geologist for slopes over 15%. Another key feature of Curry County’s new code is that final subdivision plats and lot titles are recorded with the requirement that all development must be consistent with the erosion and sediment plan and subsequent owners are obligated to maintain improvements made as part of the plan.
52. No provisions for a site specific erosion control plan in the current or proposed revised Dune City Code puts the beneficial use of our water at grave risk and risks further erosion problems, such as is currently taking place at Little Woahink Lake.
C.
Site Review
53. Dunes City ordinances call for site review on development of slopes over 12% grade and “may require” an engineer’s report on these slopes.[59] Without the specific requirement of an expert engineer’s report, the City is exposed to great risk of erosion damage. Further, no upper limit is specified on slope grades beyond which no development is allowable. At present there is no language that addresses standards for the percentage of area disturbance on different gradients. Since destructive erosion and landslides increases dramatically with the gradient, this lack of criteria puts the city’s water resources at risk for sedimentation and increased nutrient loading. The WQMCAG cited above, and developed for the state of Oregon, suggests code that applies density restrictions on constrained slopes (w% to x% gradient) and prohibits development on newly recorded steep slope lots (y% to z% gradient), the local jurisdiction applying appropriate gradients.
This model code requires the following for development on constrained slopes:
1. Impervious surface limits
2. Cut and fill limits
3. Vegetation standards
4. Submission of following documentation:
A. Hydrology and geology reports
B. Soils report
C. Grading plan
D. Vegetation report
E. Certification of runoff and sedimentation levels
D.
Non-point Source and Stormwater
Management
54. The Dunes City code has no requirement for stormwater or erosion control plans nor does it require initial or final inspections regarding either of these elements of proper planning. Dunes City does not utilize an organized or comprehensive approach to planning, permitting, and review processes regarding erosion control, sedimentation or surface water or storm runoff. The details of ordinance 156.218.(C) “Criteria for site review evaluation.” makes no mention of planning for stormwater.
55.
The Dunes City comprehensive plan identifies non-point source
pollution as a major concern that is often the product of poor land use
practices; and calls for new development, including road building, to
provide a stormwater management system.[60]
56.
Dunes City lacks an ordinance addressing the prohibition of
fertilizer use containing phosphorus within its minimal 50–foot riparian
overlay zone or within it’s 1000 foot sensitive zone. And the use of
these fertilizers in such close proximity to lakes, streams, and wetlands
is very likely a significant source of detrimental nutrient loading to
these water bodies.
57.
Dunes City’s regulations on drainage (Ch. 155.104) require only
“drainage facilities… adequate for the purpose of proper drainage of
the subdivision area or areas affected thereby.”
This provision falls far short of the comprehensive plan mandate
“shall provide a storm water management system consistent with sound
engineering practice.” The
objective of compliance with this ordinance would be simply to get the
water off of the subject property and surrounding area.
Further standard of “the preservation of healthful and convenient
surroundings and conditions for residents of the subdivision area and the
benefit of the general public” lacks specific guidelines or standards
and is meaningless and unenforceable.
Further, it fails to address consequences to down stream properties
or the water resources of the city of “drainage” of sediment and
nutrient-laden runoff. Standards
are needed to ensure the well being of adjacent properties.
58.
A survey of the ordinances of other jurisdictions points to the
widespread adoption of comprehensive and specific stormwater management
plans. This is particularly
applied in municipalities and counties with valued water resources.
In fact the U. S. Environmental Protection Agency is now requiring
small cities that operate regulated separate storm sewer systems to
develop, implement, and enforce a program to reduce pollutants in
post-construction runoff in any development that disturbs one acre or more
of soil. While
59. Ordinances utilizing Best Management Practices (BMPs) can be developed by adoption of specific structural and non-structural runoff mitigation measures or by performance-based standards. Many structural BMPs are directed at improving infiltration of runoff into the ground. For the highly permeable sandy soils and short distances to lake waters in Dunes City, this approach may serve only to introduce pollutants into our drinking water aquifer. Structural BMPs that integrate vegetative uptake of nutrients and other pollutants would be effective measures for the City. The City must specify the use of vegetated conveyances to the maximum extent possible. It should further interpret “maximum extent possible” as indicating the need for site-specific reviews.[61]
60. The City Council notes that other jurisdictions routinely provide for a systematic storm water management approach. Thus, the Waukesha County, Wisconsin, Storm Water Management and Erosion Control Ordinance provides: “Experience has shown that it is important that storm water be included in the early phases of site planning, because it can have major impacts on the final layout, design and landscaping plans.”[62]
61. Waukesha County requires separate grading, stormwater, and erosion control plans with final inspections to check for compliance with these required plans. Best management practices are an integral part of these plans, with maintenance agreements to guarantee that installed treatment facilities are kept fully functional. A final site inspection is required in the Waukesha County ordinance.
62.
The state of Maryland specifies a number of structural and
non-structural stormwater management measures, and gives local
jurisdictions the latitude to utilize one or more of them in their
mandated stormwater management plan.[63]
63.
Vegetative biological uptake structural Best Management Practices (BMPs)
serve the dual purpose of filtering sediments and removing nutrients from
stormwater. These measures
include Bioretention/Rain Gardens, Grassed Swales, Vegetated Filter
Strips, Berms, Wet Meadows, Wet Basins and Constructed Wetlands. These
standards can be established with a matrix of dozens of native species to
be used in vegetative stormwater management measures in different soil and
moisture conditions.[64]
64.
Non–structural BMPs take the form of
development policies such as limitation on the area of impervious surface
allowed in new construction. (See the municipality of Stratham, New
Hampshire and Whatcom County, Washington, specifying limits of 10 to 20%
impervious coverage; See Aquifer District Ordinance, Stratham, NH and
Whatcom County Code Sec. 20.71.300)
65.
A limitation on impervious surface establishes
a larger vegetated surface in any given area.
This attenuates surface flow velocity and volume, and increases
sediment and nutrient removal by increasing biological uptake of
nutrients.
66.
The City Council notes a performance-based approach to surface
water management relies on quantitative analysis of surface water to
measure parameters such as nitrogen, phosphorus, and total suspended
solids. Under a
performance–based approach these specified loads can be achieved through
a variety of BMPs. The
high permeability and proximity to drinking water sources of the soils in
Dunes City necessitates either a well proven technological approach or a
performance based approach or a combination of both.[65]
E.
Re-vegetation
67.
Dunes City Code Section 151.048(D)
"Excavation and Grading" addresses re–vegetation but
states simply: “No graded or excavated surface shall be left abandoned
or without re-vegetation for more than
one year…” The WQMCAG model, as
adopted by Troutdale, illustrates a reasonable standard: “During the
rainy season (November through May), soils shall not be exposed for more
than seven consecutive (7) days. All disturbed land areas which will
remain unworked for 21 days or more during construction, shall be mulched
and seeded.”
Dunes City’s Code exhibits a
general lack of criteria and standards and a failure to employ proven best
management practices, instead of standards that are applied in a site
specific manner, enforced with initial site review as well as follow up
procedures, and with meaningful penalties for non-compliance.
---------------------
ORS 197.520(3)(b) – THE MORATORIUM IS LIMITED TO AVOID
UNREASONABLE RESTRICTION OF NEEDED HOUSING.
68.
The City finds that 18 housing units will be needed each year to
meet the demands of population growth.[66]
Dunes City’s vacancy rate of 16 percent suggests ample housing is
available. As of March, 2003, 15 homes and 10 lots/vacant land were listed
for sale. The average home construction rate from 1998 to 2004 was 12
homes, with construction permits for 11 single family dwellings and four
mobile homes being issued in 2005. Three preliminary subdivision plats
were also approved in 2005, adding 34 new building lots. A moratorium will
have no effect on the City’s supply of commercial and industrial
facilities as the City has 16.6 aces of Commercial designated land and
five of these acres are vacant. There is no recent occupation of
properties for industrial use to demonstrate additional need. Nor will the
moratorium on City acceptance of additional partition/PUD/subdivision
development proposals place any restrictions on county or special
districts.
-----------------------
ORS 197.520(3)(c) – ALTERNATIVE METHODS OF ACHIEVING THE OBJECTIVES OF THE MORATORIUM ARE UNSATISFACTORY.
69. One of the goals of the City is to establish water–protection through related ordinances for a meaningful portion of available buildable lands, and that the massive surge in development applications requires expedient and decisive action by the City. The City Council believes that a coordinated set of Ordinances governing private property development as well as comprehensive storm water management and vegetative practices affecting city lands avoid a piecemeal approach to protecting water-quality values. The City Council also believes that ordinance concepts should not be viewed in isolation. Issues like sediment surges due to storm water surging requires a coordinated approach to surface water management or to avoid ground water contamination.
70. The City has inadequate planning staff with expertise that can assist in reviewing and drafting such a new comprehensive ordinance set, and so relies on volunteers. Based upon past experience with the CCI process, or committee process, redrafting single ordinance subject areas may take several years. The partial redraft of procedural standards regarding zoning in Title 155 has taken several years and remains incomplete. The draft of the new and limited septic inspection ordinance took over 3 years to complete. Due to the present serious concern of many citizens, a major effort is now underway to identify the explicit measures and the means of implementing them within the time frame of the proposed moratorium.
71. In view of the national, regional and state importance of these area waters and parks, including the Dunes National Recreation Area, the City ordinances are now inadequate to implement Oregon's Statewide Planning Goals #5 “To protect natural resources and conserve scenic and historic areas and open spaces.” [67] and Goal 17, Coastal Shorelands; "Land use plans, implementing actions and permit reviews shall include consideration of the critical relationships between coastal shore lands and resources of coastal waters ... agencies shall within the limit of their authorities maintain the diverse environmental, economic, and social values of coastal shore lands and water quality of coastal waters. Within those limits, they shall also minimize man-induced sedimentation in estuaries, near shore ocean waters, and coastal lakes."[68]
72. Residential growth inevitably entails uses of common residential chemicals and fertilizers resulting in an increase of nutrient and contaminants loadings. The City also finds that the Oregon State Legislature has pre-empted local governments from enacting ordinances controlling the use of many such chemicals thereby limiting the options of communities trying to protect their groundwater and wetlands; Ordinances controlling chemical use have great difficulty in enforcement and compliance. More complex ordinances utilizing vegetative, or native vegetative concepts provide an incentive to use less chemicals or fertilizers use and are more effective. Those ordinances should be part of a comprehensive approach to vegetative aspects of nutrient and sediment controls.
73. The City Council adopted a septic system maintenance ordinance on March 9, 2006. This ordinance represents only the initial stages of a septic maintenance program that will take 5 years to fully implement. Unfortunately, the new ordinance will annually address a very small portion of the nutrient loading problem, since inspections do not have to occur in many instances for up to five years. Because the ordinance has no design or installation standards it does not reduce the relevant water quality impacts in a comprehensive manner.
74.
The voters of Dunes City have rejected the creation of a municipal
water system three times.[69]
According to the City’s Comprehensive Plan, residents are served by
small community water systems, and more than 200 homes pump water
directly from the lakes for domestic use.[70]
The remainder utilize either wells or springs. The estimated cost of a
water supply system is placed at approximately $4,914,000 in1992 dollars.
The City finds that 100,000 lineal feet of piping, with a current cost of
approximately $100.00 per lineal foot installed, would cost in the
neighborhood of $10,000,000.[71]
An adequate treatment plant would add substantially to this cost as would
the personnel to staff and maintain it. The
City’s Comprehensive Plan cites the following conclusion of the Lane
County Coastal Resource Inventory “....The cost of installation of a
sanitary sewer system is well beyond the means of the local communities in
the lakes study area..[72]
75.
Disincorporation of the City in order to establish large lot sizes
under county minimum lot size rules is not an alternative to protecting
water values. Attempting to establish larger lot sizes would result in
Measure 37 claims for which there are no known funds to pay waivers.
Any number of alternative scenarios to mitigation of the pollutant
loads to our lakes, wetlands and underground waters are possible. These
alternatives could include an ordinance restricting use of fertilizers in
the riparian zone or sensitive areas abutting the lakes, a vegetation
management ordinance, public education programs, or other measures.
While existing sources of pollutants are certainly significant and
must be addressed where possible, the critical level of nutrient loading
could be surpassed very soon, as was emphasized by the work Dr. Mark
Chernaik. The limited staff time and resources of the city need to be
focused on the development and implementation of adequate ordinances,
which have been previously referred to. This urgency and needed focus
reduces the value of all alternative approaches.
ORS 197.520(3)(d) – THE NATURE AND SCOPE OF THE IRREVOCABLE PUBLIC HARM ARE SUCH THAT IT OUTWEIGHS THE ADVERSE EFFECTS ON OTHER AFFECTED LOCAL GOVERNMENTS THAT MAY RESULT FROM THE MORATORIUM.
76.
The moratorium is limited in scope, excluding development on single
lots and land development projects already approved or for which applications have been received. These exempted lots
(in excess of 80) exceed the usual or customary housing increase for the
initial limited moratorium period as well as any possible extension. Thus
there should be no shift in housing impacts to any other locality,
including
77. The limited moratorium does not single out industrial or commercial properties and the current inventory of those lands exceeds past demand, so those lands remain available for development during any limited moratorium. Accordingly, there is no impact or shifting concerning those uses. The City has 16.6 acres of commercially designated land, 5 acres of which are vacant.[73] There is n