METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, March 17, 1998

Council Chamber

Members Present:  Lisa Naito (Chair), Patricia McCaig (Vice Chair), Don Morissette

Members Absent:    None  

Also Present:    Susan McLain, Ruth McFarland

Chair Naito called the meeting to order at 1:35 P.M.

1.  CONSIDERATION OF THE MARCH 3, 1998, GROWTH MANAGEMENT COMMITTEE MEETING MINUTES

Councilor Morissette said he would abstain from the vote as he was not at the March 3, 1998, Growth Management Committee meeting.

3.  PRESENTATION ON WATER QUALITY
 ·  STATE’S ROLE IN WATER QUALITY PROTECTION

 ·  METRO’S JURISDICTION OVER WATER QUALITY

Chair Naito said she invited Ray Jaindl and Jim Johnson of the Oregon Department of Agriculture (DOA) to the meeting to discuss the DOA’s jurisdiction over water quality and agricultural land uses.

Mr. Jaindl gave a presentation. A copy of his presentation material is included in the meeting record.

Mr. Johnson said in addition to developing water quality plans, the DOA has a confined animal feeding operation (CAFO) program and responds to any complaints of agricultural waste that relates to the clean water act.

Mr. Jaindl reviewed the CAFO program. He said that while CAFO is separate from the Senate Bill (SB) 1010 process, the DOA is working closely with both programs to ensure that nothing is overlooked.

Chair Naito asked legal counsel to address Metro’s jurisdiction over water quality.

Larry Shaw, Senior Assistant Counsel, reviewed a memo he wrote to Chair Naito concerning Metro water quality regulation on farm land. A copy of the memo is included in the meeting record. In the memo, Mr. Shaw recommends replacing the term “agricultural activity” with “farms” or “farming ‘practices.” In addition, Mr. Shaw suggested that Metro request that the DOA include Title 3-type regulations in its water quality plans for water quality limited basins in the Metro jurisdictional area. He said Metro could coordinate with the DOA rather than simply address the legal preemption.

Chair Naito supported Mr. Shaw’s suggestion to coordinate with the DOA. She said the suggestion would be forwarded to Metro’s advisory groups. She asked for questions from the committee.

Councilor McLain said she recently attended a joint presentation with the Soil Water Conservation District in the Tualatin Basin in Washington County. She received a number of SB 1010 product papers, one of which reviews the requirements for the SB 1010 program. She asked the DOA representatives to discuss the deadlines listed in the document.

Chair Naito asked if the deadlines are limited to one specific watershed plan. She said committee discussion should focus on the relationship between Title 3 and the DOA.

Councilor McLain asked if the dates listed apply to one specific watershed plan or to SB 1010 across the state. Mr. Jaindl said the deadlines only apply to a specific plan. He said he believes the voluntary program is meeting its deadlines and goals.

Councilor McLain asked about the possibility of combining Metro’s Title 3 plan with the DOA’s plan for agricultural and stream-based land inside or outside the UGB. She asked if the DOA has reviewed Title 3 and estimated its usefulness and feasibility in those areas.

Mr. Johnson said he has reviewed Title 3 and believes the DOA can give it serious consideration. He said Bruce Andrews, DOA Director, is very active in urban and rural interface issues and, in Mr. Johnson’s opinion, would give serious consideration to any Metro recommendation.

Councilor Morissette thanked Mr. Jaindl and Mr. Johnson for their presentation. He said if the Council wants to address the issue of clean rivers, the scope of Title 3 must be broadened to include agricultural lands and the regulation must be fair.

Councilor McLain said she has been asked at public meetings to explain the science behind the United States Department of Environmental Quality’s (DEQ) determination of how much phosphate or phosphorous is allowed in the headwaters of a stream versus downstream. She asked Mr. Jaindl and Mr. Johnson for information on this question.

Chair Naito thanked Mr. Jaindl and Mr. Johnson for attending the meeting. She directed legal counsel to draft language to replace the term “agricultural activity” with “farms” or “farming practices” as recommended in Mr. Shaw’s memo. She directed legal counsel to draft language to strongly recommend coordination between Metro and the DOA.

Councilor Morissette recommended a discussion of a legislative agenda for the next legislative session to address water quality in farm lands.

Chair Naito agreed with Councilor Morissette’s suggestion. She said Metro’s jurisdiction is currently very limited by the DOA’s preemption.

2.  STREAM AND FLOODPLAIN PROTECTION PLAN DISCUSSION
 ·  METRO TECHNICAL ADVISORY COMMITTEE (MTAC) RECOMMENDATION

 ·  WATER RESOURCES POLICY ADVISORY COMMITTEE (WRPAC)          RECOMMENDATION

 ·  LEGAL CONSIDERATIONS

Doug Bollam, P.O. Box 1944, Lake Oswego, submitted written testimony. A copy of his testimony is included in the meeting record. He directed the committee’s attention to item four on page four of his testimony.

Chair Naito thanked Mr. Bollam for submitting written testimony and said she would review it and give copies to legal counsel and Metro’s advisory committees for review.

Chair Naito asked Mark Turpel, Senior Program Supervisor, Long-Range Planning, Growth Management Services, to give the committee an update of the status of WRPAC and MTAC’s recommendations. She asked him to highlight key issues and request any committee direction he might need.

Mr. Turpel said Growth Management Services is using the December 30, 1997, version of Title 3 as its base document because the public hearings were based on that version.

Councilor Morissette said the Council has heard testimony from Mr. Bollam many times. He asked Mr. Turpel and Mr. Shaw to analyze Mr. Bollam’s written testimony to determine if Title 3 would substantively damage the proposals. Councilor Morissette said he shares Mr. Bollam’s concerns.

Mr. Turpel gave a brief history of Title 3 and directed the committee’s attention to a memo from Elaine Wilkerson, Director of Growth Management Services, to Councilor McLain, dated March 11, 1998, concerning some remaining issues for Title 3 discussion at the Metro Policy Advisory Committee (MPAC). A copy of the memo is included in the agenda packet under agenda item two. Mr. Turpel reviewed the major differences between the recommendations of WRPAC and MTAC.

Councilor McFarland said she understands that the minimum width of a vegetated corridor is 15 to 20 feet. She said she firmly believes that any amount short of 50 feet is unacceptable.

Mr. Turpel directed the committee’s attention to the document from MTAC titled, “Criteria for Amending the Stream & Floodplain Protection Maps (Title 3) for Initial Adoption by Metro Council” dated March 5, 1998. A copy of the document is included in the agenda packet under agenda item two. He said MTAC is recommending that the Council recognize jurisdictions’ efforts to date on flood management and water quality, because some jurisdictions have done substantial work using different methodology than is proposed in Title 3. Mr. Turpel said WRPAC looked at MTAC’s proposed language at its last meeting and said they would not support MTAC’s approach if it means a relaxation of the standards.

Councilor McLain said she hopes MPAC will address the standards passed by the Council in the functional plan. She said Metro staff should understand that Title 3 is meant to augment, not change, standards that have been passed by the Council and agreed to by MPAC.

Mr. Turpel said a number of jurisdictions have expressed concern that Title 3 allows only one methodology for attaining the stated goals.

Councilor McLain said the disagreement between MTAC and WRPAC is not just a difference of opinion, but two different world views.

Chair Naito thanked Mr. Turpel for highlighting the differences of opinion and said it will be helpful information when the Council determines its position.

Councilor McCaig asked Mr. Turpel about the memo from Ms. Wilkerson to Councilor McLain dated March 11, 1998. She asked if the phrase “not addressed” means the committee chose not to address the issue. Mr. Turpel said “not addressed” means the committee has not yet had a chance to address the issue.

Chair Naito asked Mr. Turpel if he is looking for direction from the Growth Management Committee on the issue of vegetated corridor width. Mr. Turpel said the committee has the opportunity to comment on the issue for the benefit of the advisory committees.

Councilor McCaig said in terms of process, the committee should not give an opinion on a controversy between two advisory committees that has not yet been settled. She said she would prefer to wait until the advisory committees’ work is complete before she states her opinion as a committee member.

Chair Naito agreed. She said there was a recommendation that the committee consider whether Metro should address the constitutionality of the takings issue with respect to local jurisdictions. She said she asked legal counsel to draft language that Metro would defend the constitutionality of the Title 3 ordinance, so long as it was adopted by local jurisdictions is its entirety within a one-year period. She asked the committee to comment on her idea. Chair Naito said her goal is speed up the process on a voluntary basis by the local jurisdictions and to have some clarity for the local jurisdictions that Metro would be responsible for this portion. She said she used the word “defend” to limit Metro’s responsibility to the actual constitutionality of the issue rather than any issues of how it is administered locally, as Metro would have no control over administration.

Councilor McCaig asked for the timeline on the draft. She said she supports the idea and would like to pursue it. Chair Naito said she gave legal counsel direction today.

Councilor Morissette said he is anxious to hear a legal opinion of Metro’s ability to regulate local jurisdictions.

Chair Naito thanked Mr. Turpel for his presentation.

Councilor McCaig asked if Chair Naito wants the Growth Management Committee simply to stay abreast of policy debates in MTAC and WRPAC, and then at a later date, the committee will review both advisory committees’ recommendations and make a decision. Chair Naito said yes.

Judie Hammerstad, Clackamas County Commissioner and Chair of MPAC, said if MTAC votes on Thursday on the issues that have not yet been addressed, Title 3 should be on MPAC’s agenda on March 25, 1998. She said MPAC will vote on MTAC’s recommendations and forward its own recommendation to the Council. She said the Council will probably receive majority and minority opinions from MPAC.

Chair Naito said this is a good time for Councilors to incorporate their own ideas into Title 3.

Mike Houck, Audubon Society of Portland and Coalition for a Livable Future, said he believes two issues are critical. He said it is important when discussing the scientific basis for vegetated corridor distances to point out that there are reasons besides direct water quality benefits for 200 foot buffers, such as slope stability. He said there needs to be more discussion to clarify if there is any language in Title 3 that would prohibit United Sewerage Agency from coordinating with a number of jurisdictions to produce a Tualatin River Basin-wide proposal for Metro.

Chair Naito asked for further testimony. There was none.

Councilor Morissette said he wants Title 3 to be flexible, keep the goal in mind, realize the Council’s ability to solve problems, create an opportunity for people to continue to use their land, and share the burdens fairly.

4.  REVIEW PROPOSAL FOR PRODUCTIVITY ANALYSIS

Mr. Turpel reviewed the materials under agenda item four in the agenda packet. Mr. Turpel distributed a memo from himself to Chair Naito, dated March 17, 1998, concerning productivity analysis request for proposals - alternatives and recommendations. A copy of the memo and attachments is included in the meeting record. He asked the committee for direction on how to revise the Request for Proposals (RFP) for resubmission.

Councilor McCaig asked Mr. Turpel to assess why Metro only received one response to the RFP.

Mr. Turpel said he has heard different reasons. He said the Mitchell Nelson Group, Inc. indicated that it was involved in a number of different projects when the RFP came out, and did not have the time to respond. He said he also heard speculation that a number of consulting firms were busy completing Transportation/Growth Management (TGM) grants at the time.

Councilor McCaig said Mr. Turpel’s memo indicates that the RFP needs to changed, not that there was bad timing. She said she does not want to increase the budget simply due to bad timing. She asked if additional consulting firms would submit proposals if the RFP was sent back out without changes.

Mr. Turpel said that if the RFP was sent out again without revision, one or two of the interested consulting firms would not submit proposals.

Councilor Morissette said the response received from KCM, Inc. demonstrates that in order to do the quality of work requested, more work needs to be done than originally anticipated. He said KCM factored the increased work into its proposal, which increase the cost.

Mr. Turpel said KCM gave a price to study all of the urban reserves, and the RFP requested a price for Tier 1 Urban Reserves with the possibility of adding more land to the study. He said that in his conversations with the consulting team, they indicated that they could study the first tier urban reserves and stay within the RFP’s cost perimeters.

Councilor Morissette said the situation supports his position that it would cost dramatically less to develop and serve some of the urban reserves that are not in the first tier. He said the Council should make its political decisions once it has all the facts.

Councilor McCaig said until the Council has received an answer from the Land Use Board of Appeals (LUBA) on the urban reserves under appeal, she does not want to study all 18,000 acres. She said under any circumstances, she is uncomfortable going forward by merely raising the price with the vendor who responded. She said if the committee decides to raise the price and expand the scope of the work, the RFP should be resubmitted for bidding.

Councilor Morissette said he would support Councilor McCaig’s recommendation.

Councilor McLain said she agrees with Councilors McCaig and Morissette.

Chair Naito asked the committee if it wanted to leave task three, the financial analysis portion, in the RFP.

Councilor McCaig recommended that staff leave in task three, but clarify that it is less important than the other two tasks. She said task three becomes increasingly important as the scope of the work is increased. Councilor McCaig said the committee is recommending to increase the RFP from $55,000 to $100,000 and to increase the scope of study to include more than first tier urban reserves.

Councilor Morissette asked if it would be acceptable to study properties that are not under appeal. Councilor McCaig said yes, and suggested that the committee ask staff to recommend the number of acres to study.

Mr. Turpel said the committee could say that it does not want any work done on lands under appeal, and then ask consultants how many urban reserves they can review, given that fact, at a cost of no more than $100,000.

Chair Naito said the committee would like to have a ceiling on the cost. She directed Mr. Turpel to revise the RFP and resubmit it. She said the committee does not need to formally review the revised RFP before it is submitted.

Chair Naito asked for additional testimony. There was none.

5.  COUNCILOR COMMUNICATIONS

Mr. Turpel reviewed his memo to Chair Naito dated March 12, 1998, concerning Pleasant Valley Transportation/Growth Management grant. A copy of the memo is included in the meeting record.

Chair Naito asked Councilor McFarland if she would volunteer to serve on the Elected Officials Committee. Councilor McFarland said yes.

Chair Naito thanked Councilor McFarland. She said other Councilors should contact Mr. Turpel if they would like to be involved.

Councilor McCaig said she is concerned that Councilors’ involvement in the Pleasant Valley Urban Reserve Project is inappropriate. She said it is important that Metro and the Council do not become embroiled in the specifics of decisions that will ultimately come before the Council for approval.

Chair Naito asked for further Councilor Communications. There were none.

There being no further business before the committee, Chair Naito adjourned the meeting at 2:55 P.M.

Respectfully submitted,

Suzanne Myers

Council Assistant

i:\minutes\1998\grwthmgt\03178gmm.doc

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF MARCH 17, 1998

The following have been included as part of the official public record:

Oral Testifiers (testimony cards included)

Presentation on Water Quality

 Ray Jaindl

 Jim Johnson

Stream and Floodplain Protection Plan Discussion

 Doug Bollam

 Judie Hammerstad

 Mike Houck