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HomeMy WebLinkAbout2021-10-15 Gould Appeal Application 21-000937-ARECEIVED eLtT-d/_ 000?37._4 nC[ nn ?*;lt Deschutes County CDD CCIMMl",hllTY DEVE!-Gpnfi fr f'\ET APPEAL APPLICATION Jg4Q,a"t FEE: $ffi lnda --v "3gLla,aoEVERY NOTICE OF APPEAL SHALL INCLUDE: 1 . A statement describing the specific reasons for the appeal. 2. lf the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. lf the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de noyo review by the Board, stating the reasons the Board should provide the de noyo review as provided in Section 22.32.027 of Title 22. 4. lf color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staffcannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Annrrnziata Gould Phone: t54d 4Z043ZE- Mailing Address 19A45.1 W Brown Rd c i tylsta te/z i p : BSnilQB-9ZZQ3 Property Description: T ship_ Ra Sectio Tax Lot See Exhibit A. Appel la nt's Signatu re: EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANN|NG DtVtStON UPON REQUEST (THERE lS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMTT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAy FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON-THE.RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. Appellant's attorney is Jeffrey L. Kleinman, 1207 SW6th Av., Portland, OR 97204. (over1 ,/ ': .l 7 t'.lw Lafavette Avenue, Bend, Oregon 97703 I P.O Box 6005, Bend, OR 97708-6005 f (541)3Bs-6575 @ cdd@deschutes.org @ www.deschutes.orglcd Land use Application Being Appealed:2+t-z't-ooots'l-e,.tg-386-TP, 18-454-sP, 18-542-MA, Central Land and c Rev 5/18 NOTICE OF APPEAL PLEASE SEE EXHIBIT B, ATTACHED HERETO AND BY THIS REFERENCE INCORPORATED HEREIN (This page may be photocopied if additional space is needed.) I 1 7 NW Lafayetle Avenue, Bend, Oregon 97743 g ts+il 3BB o575 @ cdd@deschutes.org P.O. Box 6005. Bend, OR 97708-6005 @ wwr,rr. d esch u tes.o rglcd EXHIBIT A - PROPERTY DESCRIPTION Map Number & Tax lot Address 15-12-s000 11800 Eagle Crest Blvd. 15-12-s001 11810 Eagle Crest Blvd. 15-12-5002 11820 Eagle Crest Blvd. t5-L2-77AA*67205 Cline Falls Rd.* ts-L2-770r 677A5 Cline Falls Rd. 15-1.2-7800*67555 Cline Falls Rd.* 15-12-7801*67525 Cline Falls Rd.* L5-L2-7900*67545 Cline Falls Rd.* 15-12-8000 67400 Barr Rd TES CO M fu! f;.,$ T{ ITY D EVFLOP M E NT 1 2 APPEAL APPLICATION - BOARD OF COUNTY COMM'SS'OruERS r*,*3gtle,- EVERY NOTICE OF APPEAL SHALL INCLUDE: A statement describing the specific reasons for the appeal. lf the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. lf the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de noyo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Tille22. lf color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. ft is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 ol the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to wha,ther the appellant is eligible to file an appeal (DCC Section 22,32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print):.An rr.^r',^o.\o^..Go.^-ta\Phone: t5Y fr I ttzo 3:a f Mailing Address:n9+S SvJ R-J city/state/zip &e"a o Rd1 T4o3 EmailAddress:L 4 ^ /ao+ zu 1A 0 +eoq Land Use Application Being Appealed o .A 8-38b "rP \a-l€'-stfe hrh 3 4. fl^3 ^*Property Description: Town io Ranse Section Tax Lot Appellant's Signature Date:0 tt za-L BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR, AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL. Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each recording copy). Appellant shall submit the transcript to the planning division no later than the close of 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 | ql\ (541 ) 3BB-6575 @ cdd@deschutes.org P.O. Box 6005, Bend, OR 97708-6005 @ www.deschutes.orglcd the day five (5) days prior to the date set for the de novo hearing or, for on-the-record appeals, the date set for receipt of written records. NOTICE OF APPEAL 9u q{a ln *tt, b",* /a^d &xC.,b,:f E EXHIBIT B-STATEMENT OF REASONS FOR APPEAL OF ANNUNZIATA GOULD As a preliminury matter, appellant Annunziatu Goald hereby requests that the Board of County Commissioners review and reverse the decision of the hearings officer herein. For the reasons explained below, appellunt reqaests u de novo public hearing of this appeal before the Board. DCC 22.32.027. Appellunt participated in each of the proceedings below. This uppeal is timelyfiled, 11 days after the dute of muiling of the appeuled decision. Statement of Reasons RECORD ISSUES The hearings officer erred in denying appellant's September 13, 2A2l request to reopen the record for the limited purpose of rebuttal, and September 20, 202l request to respond to a submittal by the applicant's counsel. Under ORS I97 .763(6) attd (7), appellant was entitled to place the requested rebuttal and response in the record. This issue is addressed further below ERRORS IN DECISION ON THE MERITS A. Tentative Plan Condition 17. As the hearings officer states, The Hearings Officer appreciates the TP [Tentative Plan] Hearings Officer's and LUBA's concern about the ability of the Applicant to "source" Phase A-1 Mitigation Plan mitigation water from COID [Central Oregon Irrigation Districtl and/or BFR [Big Falls Ranch]. If the TP Hearings Officer did not have such misgivings the TP Hearings Officer would not have Page L - Statement of Reasons for Appeal (Goutd) imposed Condition 17 and LIIBA would not have remanded the decision back to the County. Decision at 7. In order to provide (or refresh) the Board on the background of this issue, we would summarize as follows In order to address key issues raised with respect to the proposed resort drawing down groundwater and impacts upon anadromous fish habitat in the Deschutes basin, the resort's Final Master Plan (FMP) includes the following conditions 10. Applicant shall provide, at the time of tentative platlsite plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase. 38. The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW1 for management of off-site mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek. In the initial, 2018 decision inthis case, Hearings Officer Olsen described the origins of the above conditions. Referring to an earlier appeal adjudication, he stated 1 Oregon Department of Fish and Wildlife Page 2 - Statement of Reasons for Appeal (Gould) There are two components to the mitigation. There is the basic replacement of consumed water which appears to have been the focus of OWRD. In her discussion of the fish mitigation plan the Hearings Officer found that the applicant was to provide 1,356 acre-feet of mitigation water. She found that the OWRD mitigation requirement adequately addresses water quantity, and presumably to some extent quality but not fully. She was concerned with the ODFW concerns about springs and water temperafures. In thatregard, she relied on how the FMP [footnote omitted] proposed to provide water, such as removal of existing wells, removing the two diversion dams and the additional requirement to provide water for Whychus Creek from the Sisters krigation District which I found adequate in my prior decision on the FMP with the modification that it be placed in stream no later than the date that groundwater pumping to serve the development commences. * * * H.O. Decision, l0 129 I 18, 26-21 LUBA described Condition 10's requirement as to "updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase" in its Order remanding the hearings officer's decision to the county The Oreson Water Resources Deoartment (OWRD) sranted the water risht upon finding that intervenor is responsible for providing 1.356 total acre-feet of mitigation water: 836 acre-feet from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch. and the remaining mitigation water [footnote omitted] The resort's consumptive use of groundwater is anticipated to impact an offsite fish-bearing stream, Whychus Creek, by reducing instream water volumes and increasing water temperatures. The mitigation plan requires intervenor to replace the water consumed by the resort with volumes and quality of water that will maintain fish habitat, especially cold water thermal refugia. The county found that the mitigation plan will result in no net loss/degradation to fish and wildlife resources. Page 3 - Statement of Reasons for Appeal (Gould) Gould v. Deschutes County,19 Or LUBA 561,573-74 (2019). (Emphasis added.) In the earlier county proceeding in this case, Ms. Gould raised a number of concerns about compliance with the conditions of approval listed above. The hearings officer recognized some of these concerns, finding that the applicant had failed to show availability of the sources of mitigation water promised in the approved Fish and Wildlife Mitigation Plan (FWMP): The June 13, ODFW letter references COID [Central Oregon Irrigation District] water and that "flows from COID during the irrigation season provide a net benefit in instream flows for the Deschutes River". It seems to focus primarily on the Big Falls Ranch, however, stating that "During the irrigation season when ODFW is most concerned about impacts to springs and flows in the Deschutes River, the mitigation water from the springs in Deep Canyon Creek exceeds the flows needed to mitigate from spring and seem impacts." The FMP also references both water sources, primarily the Big Springs Ranch and that "the remaining mitigation water is to be obtained from" COID. (Page 22 and24). It appears to me, therefore,thatboth ODFW and the Hearings Officer relied on those sources [COID water and Big Fa]ls Ranch water] in reaching their respective conclusions that mitigation was adequate. While it may be that a change to another source within the General Zone of Impact will satisfy both quality and quantity mitigation,thatis speculative on this record. It may be that the impact of the I92homes that the tentative plat would perrnit would be compensated for by other sources and not be significant enough to implicate these sources but that also is speculative. Further, if the applicant proceeds with providing water to these homes but cannot get water for the balance of Phase 'A' (meaning the Phase 'A' of the Phasing Pla") i.e.,whatMr. Dewey2 refers to as the "core facilities" then the opponents are correct that we may have a "sagebrush subdivision" that the 2 Paul Dewey, appellant's attorney at the time, has since retired. Page 4 - Statement of Reasons for Appeal (Gould) statutes, Code and FMP are intended to prevent In short, the applicant demonstrated at the FMP stage that mitigation was feasible and identified specific sources. Opponents now have raised sufficient evidence to call into question whether obtaining water from those sources remains feasible. On the other hand, demonstratingthat the applicant has rights from Big Springs Ranch [Big Falls Ranch] and COID should be straight-forward. The Big Springs Ranch rights appear to be the more important given the emphasis put on them by ODFW. COID water appears to relate more to quantity, although ODFW stressed that providing mitigation water during the inigation season is important. I find that failure to obtain the ODFW [Big Falls Ranch] and COID water referenced in the Mitigation Plan and FMP decision may constitute a substantial modification to the FMP approval. H.O. Decision, 10 129 I 18, 29 -30 . (Emphasis added.) The evidence to which the hearings officer referred included "an August 28, email from Matt Singer, general counsel for COID, stating that it is COID's position that there are no current or active agreements with Thornburgh * * x." 29, H.O. Decision, l0l29ll8, Amended LUBA Record 692 Beyond that, the hearings officer noted that: "Mr. Dewey also cites to an excerpt of a document suggestingthatBig Falls Ranch proposed and OWRD proposes to approve a transfer of surface water points of diversion to groundwater points of appropriation which Mr. Dewey asserts was to be used for mitigation by Thornburgh * * *." H.O. Decision, 10129118,29; Amended LUBA Record 182,191. (The documentation that the transfer away from Deep Canyon Creek has now actually occurred is contained in a memorandum from appellant's water attorney, Karl Anuta, filed August 23,2021. That memo also explains the Page 5' Statement of Reasons for Appeal (Gould) ramifications of that transfer. Appellant also demonstrated herein that Thornburgh has never placed its actual agreement with BFR in the record, but only memoratlda of that agreement with short time frames for expiration.) In light of Hearings Officer Olsen's findings regarding the evidence before him, he added Condition of Approval 17 to his order approving Thornburgh's application 17. Prior to issuance of building permits for the single-family dwellings, obtain site design approval for at least 50 OLU's, which approval shall demonstratethat. a) the OLUs quatifu as such and b) the Big Springs Ranch and COID water referenced in the Mitigation Plan and FMP decision have been secured- demonstrate that the proposed alternate source is acceptable to ODFW and provides the same quantitv and quality mitigation so as to not constitute a substantial modification or justify a modification to the FMP. H.O. Decision, 10129118,30,77 . (Emphasis added.) In the 2018 appeal, LUBA addressed Condition 17 as follows: The hearings officer found that the mitigation plan relies on mitigation water acquired from the COID and Big Falls Ranch. * * * Petitioner submitted a statement from COID that there are no current or active agreements between COID and the resort and a document suggesting that Big Falls Ranch proposes to transfer surface water rights that the resort had intended to acquire for mitigation water. * ''€ d€ Intervenor responded that the mitigation plan did not "mandate" COID and Big Falls Ranch water, but instead authorized mitigation water within a general zone. Id. The hearings officer rejected intervenor's argument and found that, in approving the mitigation plan as part of the FMP, "both ODFW and the Hearings Officer relied on those sources in reaching their respective conclusions that mitigation was adequate." Id. The hearings officer concluded that petitioner's evidence was "sufficient evidence to call into question whether obtaining water from those sources remains feasible," and found that a change in the source of mitigation water "may constitute a substantial modification to the Page 6 - Statement of Reasons for Appeal (Gould) FMP approval. * * * The hearings officer further found that the record does not support a conclusion that a change of source for the mitigation water would satisf,i both quantity and quality of mitigation water. Petitioner argues that TP Condition 17 impermissibly allows a modification of the mitigation plan without providing an opportunity for further public input on the issue of whether any proposed alternate source of mitigation water provides "the same quantity and quality mitigation" to satisfy the no net lossldegradation standard. * * *" We agree. *** td** *** Intervenor responds that the FMP did not require mitigation water be sourced from water provided by the COID and Big Falls Ranch and that the issue of feasibility of obtaining water from COID was settled in prior appeals. Intervenor's response misses the mark. As the hearings officer found. the mitigation plan relies on both quantitv and quality of mitigation water acquired from the COID and Big Falls Ranch and the record does not suooort a conclusion that a chanse of source for the mitisation water would satisfy both quantity and quality of mitigation water. The no net loss/degradation issue has been litigated at length and affirmed based on facts and expert evidence modeled on assumptions of water sourced from COID and Big Falls Ranch- which includes qualit), of those sources- including water temperature. and impacts on downstream fish habitat. We conclude that Condition 17 violates the right to a public hearing on whether the no net loss/degradation standard will be satisfied by mitigation from water sources not specified in the mitigation plan. Accordingly, the county may not rely on TP Condition 17 to conclude that, as conditioned, the tentative plan approval will comply with the mitigation plan and thus satisfu the no net loss/degradation standard. On remand, the county must consider whether, without TP Condition 17,the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water constitutes a substantial change to the FMP (Final Master Plan) approval, requiring a new application, Page 7 - Statement of Reasons for Appeal (Gould) modification of the application, or other further review consistent with FMP and DCC destination resort regulations.3 Gould v. Deschutes County,I9 Or LUBA 561,577-80 (2019). (Emphasis added.) Hearings Officer Olsen made it abundantly clear that, without Condition 17 , the tentative plan for Phase A-1 did not satisfy the county's 'ho net loss/ degradation standard." Thornburgh simply failed to meet its burden of proving the availability of either COID or BFR water, much less both as required, for mitigation purposes at this stage The prolonged litigation regarding the CMP and the FMP achieved a very delicate balance between the resort's consumption of groundwater and the provision of adequate cold water to mitigate for the impacts upon anadromous fish habitat which would be caused by said consumption. On the consumption side, the approval of the resort depends upon a now-challenged OWRD permit designating specific wells. The county's approval herein requires the abandonment of certain other wells. Based upon the location and depth of the wells to be operated under the OWRD permit, specific impacts upon fish habitat in Whychus Creek have been analyzed and evaluated and specific sources of cold water for mitigation in this 3Please note that LUBA did not eliminate the first portion of Condition 17 , with which Thornburgh must still comply: 17. Prior to issuance of building permits for the single-family dwellings, obtain site design approval for at least 50 OLU's, which approval shall demonstrate that: a) the OLUs qualifi, as such * * *. Page 8 - Statement of Reasons for Appeal (Gould) sub-basin of the Deschutes watershed have been identified. Thus, a change in the source of quasi-municipal supply, or a failure to supply the specific, approved mitigation water, would thoroughly disrupt the balance methodically assembled over the years of legal disputes. This is compounded by the pervasive drought conditions now prevailing year after year in Deschutes County. As the current hearings officer indicates, the applicant intends to secure the mitigation water for this first "subphase" of the resort, Phase A-1, from Big Falls Ranch. This is cold spring water from Deep Canyon Creek, which is intended to mitigate for the effect of the resort's wells drawing down groundwater to meet the resort's needs, upon anadromous fish habitatin Whychus Creek and, hence, the Deschutes itself. Those springs lie only one-half mile upstream from the Deschutes. The primary problem here is that BFR had already transferred the subject water right from surface water in Deep Canyon Creek to groundwater up on the ranch itself. As Mr. Anuta explained on Augustz3,202l * * * [T]he water rights that the Resort promised and that the County required for that mitigation have subsequently been transferred to another location. They have been moved to ground water, by the holder of those rights - Big Falls Ranch. In 2018, as part of Transfer T-12651, Big Falls Ranch requested a "Permanent Water Right Transfer" to move the surface water rights in Deep Canyon Creek to ground water. That request was granted, by OWRD Special Order dated November 21,2018. That fiansfer means that the cold spring surface water flows in Deep Canyon Creek - the flows specifically required to offset the impacts of the Page 9 - Statement of Reasons for Appeal (Gould) Resort G-17036 Permit - are no longer currently available as potential instream flow mitigation for the Resort. In theory, up until or on November 2A,2023, a request to have Transfer T-12651 "unwound" - in other words the water moved back to surface water - could be submitted. That date is 5 years from the date the transfer was approved. The transfer Order on T-12651 recognized (as is normal for such transfers in the Deschutes Basin) that if an application to transfer the right back to surface water was submitted within 5 years from date of the transfer approval, such an application would normally be approved. How long such an approvalthatwould take [to] complete, is anyone's guess. Regardless, there is no evidence that such an application has to date even been submitted. There is certainly no approval that would allow the use of the Deep Canyon Creek water in the manner required under the Mitigation Agreement. To the contrary, rather than a request to transfer the water back, Big Falls Ranch has instead submitted a Claim Of Beneficial Use (COBU) at the new groundwater location. That COBU is an effort to try to turn the T-12651transfer Order into a new Certificated right, at that new groundwater location. That COBU was submitted on 9-30-24. (Emphasis in original; footnotes omitted. In the original letter on file, the footnotes direct the reader to specific supporting exhibits mentioned above.) We would reemphasize here the following dates: . November 21,2018. OWRD approves the application of Big Falls Ranch to move the surface water rights in Deep Canyon Creek which are required to be perrnanently protected instream, to groundwater instead. When moved to groundwater (drawn from wells), the water in question is no longer available instream for fish habitat mitigation purposes. . September 30, 2020. Big Falls Ranch submits its Claim of Beneficial Use at the new location at which it draws groundwater, in order to turn OWRD's Order approving the transfer into a new certificated right atthat location. If OWRD determines that the permit conditions have been met, a water right certificate will be issued to BFR; this will be the "certificated right." Page 10 - Statement of Reasons for Appeal (Gould) Both of those events occurred after Hearings Officer Olsen issued hrs decision on October 29,z}l8,holding that Thornburgh had not met its burden of proving the availability of the required cold mitigation water in Deep Canyon Creek. As we have said, the Thornburgh's case has only become weaker over the succeeding years. We turn now to the actual language of the underlying agreement with ODFW which allowed the master plan for the resort to be approved. This is the "Thornburgh Resort Fish and Wildlife Mitigation Plan Addendum Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat," dated April2l, 2008 ("FWMP"). It was actually prepared by Thornburgh's engineer, David Newton. A copy with the most relevant language highlighted is Exhibit A to appellant's First Open Record Memorandum dated August 31,2A21. We reproduce the relevant language here: The mitigation to be provided in connection with the Thornburgh water right will serve as a major component of the mitigation measures for this Addendum. As described below, coupled with additional measures recommended by ODFW, the flow replacement plan developed by Thornburgh will address both flow and temperature concerns and is expected to fully mitigate for any negative impacts so that there is no net loss of habitat quantiry or quality for fishery resources. The measures will also provide additional benefits to habitat resources. Exhibit A at I Page 1L - Statement of Reasons for Appeal (Gould) Big Falls Ranch Water Rights The Resort also has entered into an agreement to purchase existing surface water rights from Big Falls Ranch located near Lower Bridge, within the Gener aI Zone of knpact. The 464.9 acres of irrigation water rights are expected to generate a total of 836.82 AF per year of mitigation water when transferred to instream water rights. Thornburgh is currently working with Big Falls Ranch on transfer applications for the first 175 acres of water rights to be acquired under the agreement and transferred to instream use. The instream water right would protect flow from a point near Lower Bridge downstream to Lake Billy Chinook. This initial transfer is expected to result in 315 AF of mitigation water. The first 175 acres of Big Falls Ranch water rights that are proposed for transfer are located in Sections 8, 9 and 17 , Township 14 South, Range I2East, as shown on Figure 3, amap prepared for the water right transfer application. These water rights are designated as "FROM" acres on Figure 3 The source of water for these rights (and the total of 464.9 acres of irrigation) is Deep Canyon Creek. The authorizedpoint of water diversion from the creek is shown on Figure 3. Deep Canyon Creek is a tributary of the Deschutes River. The confluence between the creek and the Deschutes River is at about River Mile 131. Deep Canyon Creek flows are derived from springs in the canyon. The spring discharge point is shown on the USES Cline Falls, Oregon. Quadrangle map (as shown on Figure 3) ata location about 0.56 miles upstream from the creek's confluence with the Deschutes River. Over time, erosional down-cutting has incised the Deep Canyon Creek channel into ground water bearing geologic strata, resulting in the ground water discharge that creates the creek flow. Although the USES quadrangle map depicts a single spring, ground water discharge actually occurs at other points along the creek channel. The point of diversion for the Big Falls water rights is located at the confluence of the creek and the Deschutes River as shown on Figure 3. When the initial 175 acres of irrigation water rights are transferred to instream flow for Phase A mitigation, up ta 2.07 cubic feet per second of flow that would otherwise be diverted from the creek for inigation will remain in the creek as an instream water right. This additional flow will be Page 12 - Statement of Reasons for Appeal (Gould) protected instream from the authorized diversion point on the creek to the Deschutes River near River Mile 132.8, and downstream in the Deschutes River to Lake Billy Chinook near River Mile 120, a distance of nearly 13 miles. Id. at 5-6 Id. at7 Td Implementation of Thornburgh's water right mitigation plan would result in a total of 1,356 AF annual mitigation at full build-out. Approximately 836.82 AF per year and 5.5 cfs of flow during the irrigation season would come from Deep Canyon Creek as a result of transferring the Big Falls Ranch water rights to instream flow rights. ''€ * * The Big Falls mitigation water offers the additional temperature benefit of providing relatively cool waters from Deep Canyon Creek. IV. Fish Habitat Potentially Affected by Ground Water Use During the consultation process, ODFW identified two specific concerns with respect to potential impacts of ground water pumping on fish habitat: First, the potential for flow reduction due to hydraulic connection that could impact flows necessary for fish and wildlife resources in the Deschutes River system; and second, the potential for an increase in water temperafure as a result of flow reductions from ground water pumping. Six species of fish were identified that could potentially be impacted: Redband Trout, Bull Trout, Brown Trout, Mountain Whitefish, Summer Steelhead and Spring Chinook. The general distribution of these fish species is shown on Figure 6. In early coffespondence on this issue, ODFW identified concerns about impacts on cold water springs and seeps in the Whychus Creek sub-basin as a result of Thornburgh ground water use, and indicated that the potentially affected resources would be classified as "Habitat Category I" under the ODFW Fish and Wildlife Habitat Mitigation Policy("ODFW Mitigation Policy", OAR Chapter 635, Division 414.) (Letter from Glen fudt to Thornburgh, dated January 31, 2008.) Under the ODFW Mitigation Page 1"3 - Statement of Reasons for Appeal (Gould) Policy, Habitat Category I means the affected habitat is irreplaceable. In response to the letter, Thornburgh provided additional information to ODFW documenting the OWRD findings regarding the location of impact from Thornburgh wells in the Main Stem Deschutes River. Additionally, ODFW met with staff from OWRD and the Department of Environmental Quality concerning the potential Thornburgh impacts. As a result of this process and further internal review, ODFW revised its preliminary determination regarding the type of habitat potentially affected by the Resort, concluding the habitat would be classified as Habitat Category 2,totHabitat Category 1. This conclusion was based on ODFW's determination that temperature impacts to stream flow, if present, can be mitigated with appropriate actions. As used in the ODFW Mitigation Policy, "Habitat Category 2" describes essential habitat for a fish or wildlife species. Mitigation goals for this category of habitat are no net loss of either habitat quantity or quality and to provide anetbenefit of habitat quantity or quality. OAR 63s-414-0A2sQ). Based on input from ODFW during the consultation process, Thornburgh has identified the following mitigation and enhancement measures designed to ensure no net loss of habitat quantity or quality and to provide a net benefit for fish habitat. The measures reflect findings by OWRD that the Thornburgh project is expected to affect flow in the Main Stem Deschutes River. * * {< V. Mitigation and Enhancement Measures The proposed mitigation measures identified in consultation with ODFW are designed to ensure no net loss of habitat quantity or quality and net benefits to the resource: (A) compliance with OWRD mitigation requirements; (B) inclusion of the Big Falls Ranch water rights as part of the OWRD mitigation progrirm to provide additional cold water benefits; O removal of an existing instream irrigation pond in connection with the transfer of Big Falls water rights * 'r * Id. at8 Page L4 - Statement of Reasons for Appeal (Gould) B. Specific Mitigation from Big Falls Ranch Thornburgh will fully exercise the option for purchasing 464.9 acres of water rights under its existing option agreement with Big Falls Ranch, Inc. in fulfilling its mitigation obligation under the OWRD water right. By making this commitment, Thornburgh ensures that nearly two-thirds of its total mitigation water (expected total 836.82 AF per year) will come from a source that contributes cold spring-fed water to the Deschutes River above the Thornburgh location of impact. By retiring an existing irrigation water right, this measure will also result in restoration of 5.5 cfs of cold surface water flow to the Deschutes River from Deep Canyon Creek during the inigation season. C. Elimination of Existing lrrigation Pond In connection with the instream transfer of the Big Falls Ranch irrigation water right rights, Thornburgh will work with the landowner to eliminate the existing instream impoundment used as part of the irrigation system. This is expected to provide a temperattre benefit by eliminating temperature increases due to ponding effects. Approximately 836.82 AF per year of the mitigation water will come from Deep Canyon Creek as a result of transferring the Big Falls Ranch water rights to instream flow rights. The elimination of the existing diversion of Deep Canyon Creek with water originating from ground water springs, is expected to provide additional flow and temperature control benefits to the Deschutes River during the critical irrigation season. Removal of the Deep Canyon Creek impoundment will further benefit water temperatures in the Deschutes River by eliminating the pond where water temperatures would increase during wann periods. {€ * * VU. CONCLUSION DCC 18.113.070.D requires that any negative impact on fish and wildlife resources be completely mitigated so that there is no net loss or net degradation of the resource. This Addendum to the Thornburgh Wildlife Mitigation Plan addresses potential impacts to fishery resources as a result of ground water pumping and identif,es specific mitigation measures. The plan Id. at9 Page 15 - Statement of Reasons for Appeal (Gould) was developed in consultation with ODFW to address two specific areas of concern regarding the potential for negative impacts. the potential for a loss of habitat due to reduced surface water flows in the area of impact and the potential for loss of habitat due to increased temperature from reduced stream flow or loss of inflow from springs. The potential for loss of habitat due to reduced surface water flows was quantified in connection with the OWRD review of Thornburgh's application for awater right. Under OWRD rules, Thornburgh will fully mitigate for consumptive use associated with the Resort development. Consumptive use represents the amount of water not otherwise returned to the Deschutes River system after initial diversion. Although the OWRD program is necessarily based on estimates of impact and modeling, the program is specifically intended to replace stream flows lost due to ground water use. As an added measure, Thornburgh agrees that it will not rely on projects involving canal lining or piping to supply mitigation water and will provide all mitigation through the conversion of existing irrigation water rights to protected instream flow. By committing to fully fillize the Big Falls Ranch water rights as part of its OWRD mitigation requirement, Thornburgh will provide additional benefits to stream flow and temperature by restoring cold water inflow from the Deep Canyon Spring area. This project will also include the elimination of an instream irrigation pond that currently contributes to temperature increases. In addition to complying with the OWRD mitigation requirements, Thornburgh will abandon three existing domestic wells and terminate exempt ground water uses on the property. Although these uses represent a relatively small annual volume of water, they provide additional mitigation in the form of ground water offset, beyond the quantity required by OWRD. This action will result in restoration of about 3.65 acre-feet per of ground water per year that has historically been pumped from the Thornburgh location. * * * Collectively, the mitigation and enhancement measures demonstrate that any potential negative impacts to fish habitat resources as a result of the Page 16 - Statement of Reasons for Appeal (Gould) Thornburgh resort will be completely mitigated so there is no net loss or net degradation of the resource as required by the County code. Id. atLT-12 After the adoption of the above addendum, ODFW became concerned that the removal of one impoundment on Deep Canyon Creek would be insufficient to provide the required flow of cold water. Accordingly, by letter from Thornburgh's attorney dated August 11, 2008, Thornburgh agreed to an additional condition requiring removal of a second impoundment, not controlled by BFR. That letter is attached to my memorandum of August 31,2021, as Exhibit B and states in material part: Following Thornburgh's submission of its Addendum Relating to Ground Water Withdrawals in April, 20A8 ('Addendum"), ODFW requested modification of the plan to include removal of two existing dams/ impoundment structures on Deep Canyon Creek. The April Addendum described plans for removing only one dam in connection with acquisition of the water rights from Big Falls Ranch for mitigation purposes. In reviewing and commenting on the Addendum, ODFW requested that Thornburgh seek authorizatron to remove a second dam located just upstream of the Big Falls Ranch dam, on property owned by other parties. During the public hearing process on Thornburgh's Final Master Plan, Thornburgh indicated its willingness to remove the second dam as part of its Fish and Wildlife Mitigation Plan. This letter confirms that intention and so modifies the Addendum. Thornburgh is also submitting into the hearing record documentation of its agreement with the owners of the second dam to authorize the dam removal. Exhibit B at 1 Page 17 - Statement of Reasons for Appeal (Gould) With respect to the impoundments in Deep Canyon Creek, the evidence in the record shows that today, 13 years later, neither has been removed. Thornburgh talks about removing the sluice gate in the lower impoundment, but even that drops the level of the pond in question only 40-50 percent. The remainder of the impoundment keeps in place a pond which would still allow overheating of the creek's "cold" water. In the current proceeding on remand from LUBA, the hearings officer conducted a public hearing on August24,202l. Thereafter, the written record was held open until August 3l for further submittals by the parties, to be followed by written rebuttal on September 7 and Thornburgh's written final argument on September 14. Itwas not until Thornburgh filed its rebuttal on September 7, when it was too late for anyone to respond, that it produced a choice bit of evidence upon which the hearings officer chose to rely. This was addressed in appellant's letter to the hearings officer on September 13, 2021: On behalf of Nunzie Gould, I hereby request and move that the record herein be reopened for the very limited purpose of allowing filing of the attached response from Karl Anuta to two documents submitted by Ms. Fancher at the close of the rebuttal period on September 7,202I. The documents in question are "requests for assignment" filed with OWRD on August 24,2021, the date of your evidentiary hearing in this case. They appear as Documents I and2 at pages 17 through 23 of Ms. Fancher's rebuttal documents, which in turn appear as the first item on page 69 of the ACCELA site for this proceeding. Page L8 - Statement of Reasons for Appeal (Gould) ORS 197 .763(6)(c) and (7) entitle Ms. Gould to a response to this new evidence. We recognize the countervailing principle that "the record must close at some point." However, these documents were available to Thornburgh and could have been filed on the original hearing date or at any time up to and including the filing of Thornburgh's initial open record submittal on August 31. Had this been done, there would have been an opportunity for us to respond. The above statute, due process, and fundamental fairness require that the short attached memo be accepted for the record. As noted at the beginning of this Statement of Reasons, the hearings officer effoneously rejected this request to file a response. Nonetheless, in his decision, he relied upon the documents to which that response was directed: The Hearings Officer finds that Applicant provided, on multiple occasions, documents in the record titled "Request for Assignment." (i.e ., Applicant's Rebuttal, 91712021, Document 1). The Hearings Officer finds that the "Request for Assignment" documents have the effect of transfeningl assigning all of Big Falls Ranch Co. interests in water right files T-12651 (Cert. SS027) andT-12651 (Cert.7637l) to Pinnacle Utilities, LLC (Kameron Delashmuff, Member). * * * Decision at 8. The record does not support the hearings officer's finding that the documents in question were submitted on multiple occasions, much less prior to the filing of the September 7 rebuttal. The hearings officer tolerated Thornburgh's sandbagging, cut off appellant's right to a response; and relied upon the fruits of this procedure. This was error for the reasons stated above, and we ask this Board to conduct this appeal de novo so that Mr. Anuta's letter of September 13 can be considered by the Board and the hearings officer's error cured. The following is Page 1"9 - Statement of Reasons for Appeal (Gould) offered in support of appellant's request for limite d de novo review under DCC 22.32.027(BX2) This code provision provides as follows; we rely upon the underscored language 2. The Board may grant an appellant's request for a de novo review at its discretion after consideration of the following factors: a. Whether hearing the application de novo could cause the 150-day time limit to be exceeded; and b. If the magnetic tape of the hearing below, or a portion thereof, is unavailable due to a malfunctioning of the recording device during that hearing, whether review on the record would be hampered by the absence of a transcript of all or a portion of the hearing below; or c. Whether the substantial rights of the parties would be significantly prejudiced without de novo review and it does not appear that the request is necessitated by failure of the appellant to present evidence that was available at the time of the previous review; or d. Whether in its sole judgment a de novo hearing is necessary to fully and properllr evaluate a significant policy issue relevant to the proposed land use action. My letter and Mr. Anuta's letter appear together as the last item on page 70 of the ACCELA site for this case. We will summarize the contents of Mr. Anuta's letter for the purpose of supporting appellant's request for de novo review. Please bear in mind that this is not yet evidence and cannot be relied upon unless you decide to receive this letter in evidence. Mr. Anuta explained in detail why neither of the assignments in question has any effect upon the issues before the hearings officer, as they do not actually or Page 20 - Statement of Reasons for Appeal (Gould) legally transfer the Deep Canyon Creek surface water rights back from the current groundwater Points of Appropriation to the prior surface water Points of Diversion Instead, Thornburgh received an ownership interest providing the option to eventually ask OWRD to approve a transfer back to surface water. There is no such request and no such transfer Mr. Anuta also explained that Big Falls Ranch can thus continue to legally pump the Deep Canyon Creek water from the ground regardless of the assignments. No water is currently available for mitigation, because the assignments do not transfer the surface irrigation rights in the two assigned certificates into a permanently protected instream use as required by the agreement for mitigation with ODFW. Absent that, any water that does exist in Deep Canyon Creek on the surface is simply available for the next appropriator once that water reaches the Deschutes. (The April 21,2A08 Addendum between Thornburgh and ODFW requires that the water proposed for fish habitat mitigation "must be in the form of legally protected water for instream use." In other words, it must be a pefinanent instream water right, not just a promise not to use the Deep Canyon Creek surface rights for irrigation.) The assigned certificates only allow the use of surface water for irrigation of certain acreage on the ranch. Neither certificate allows the use of the water instream in Deep Canyon Creek. Page 2L - Statement of Reasons for Appeal (Gould) The email string between the applicant and OWRD submitted by the applicant's counsel (Document#4 of Ms. Fancher's 9l7l2l rebuttal packet) shows that the applicant is aware that it could potentially start that first step of the transfer-back process. However, there is nothing in the record showing that this separate process has been initiated. Unless the transfer reversal is requested and approved, BFR can legally continue pumping the Deep Canyon Creek water from groundwater as it still does (End of Reference to Contents of Mr. Anuta's Letter) Thus, as you can see, (l) Ms. Gould's substantial rights would be significantly prejudiced without de novo review, at least with respect to Thornburgh's late-submitted evidence, and (2) this request is not necessitated by her failure to present evidence that was available at the time the hearings officer deemed the record closed. DCC 22.32.021(BX2)O. Regardless, this Board should exercise its judgment to find that a de novo hearing is necessary to fully and properly evaluate a significant policy issue relevant to the proposed action herein DCC 22.32.027(BX2Xd) We would further direct the Board's attention to the September 7,2021 memorandum of appellant's Certified Water Rights Examiner, John Lambie of E- PUR, LLC. Mr. Lambie explains in great detail how the required cold mitigation water in Deep Canyon Creek is no longer available to Thornburgh in any event Page 22 - St*ement of Reasons for Appeal (Gould) This letter appears as the fourth item on page 68 of the ACCELA site and is part of the record herein. In particular, Mr. Lambie states that BFR's pumping of groundwater for irrigation has effectively de-watered the springs needed to provide the required cold surface water in the creek. At pages 8 through 10 of the decision, the hearings officer errs in his discussion of the applicable law and in applying the law to the facts in this case The hearings officer relies heavily upon the "LUBA Golf Course Decision." However, it is anticipated that the decision in question will be the subject of a petition for review in the Supreme Court of Oregon. As we have discussed above, in this case,LUBA remanded in part for the county to "consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/ degradation standard * * *." As we have set out in detail, if Condition 17 is eliminated as the hearings officer decided it would be, the tentative plan in no way satisfies that standard. This brings us to a discussion of the fundamental nature of conditions of approval. Under Meyerv. City of Portland,6T OrApp 274,678P2d741,rev den,297 Or 82, 679P2d1367 (1984) and Rhyne v. Multnomah County,Z3 OrLUBA4A2 (L992), as long as a local government finds compliance or feasibility of complionce with applicable criteria, it is appropriate to impose conditions of approval to ensure that those criteria are met. Thus, a determination of feasibility-even under the Page 23 - Statement of Reasons for Appeal (Gould) misplaced'hot legally precluded as a matter of law" standard relied upon by the hemings officer-does not enable the deletion of conditions. Rather, it allows their imposition as a means of obtaining compliance with approval standards. The imposition of conditions in no way substitutes for compliance with them. Actual compliance must be demonstrated at the time required for it. The criteria relating to the permanent placement instream of BFR's water rights in Deep Canyon Creek have not been met at this time. Accordingly, in order to fulfill Thornburgh's request to remove Hearings Officer Olsen's TP Condition l7 as to mitigation water, this Hearings Officer would have to: (1) Determine based on the record that such compliance at some point in the future is feasible; and (2) Impose a condition conditioning the removal of Condition 17 and the applicant's authority to proceed with the development activity described in Condition 17, upon a future showing by the applicant that BFR has transferred its water right back to a surface water right; that said right has been placed and protected permanently instream in Deep Canyon Creek and that the remaining mitigation provisions of the FWMP have been met. In other words, the development which creates the need for mitigation must not proceed without the reallife mitigation actually in place. Otherwise all of us, including ODFW, have Page 24 - Statement of Reasons for Appeal (Gould) been engaged in an idle exercise, and the anadromous fish resource will be the loser Alternatively, Tentative Plan Condition 17 must remain in effect as initially imposed herein. It was imposed for good reasons, and those reasons have only become more compelling over time. We would add that (1) the question of "feasibility" is a legal question not resolved by Webster's, and (2) the hearings officer's gratuitous finding of feasibility as to FMP Condition l0 is just that-gratuitous-and is also simply wrong. It must be stricken. For the many reasons set out above, the hearings officer's findings and conclusions regarding Condition 17 appearing on page 10 of the decrsron are m error. This is also true of his findings regarding the no net loss/degradation standard as to fish and wildlife habitat, appearing at pages 10-11. Condition 17 in part requires that the applicant "[p]rior to iszuance single-famil). dwellings, obtain site design approval for at least 50 OLU's, which approval shall demonstrate that. a) the OLUs qualify as such and b) the Big Springs Ranch li.e. BigFalls Ranchl and COID water referenced in the Mitigation Plan and FMP decision have been secured {c {< *." (E*phasis added.) Neither source has been "secured" under any definition of that word. Condition 17 addresses the last stage in land use review for the OLU's. Does the resort's Final Page 25 - Statement of Reasons for Appeal (Gould) Master Plan allow actual water-consuming development to proceed without the required mitigation measures actually in place? It does not. This Board should preserve Condition 17, or substitute an effective alternative condition. B. Other Issues Addressed in the Decision. At pages 11 through 15, the hearings officer touches upon several other issues which arose during this remand process. The decision is in error as to many of these, as explained below using the hearings officer's enumeration of those lSSUES 1. Lot of Record. The hearings officer foundthat "COLW's 'lot of record' argument is outside the scope of review in this remand proceeding." This is incorrect. As COLW pointed out in its August3I,z}zl letter, at the end of July two parcels were conveyed out of one of the existing lots by deed without partitioning or any other required process. The three new EFU parcels on the area formerly known as Tax Lot 7801 do not meet the county's definition of lots of record, and two of them are not owned by the applicant. DCC 18.04.030. Under DCC l7 .04.02, "[n]o person may subdivide or partition land within the County except in accordance with ORS 92 andthe provisions of DCC Title 17." Under ORS 92.012, "[n]o land may be subdivided or partitioned except in accordance with ORS 92.010 to 92.192." Page 26 - Statement of Reasons for Appeal (Gould) The county is obligated to verifi, lot of record status for EFU lands prior to the issuance of any land use petmit. DCC 22.24.04A. The requested land use permits are still before the county on remand. The county lacks authority under DCC 22.24.040 to issue a land use pennit for any parcel of EFU land that is not a lot of record at the time the permit is issued. The county further lacks authority under DCC 22.20.15(A) to make any land use decision for a property that is in violation of applicable land use regulations. In a sense, this issue is not only within the scope of review, but circumscribes it 2. Condition 17. LUBA did not state that Condition 17 was inherently invalid. It simply required a process providing for public participation This proceeding is part and parcel of that process. The remaining discussion of Condition 17 set out on page 1l is in error for all the reasons set out above with respect to that condition. 3. Streamflow in Deep Canyon Creek is Non-Existent or Inadequate. This issue is highly relevant to the ability of Thornburgh to comply with FMP Conditions 10 and 38. It should not be brushed off here. Water rights, should one actually possess them, are of no use if the water is not there 4. Adequacy of Quantity of Mitigation Water. It is unclear which "quantity" issue the hearings officer is responding to here. Condition 17 shows Page 27 - Statement of Reasons for Appeal (Gould) that Hearings Officer Olsen was not satisfied on this point. This is not an improper collateral attack and is within the scope of this remand proceeding 5. Change of Point of Appropriation. This issue is directly relevant to the availability of the required mitigation water. In this proceeding, the water in question is cold springwater in Deep Canyon Creek, which Big Falls Ranch still controls and which is still a groundwater right on ranchland, not a surface water right placed permanently instream in the creek The hearings officer makes an alternative finding that the applicant's discussion of this issue in its final argument is correct. This is a combined issue off fact and law, and Mr. Anuta's analysis is the correct one. For the reasons explained by Mr. Anuta, Thornburgh's is not 6. Backup Water Rights Application is a "new source of mitigation water." If the applicant will be drawing other or additional groundwater than approved in the FMP, then the effect upon anadromous fish habitat will differ. This is a complex issue which Thornburgh failed to address 7. Depletion of Flow of Deep Canyon Creek. This was fully demonstrated by Mr. Lambie. If the flow of Deep Canyon Creek's springs has been depleted or the springs have become non-existent, there is no mitigation water. This is well within the scope of this proceeding Page 28 - Statement of Reasons for Appeal (Gould) 8. FMP Condition 10. Compliance with FMP ConditionlO is on its face to be proven "at the time of tentative plat/site plan review for each individual phase of the resort development." The relevant facts change (and have changed) as the development process has proceeded in fits and starts. LUBA upheld the hearings officer's decision as to Condition 10 in the Tentative Plan case "based on the record before him." 79 Or at 581. Different facts on different records may result in different outcomes. Accordingly, the doctrine of "Iaw of the case" does not control such outcomes. Similarly, while the "details of the mitigation plan are established by the FMP," compliance with the FMP and FMP Condition 38 requires actual compliance-placing the requisite cold mitigation water instream in Deep Canyon Creek before drawing any groundwater for the development. The hearings officer erred to the extent that he adopted Thornburgh's arguments to the contrary On the one hand, the hearings officer stated: The Hearings Officer finds that the LUBA Remand Directives did not require the Hearings Officer make specific findings related to Condition 10. The Hearings Officer finds that any argument specifically requesting the Hearings Officer, in this remand decision, to consider whether or not Condition l0 is met by Applicant's Phase A-l application is a collateral attack on the TP Hearings Officer's decision and LUBA's Remand Decision Decision at 14 Page 29 - Statement of Reasons for Appeal (Goutd) We respectfully disagree to the extent that TP Condition 17 implicates FMP Condition 10. Regardless though, it was error to alternatively buy off on a panoply of arguments by the applicant The Hearings Officer finds Applicant's statements and arguments, as quoted above, are persuasive. The Hearings Officer adopts Applicant's quoted statements and arguments as additional findings for this section. Id. For the reasons we have explained above, the statements and arguments in question are incorrect. It was effor for the hearings officer to adopt them 10. Expired BFR Water Rights. Again, under FMP Condition 10, the applicant is required to make its proof as each phase of the development is proposed. The applicant's new applications for transfers of water rights for quasi- municipal (consumptive) use reflect an effort to substitute for the original OWRD water right required by Condition 10. 11. Resort has drilled new wells and applied for new water rights permits. As we have addressed on the record, new wells, failure to close wells the FMP requires to be closed, and neddifferent water rights would all create new and different needs for mitigation. The hearings officer erred in finding otherwise. 13. Applicant is using wells that were required to be "abandoned." Please see the preceding paragraph. Appellant's argument was within the scope of this remand proceeding Page 30 - Statement of Reasons for Appeal (Goutd) 14. Prolonged Drought/Climate Change. This issue is actually within the scope of this proceeding to the extent that Thornburgh cannot prove up its original source of quasi-municipal water and, particularly, whether it has the requisite cold water in Deep Canyon Creek. As discussed at length in Mr. Lambie's memorandum, the latter water is no longer available 15. Overnight Lodging Units. The hearings officer's decision misapprehends LUBA's remand decision. At least 50 OLUs are part of Phase A-1 Mitigation water is required for every consumptive use in Phase A-1. 16. FMP 38. The hearings officer misapprehends Condition 38 LUBA did not grantThornburglt carte blanche to violate the FMP's mitigation requirements. Thornburgh is violating those herein 17. FMP Condition 1". As we have explained, Thornburgh is in the process of making substantial changes to the approved FMP, especially as to water sourcing and its relationship to mitigation needs. The hearings officer erred in holding to the contrary 18. Purchase of Water Rights from Lebeau and/or Tree Farm. To the extent that the applicant has applied to OWRD to obtain new or different water for consumptive use, there is an inextricable link to the extent and location of mitigation for fish and wildlife that will be required as a result. The hearings officer erred in failing to recognize this connection Page 31 - Statement of Reasons for Appeal (Gould) CONCLUSION AND DECISION For all the reasons we have set out with respect to the findings upon which the hearings officer's Conclusions and Decision rely, the hearings officer erred in drawing his Conclusions and making the resulting Decision. The Decision should be reversed. Condition 17 should be retained. (After all, what is Thornburgh afraid of?) Alternatively, a different but adequate condition should be adopted instead. Page 32 - Statement of Reasons for Appeal (Gould)