Over the last year, Oregon’s land use and water laws have been front and center in a number of controversial development projects. Further, opponents of projects involving water appropriation, delivery, or use have been increasingly using Oregon’s land use laws in an attempt to slow or stop the water projects. And conversely, opponents of a proposed aggregate mine near Prineville, Oregon are raising water quality concerns in response to a land use application for the mine.
Water quality concerns have been raised in conjunction with aggregate mines in the past, and both the Oregon Water Resources Department and the Oregon Land Use Board of Appeals have confronted the issue. Under the post-acknowledgement plan amendment siting process, once an aggregate site is determined to be a significant resource under Goal 5, a local government must follow the process set forth in OAR 660-023-0180(4) to determine whether to allow mining on the site.
That process includes the following steps: 1) identify the impact area for the proposed activity; 2) identify land uses within the impact area that will be affected by the mining and specify any predicted conflicts; 3) minimize predicted conflicts through reasonable and practicable measures to allow the mining; and 4) if conflicts cannot be minimized, determine and weigh the economic, social, environmental, and energy consequences of “allowing, limiting, or not allowing mining at the site.”
The conflicts analysis of step 2 is set forth at OAR 660-023-0180(4)(b). It provides that local governments may consider among other things:
(A) Conflicts due to noise, dust, or other discharges…
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(D) Conflicts with other [significant] Goal 5 resource sites within the impact area;
(E) Conflicts with agricultural practices.
The water resources component of these cases falls within the conflicts analysis outlined in these criteria. Examples of past cases where this was an issue include Eugene Sand and Gravel, Inc. v. Lane County, LUBA No. 2002-068 (upheld on appeal in Eugene Sand and Gravel, Inc. v. Lane County 189 Or. App. 21, 74 P.3d 1085 (July 30, 2003); Molalla River Reserve, Inc. v. Clackamas County, 42 Or LUBA 251 (2002); and Jorgensen v. Union County, 37 Or LUBA 738 (2000).
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