1. (1) The Legal Effect of the Management Plan. This section of the Metolius Area of Critical State Concern contains the operative provisions of the designation. The earlier sections are intended only as background for the land use management plan. The provisions of the management plan will become effective upon filing of this rule with the Secretary of State. No further action by the commission or by Jefferson of Deschutes County is required for the plan to take effect. Specifically, neither county is required to amend its comprehensive plan or land use regulations as a result of this management plan. Instead, the counties will apply the provisions of this management plan directly to any land use decision that the plan applies to (as specified in more detail below). The Management Plan provisions in this section apply in addition to and (in some cases) instead of other state and local land use statutes, goal, rules, plans and regulations governing land uses within the Area of Critical State Concern. If any statute, goal, rule, plan or regulation conflicts with a provision of this Management Plan, the plan will control upon the effective date of legislation approving the plan. All other programs and regulations of state agencies, Jefferson County and Deschutes County are not affected by this Management Plan. The Management Plan may be amended by the commission, as provided and subject to the limitations contained in subsection 4 of this section.
2. (2) The Boundary of the Area of Critical Concern. The Area of Critical State Concern consists of two areas: The Metolius basin itself, except for the Three Rivers unincorporated community and lands to the east of Three Rivers (defined by surface hydrology as mapped by the Oregon Water Resources Department, and as shown in Exhibit A) (Area 1); and an area along the edge of the basin located to include lands where groundwater use is likely to adversely effect surface water flows in the Metolius basin, or where large-scale development would adversely affect important deer or elk winter range (as shown in Exhibit A) (Area 2). The eastern boundary of Area 1 was adjusted by the commission to remove the Three Rivers unincorporated community from the boundary, along with lands to the east of Three Rivers. The boundary otherwise encompasses the surface drainage of the Metolius River, including Fly Creek. The boundary of Area 2 was developed based on two criteria: the area where groundwater withdrawals are likely to substantially affect surface flows in the Metolius River (by more than 30 percent); and the area identified as especially sensitive big game habitat by ODFW or identified as important winter or transitional deer or elk range by the U.S. Forest Service. The boundary of Area 2 was adjusted to follow section lines to assist in the administration of the Management Plan.

3. (3) Management Plan Objectives. The Management Plan for the Metolius Basin Area of Critical State Concern (“the Management Plan”) is intended to achieve three important objectives. These objectives will guide the commission and Jefferson and Deschutes Counties in the implementation of the Management Plan.

   1. (a) Protect the Basin. The Management Plan is designed to protect the Metolius Basin (Area 1) and Area 2 from large-scale development that would be inconsistent with the outstanding and unique environmental, cultural and scenic values and resources described in Section V of the Management Plan. This is accomplished by prohibiting large-scale development in the basin itself, and by substantially limiting such development in Area 2. The location and development limits with Area 2 have been planned carefully, based on the likely hydrological impacts of development and the location of important wildlife resources. Within Area 2 the amount, location and type of development are limited to: assure no negative impact to the Metolius River, its springs or its tributaries; assure no negative impact to fish resources in the ACSC; and assure no negative impact to wildlife resources in the ACSC. The limitations do not affect small-scale development allowed under existing zoning, or existing land uses including the development of platted lots in Camp Sherman or the Three Rivers unincorporated communities.
   2. (b) Give Jefferson County a Clear Path to Allow Small-Scale Recreation Oriented Development Consistent with the Carrying Capacity of the Area. The Management Plan also recognizes the economic development objectives of Jefferson County by authorizing small-scale recreation-oriented development within a small portion of the two areas mapped by the county for destination resort development. In addition, the Management Plan allows Jefferson County to remap without regard to the 30-month waiting period that would normally apply under ORS 197.455.
   3. (c) Provide a Fair Result for the Property Owners. The Management Plan provides fairness for the property owners that would be directly affected by the proposed management plan by giving them an entitlement that they do not currently have in exchange for the prohibition on large scale resort or other large-scale development. The level of entitlement for the Metolian property set to offset the costs that have been incurred in preparing detailed development plans for the property. The entitlements for the Ponderosa property reflect the development allowed under existing zoning. The Management Plan does not eliminate statutory claims for compensation the owners may (or may not) have under Measure 49.

4. (4) Management Plan General Standards and Procedures. The following standards limit the authority of the commission to amend the Management Plan, by prohibiting certain changes to the plan without legislative approval, and by setting general standards for other changes.

   1. (a) Changes Prohibited Without Legislative Approval. The following types of changes in the designation and Management Plan are prohibited without legislative approval:

      1. (A) Any change to the boundary of the ACSC, including its two Areas, of more than 50 acres;
      2. (B) Any change to the prohibition of a destination resort, as defined by Statewide Planning Goal 8 or ORS 197.435 et. seq.; or
      3. (C) Any change that would authorize an exception to a Statewide Planning Goal in order to allow the development of more than 100 residential units.

   2. (b) Other Changes. Other changes to the boundary of the ACSC or Management Plan by the commission are allowed without legislative approval, subject to the following standards: Any new development allowed by the change will not result in:

      1. (A) Negative impact to the Metolius River, its springs or its tributaries;
      2. (B) Negative impact on fish resources in the area of critical state concern; or
      3. (C) Negative impact on the wildlife resources in the area of critical state concern.
   3. (c) Procedure for Amendments. If the commission proposes to amend, add to or remove the boundary of Area 1 or Area 2, or to amend any provision of the Management Plan in a manner that is subject to paragraph (a) of this subsection, the amendment will not take effect until the effective date of legislation approving the amendment. If the commission proposes to amend, add to or remove the boundary of Area 1 or Area 2, or to amend any provision of the Management Plan in a manner that is not subject to paragraph (a) of this section, it shall do so by following the applicable rulemaking procedures specified in ORS 183.325 et. seq. The commission shall hold at least one hearing in Jefferson County on any proposed change to the boundary of the ACSC or any proposed change to the Management Plan.
   4. (d) In addition, the commission shall give notice of proposed amendments to the management plan to the governing bodies of Jefferson County and the Confederated Tribes of the Warm Springs Indian Reservation. If either governing body files a written objection to the proposed amendment within 45 days of the notice, the commission may adopt the proposed amendment only if the commission finds by clear and convincing evidence that the proposed amendment meets the applicable requirements of 2009 Or Laws, chapter 712.
   5. (e) Implementation of the Management Plan. Notwithstanding other statutory requirements, neither Deschutes County nor Jefferson County is required to amend their comprehensive plan or land use regulations as a result of the designation or the Management Plan. Instead, the two counties will apply the designation and Management Plan directly to any application for a permit or land use decision within the ACSC, to the extent that this section of the Management Plan specifies that the Management Plan applies to the proposed use. The Management Plan will apply in the same manner as provided by ORS 197.646(4). If the county receives a land use application that is subject to the Management Plan, it must provide written notice to the department 15 days prior to the deadline for comments or testimony on the application. Any development or use of land not specifically regulated by this Management Plan is subject to the otherwise applicable provisions of state and local laws, goals, rules, plans and regulations.

5. (5) Management Plan Supplemental Land Use Regulations, Area 1: Metolius Basin. Area 1 is the area shown as Area 1 on Exhibit A.

   1. (a) Prohibited Uses and Activities (Jefferson and Deschutes Counties). In addition to the existing provisions of state statutes, statewide land use planning goals and rules, and the acknowledged Jefferson County and Deschutes County Comprehensive Plans and land use regulations, the following uses and activities are prohibited on all lands in Area 1:

      1. (A) Any new destination resort, as defined by Statewide Planning Goal 8 (Recreation) or ORS 197.435 to 197.467;
      2. (B) Any new golf course;
      3. (C)Any new residential development exceeding 10 dwelling units on a tract, regardless of whether an exception is taken (except as provided in subparagraph (b)(D), below);
      4. (D) Any new commercial or industrial development that would have an average annual consumptive use of water of more than 5 acre-feet, and small-scale, low impact uses allowed under OAR 660-022-0030; and
      5. (E) Any new uses of a tract of land that would have an average annual consumptive use of water in excess of 5 acre-feet, except as provided in subparagraph (b)(D), below.

   2. (b) Special Land Use Provisions (Jefferson County). The following uses and development in the portion of Area 1 in Jefferson County are not subject to paragraph (a), above:

      1. (A) All uses allowed by the current provisions of the Jefferson County comprehensive plan and land use regulations concerning the Blue Lake, Camp Sherman Vacation Resort, Camp Sherman Rural Service Center, Camp Sherman Rural Residential (3 acre and 5 acre) areas.
      2. (B) Farm uses and forest uses allowed under Statewide Planning Goal 3 or Goal 4, including conditional uses of farm and forest land allowed by Goals 3 and 4 or their implementing rules (so long as any conditional use does not have an average annual consumptive use of water in excess of 5 acre-feet).
      3. (C) Non-farm uses allowed under Statewide Planning Goal 3 and its implementing rules (so long as any non-farm use does not have an average annual consumptive use of water in excess of five acre-feet).

      4. (D) A small-scale recreation-oriented development within the area mapped as eligible for destination resort development by Jefferson County in Township 13 South, Range 8 East, section 13. The development authorized by this section consists of:

         1. (i) Up to twenty-five residential units and up to ten additional overnight accommodations in a lodge format, or including cabins on the lodge footprint, and accessory uses and activities including a small accessory restaurant and recreation-oriented amenities;
         2. (ii) All units must be sited within a single clustered node of development, not to exceed 25 acres in size (access roads to the node and fire buffer areas are not included in the 25 acre limitation). The units must be sited, clustered and designed to minimize conflicts with wildlife in consultation with the Oregon Department of Fish and Wildlife, the U.S. Forest Service and the Confederated Tribes of the Warm Springs.
         3. (iii) Fire siting standards must meet or exceed the standards in Jefferson County zoning code section 426;
         4. (iv) The average annual consumptive water use for this development may not exceed 12.5 acre-feet; however, this limitation does not include water for fire-fighting needs on or off-site;
         5. (v) Individual residential lots may not exceed one acre in size, with a maximum disturbance area of 35 percent;
         6. (vi) Front and rear yard minimum setbacks are 10 feet; minimum side yard setbacks are 5 feet;
         7. (vii) Roads to serve the residential lots may be private;
         8. (viii) Jefferson County's review of development carried out under this section shall demonstrate compliance with the applicable provisions of this Management Plan, together with applicable county site plan and land division requirements, as set forth in Jefferson County's land use regulations;
         9. (ix) This use is allowed not withstanding any state statute in ORS chapters 197 or 215 to the contrary, and notwithstanding any Statewide Planning Goal or implementing rule to the contrary, and notwithstanding any land use regulation or comprehensive plan provision of Jefferson County to the contrary;
         10. (x) If the owner of the property described in this paragraph elects to carry out this use, the property not used for residential use or overnight accommodations (including any common facilities) must be dedicated as open space. In addition, if the owner elects to carry out this use, all other property owned by the owner, or any affiliate of the owner, within Area 1 or Area 2 may not be developed with farm, non-farm or forest dwellings that would otherwise be allowed under applicable state and local land use regulations;
         11. (xi) If the 2009 Legislative Assembly enacts a bill that provides for an owner, or affiliate of an owner, of the property described in this section to carry out a pilot project to develop a sustainable eco-community outside of Area 1 and Area 2, then the development authorized by this section is limited to two forest dwellings.
         12. (c) Special Land Use Provisions (Deschutes County). The following uses and development in the portion of Area 1 in Deschutes County are not subject to paragraph (a), above:
      5. (A) All uses allowed by the applicable provisions of Deschutes County's current acknowledged comprehensive plan and land use regulations (so long as any new use does not have an average annual consumptive use of water in excess of 5 acre-feet);
      6. (B) Farm uses and forest uses allowed under Statewide Planning Goal 3 or Goal 4, including conditional uses of farm and forest land allowed by Goal 4 or their implementing rules (so long as any conditional use does not have an average annual consumptive use of water in excess of 5 acre-feet);
      7. (C) Non-farm and non-forest uses allowed under Statewide Planning Goals 3 and 4 and their implementing rules (so long as any non-farm or non-forest use does not have an average annual consumptive use of water in excess of five acre-feet).

6. (6) Management Plan Supplemental Land Use Regulations, Area 2: Metolius Water/Wildlife Buffer Area. Area 2 is that area shown as Area 2 on Exhibit A.

   1. (a) Prohibited Uses and Activities (Jefferson and Deschutes Counties). In addition to the existing provisions of state statutes, Statewide Planning Goals and their implementing rules, and the acknowledged Jefferson County and Deschutes County Comprehensive Plans and land use regulations, the following uses and activities are prohibited on all lands in Area 2:

      1. (A) Any new destination resort as defined by Statewide Planning Goal 8 (Recreation) or ORS 197.435 to 197.467;
      2. (B) Any new golf course;
      3. (C) Any new residential development exceeding 20 dwelling units on a tract, regardless of whether an exception is taken;
      4. (D) Any new commercial or industrial development, other than those commercial or industrial uses that would have an average annual consumptive use of water of less than 10 acre-feet, and other than those small-scale, low impact uses allowed under OAR 660-022-0030; and
      5. (E) Any new uses of a tract of land, not including any farm use, that would have an average annual consumptive use of water in excess of 10 acre-feet, except as provided in paragraph (b), below.

   2. (b) Special Use Provisions (Jefferson County). The following uses and development in the portion of Area 2 in Jefferson County are not subject to paragraph (a), above:

      1. (A) Farm uses and forest uses allowed under Statewide Planning Goal 3 or Goal 4, including conditional uses of farm or forest lands allowed by Goal 3 or Goal 4 or their implementing rules (so long as any conditional use does not have an average annual consumptive use of water in excess of 5 acre-feet).
      2. (B) Non-farm uses allowed under Statewide Planning Goal 3 and its implementing rules (so long as any non-farm use does not have an average annual consumptive use of water in excess of five acre-feet).

      3. (C) The development of a small-scale recreation community within Township 13 South, Range 10 East, sections 20, 21, 28, and/or 29 in Jefferson County. The development authorized by this section consists of:

         1. (i) Up to 100 residential units and up to twenty additional overnight accommodations in a lodge format, or including cabins on the lodge footprint, and accessory uses and activities including a small accessory restaurant and equestrian facilities or other recreation-oriented amenities (not including a golf course);
         2. (ii) All units must be sited within up to 25 clusters that may be connected only by a road system, not to exceed 320 acres in size (access roads to the nodes and fire buffer areas are not included in the acreage limitation). The units and nodes must be designed to minimize conflicts with wildlife in consultation with the Oregon Department of Fish and Wildlife, the U.S. Forest Service and the Confederated Tribes of the Warm Springs;
         3. (iii) Fire siting standards must meet or exceed the standards in Jefferson County zoning code section 426;
         4. (iv) The average annual consumptive water use for this development may not exceed 60 acre-feet; however, this limitation does not include water for fire-fighting needs on or off-site;
         5. (v) Individual residential lots may not exceed five acres in size, with a maximum disturbance area of 35 percent;
         6. (vi) Roads to serve the residential lots may be private;
         7. (vii) Jefferson County's review of development carried out under this section shall demonstrate compliance with the applicable provisions of this Management Plan, together with applicable county site plan and land division requirements, as set forth in Jefferson County's land use regulations;
         8. (viii) This use is allowed notwithstanding any state statute in ORS chapters 197 or 215 to the contrary, and notwithstanding any Statewide Planning Goal or implementing rule to the contrary, and notwithstanding any land use regulation or comprehensive plan provision of Jefferson County to the contrary. If the owner of the property described in this paragraph elects to carry out this use, the property not used for residential use or overnight accommodations (including any common facilities) must be dedicated as open space. In addition, if the owner elects to carry out this use, all other property owned by the owner or any affiliate of the owner within Area 1 and Area 2 may not be developed with farm, non-farm or forest dwellings that would otherwise be allowed under applicable state and local land use regulations.

7. (7) Special Use Provisions (Deschutes County). The following uses and development in the portion of Area 2 in Deschutes County are not subject to subsection (6), above:

   1. (a) All uses allowed by the applicable provisions of Deschutes County's current acknowledged comprehensive plan and land use regulations, except the development of a new destination resort (completion of development already authorized for Black Butte Ranch is not limited by this Management Plan);
   2. (b) Farm uses and forest uses allowed under Statewide Planning Goal 3 or Goal 4, including conditional uses of forest land allowed by Goal 4 or its implementing rules (so long as any conditional use does not have an average annual consumptive use of water in excess of 5 acre-feet);
   3. (c) Non-farm uses allowed under Statewide Planning Goal 3 and its implementing rules (so long as any non-farm use does not have an average annual consumptive use of water in excess of five acre-feet);
   4. (d) The development of up to ten residential units within the area mapped as eligible for destination resort development by Deschutes County in Township 14 South, Range 9 East, Section 21. However, the development area for such units (the area of any lots and common facilities, but not including common open space) may not exceed ten acres. The units must be sited, clustered and designed to minimize wildfire risk and the costs of protection from wildfire in consultation with the Oregon Department of Forestry and the U.S. Forest Service. In addition, the annual average consumptive water use for this development may not exceed 5 acre-feet. This use is allowed not withstanding any state statute in ORS Chapters 197 or 215 to the contrary, and notwithstanding any Statewide Planning Goal or implementing rule to the contrary, and notwithstanding any land use regulation or comprehensive plan provision of Deschutes County to the contrary. If the owner of the property described in this paragraph elects to carry out this use, the property not used for residential units and common facilities must be dedicated as open space.

8. (8) Alternative Resort Siting Provisions (Jefferson County). Alternate Destination Resort Sites. Notwithstanding ORS 197.455(2) Jefferson County may map other locations as eligible for destination resort development (outside of the Area of Critical State Concern) without waiting 30-months from the previous destination resort map adoption. Mapping conducted, if any, pursuant to this provision must satisfy all other applicable provisions of law. This subsection sunsets on January 1, 2014.

   EXHIBITS:

   Exhibit A, Metolius Area of Critical State Concern, Area 1 and Area 2 (Map)

   Exhibit B, Metolius ACSC Management Plan, April 2, 2009

   Exhibit C, Metolius Area of Critical State Concern, Areas 1 and 2 Boundary — Jefferson County, Description of the lineage of the ACSC Data Set

   Exhibit D, Metolius Area of Critical State Concern, Boundary Area Between Areas 1 and 2 — Description of the Lineage of the ACSC Data Set

   Exhibit E, Metolius Area of Critical State Concern, Areas 1 and 2 Boundary — Deschutes County, Description of the Lineage of the ACSC Data Set.

   [ED. NOTE: Exhibits referenced are available from the agency.]

   [ED. NOTE: To view attachments referenced in rule text, click here for PDF copy.]

Statutory/Other Authority

ORS 197.040 & HB 3298

Statutes/Other Implemented

ORS 197.405 & 2009 OL Ch. 712

History

LCDD 5-2010, f. & cert. ef. 5-13-10