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Home My WebLink About2021-08-23 J. Kleinman - Email re Public Comment, K Anuta - Exhibit 10 &111 Chenelle Hale From:Jeffrey L. Kleinman <kleinmanjl@aol.com> Sent:Monday, August 23, 2021 3:53 PM To:William Groves Subject:247-21-000731-A, 18-386-TP, 18-454-SP, 18-542-MA LUBA No. 2018-140 Court of Appeals A171603 (Central Land and Cattle Co.) Attachments:Anuta Ex. #10 - DESC_62797 Well Log.pdf; Anuta Ex. #11 - 7-1-21 Temp Trans. Ltr to OWRD - with attachments.pdf [EXTERNAL EMAIL] Karl Anuta Exhibits 10 and 11 WELL I.D. LABEL# L START CARD # Owner Well I.D.First Name Address Zip (1) LAND OWNER New Well Deepening Abandonment(complete 5a) Conversion (3) DRILL METHOD Rotary Air Rotary Mud Cable Auger Cable Mud OtherReverse Rotary (4) PROPOSED USE Domestic Community Industrial/ Commericial Irrigation Livestock Dewatering StateCity STATE OF OREGON WATER SUPPLY WELL REPORT(as required by ORS 537.765 & OAR 690-205-0210) Thermal Injection Other (5) BORE HOLE CONSTRUCTION Depth of Completed Well ft. Explosives used: Yes Type Amount SEALMaterialFrom To Amt Other Backfill placed from ft. to ft. Material Filter pack from ft. to ft. Material BORE HOLE (Attach copy) Dia From To Special Standard (6) CASING/LINER Dia Shoe Inside Outside Location of shoe(s) From To Gauge Stl Plstc Wld ThrdCasing Liner (7) PERFORATIONS/SCREENSMethod Type Material Scrn/slotwidthToFrom # of slots Tele/ pipe size Casing/ Liner Dia (8) WELL TESTS: Minimum testing time is 1 hour Yield gal/min Drawdown Drill stem/Pump depth Duration (hr) Temperature °F Lab analysis Water quality concerns? Yes From Yes (describe below)To Description (9) LOCATION OF WELL (legal description) Tax Lot Lot Twp Range E/W WM Sec 1/4 1/4 Lat °'" or DMS or DD Long °'" or DMS or DD County N/S of the (10) STATIC WATER LEVEL WATER BEARING ZONES From To Est Flow SWL(psi)SWL Date (11) WELL LOG Ground Elevation Material To CompletedDate Started (unbonded) Water Well Constructor Certification I certify that the work I performed on the construction, deepening, alteration, orabandonment of this well is in compliance with Oregon water supply wellconstruction standards. Materials used and information reported above are true tothe best of my knowledge and belief. License Number Date Signed (bonded) Water Well Constructor Certification ORIGINAL - WATER RESOURCES DEPARTMENTTHIS REPORT MUST BE SUBMITTED TO THE WATER RESOURCES DEPARTMENT WITHIN 30 DAYS OF COMPLETION OF WORK Depth water was first found Temp casing From To ScreenDia Other Tax Map Number I accept responsibility for the construction, deepening, alteration, or abandonmentwork performed on this well during the construction dates reported above. All work performed during this time is in compliance with Oregon water supply wellconstruction standards. This report is true to the best of my knowledge and belief. License Number Date Signed Existing Well / Pre-Alteration Completed Well From Company Last Name E D C B AMethodHow was seal placed: Perf/ Screen +Date SWL(psi) By Amount Units sacks/lbs Slotlength Perforations Screens SWL(ft)+SWL(ft)+Size Contact Info (optional) Flowing Artesian? (2a) PRE-ALTERATION Alteration (complete 2a & 10)(2) TYPE OF WORK To sacks/lbsAmtFromMaterial (5a) ABANDONMENT USING UNHYDRATED BENTONITE Proposed Amount From+ Dia TDS amount Casing: Seal: ORIGINAL LOG # Actual Amount + Yes Street address of well Nearest address Pump Bailer Air Flowing Artesian Dry Hole? Form Version: ThrdWldPlstcStlGaugeTo Calculated Calculated Page 1 of 2 142145 1052865 KAMERON DELASHMUTT CENTRAL LAND AND CATTLE LLC 2447 NE CANYON DRIVEREDMOND OR 97756 TEST HOLE 715.00 52 530.00 5207/19/2021 7/6/2021 7/19/2021 1720 7/24/2021 62797DESC 7/24/2021 JACK ABBAS (E-filed) JACK ABBAS 145 ppm 8 2 655 .250 135 50 60 122 148 159 248 300 435 635657 715 730 35 50 60 122 148 159 248 300 435635 657 715 01SANDY PUMICEHARD GRAY LAVA BROWN SANDSTONE BROKEN LAVA MILD LAVA SANDSTONE CONGLOMERATE BROWN LAVA BROWN SANDSTONE BROKEN LAVA BLACK SAND AND GRAVELS W/B BR SS CONGLOM W/SOFT SPOTS W/B BROWN SANDSTONE CONGLOMERATE W/B MILD FRACTURED BROWN LAVA W/B FINE BALCK SAND POURED DRY DESCHUTES 15.00 S 12.00 E 29 NW SE 7900 67525 SW CLINE FALLS HWY PARCEL 2 300 700 1 7/19/2021 530 730 300 520 12 0 410 9.5 410 655 7306558 Bentonite Chips 0 150 96 P 85.22 Cement 150 370 88 S 62 Anuta Memo Ex. #10 - Page 1 of 2 WATER SUPPLY WELL REPORT -continuation page (6) CASING/LINER (7) PERFORATIONS/SCREENS (8) WELL TESTS: Minimum testing time is 1 hour (10) STATIC WATER LEVEL ThrdWldPlstcStlGaugeToFrom+ DiaCasing Liner Material ToFrom Comments/Remarks BORE HOLEDiaFromTo Water Quality Concerns Yield gal/min Drawdown Drill stem/Pump depth Duration (hr) SEAL Material From To Amt sacks/lbs From To Description Amount Units FILTER PACKFromToMaterial Size SWL(ft)+SWL(psi)Est FlowToFromSWL Date (11) WELL LOG (5) BORE HOLE CONSTRUCTION (2a) PRE-ALTERATION Perf/Screen Casing/Liner ScreenDia From To Scrn/slot width Slot length # ofslots Tele/pipe size From+ Dia ThrdWldPlstcStlGaugeTo WELL I.D. LABEL# L START CARD # ORIGINAL LOG # To sacks/lbsAmtFromMaterial Calculated Calculated Calculated Calculated FILLED BOTTOM OF HOLE FROM 715' TO 730' WITH PEA GRAVEL 142145 10528657/24/2021 62797DESC Page 2 of 2 Anuta Memo Ex. #10 - Page 2 of 2 KARL G. ANUTA LAW OFFICE OF KARL G. ANUTA, P.C. 735 SW FIRST AVENUE, 2ND FLOOR TRIAL ATTORNEY PORTLAND, OREGON 97204 E-MAIL LICENSED IN (503) 827-0320 KGA@INTEGRA.NET OREGON & WASHINGTON FACSIMILE (503) 386-2168 July 1, 2021 VIA ELECTRONIC MAIL (corey.a.courchane@oregon.gov) AND FAX (1-503-986-0901) Oregon Dept of Water Resources Attn: Corey A. Courchane 725 Summer St., NE, Suite A Salem, OR 97301 Re: Application T-13703 Temporary Transfer Request Kameron DeLashmutt/Pinnacle Utilities Dear Mr. Courchane: This office represents Annunziata Gould, a local public interest advocate, on water issues. These comments are submitted on behalf of Ms. Gould. Since the Department has not yet completed its evaluation of this application, we hope that these comments will be helpful to your analysis and decision making. BACKGROUND As the Department well knows, the Deschutes Basin groundwater levels are in decline. Scenic waterway flows are being negatively affected. The ground and suface water resources in the area are being mined and used at a rate that is not sustainable or stable. The Department is charged with managing and protecting groundwater and surface water. The Department is the trustee of these resources, which are owned by the public. The Department is prohibited from allowing over appropriation of ground or surface water. The Department has an obligation to protect senior water right holders in the basin, from harm by new or junior users. SPECIFIC CONCERNS ABOUT THIS PROPOSED TRANSFER These comments are directed at the Temporary Transfer requested by Mr. DeLashmutt and his Pinnacle Utilities LLC (aka Thornburgh Resort or TBR). The Department should deny or condition the proposed transfer due to one or more the Page 1 of 5 Anuta Memo Ex. #11 - Page 1 of 12 following reasons: 1. There is no proof that the proposed addition of 7 wells, and the expansion of use of an additional existing well, will not cause injury to one or more existing instream water rights on Wychus Creek and/or the Deschutes River, and/or in other water bodies. Consequently under the obligations imposed by ORS 536.025, and consistent with OAR 690-380-8002(2) the proposed temporary transfer should be denied. 2. There is no proof that the proposed addition of 7 wells, and the expansion of use of an additional existing well, will not cause measurable reductions in the surface water flows necessary to maintain the free flowing character of one or more scenic waterways, in quantities necessary for recreation, fish and wildlife. Consequently under the obligations imposed by ORS 536.025, and consistent with OAR 690-380-8002(2), and consistent with the exiting limitations present in the Certificate from which transfer is proposed, the proposed temporary transfer should be denied. 3. Local sources report that the Tree Farm Certificate, a portion of which is proposed for transfer, was not in fact been used year round. It was instead, Ms. Gould is told, only been used in the summer of late. Consequently allowing year round use of the .453 CFS at TBR for 5 years would be an expansion of the existing water right. 4. The 7 new wells that are proposed will all need mitigation, to comply with the Deschutes Groundwater Mitigation Rules found in OAR Chapter 690, Division 505. However, there is no indication in the application if, or if so how, that mitigation will be provided - much less a demonstration that any proposed mitigation will meet the requirements of those Rules. 5. The extent, if any, of the current use of the existing well (#8) on the TBR is not documented in the application. It is quite possible that some, or full, use of that well has not occurred for 5 or more consecutive years. If so, the use of that well may potentially subject to forfeiture and not available for further use. 6. Well #8 appears to be one of the same wells that the applicant represented to Deschutes County in the land use proceedings over TBR, would be abandoned. See, attached Map from 2008, prepared by TBR’s consultant. The County relied on those representations, in issuing land use approvals for some or all of TBR. Consequently use of well #8 as part of a temporary transfer would be inappropriate and likely unlawful. 7. Since the extent, if any, of the current use of the existing well (#8) on the TBR is not documented in the application, any use of that well above and beyond the existing use levels (if any) should be treated as an expansion of use that should be subject to additional mitigation requirements under Page 2 of 5 Anuta Memo Ex. #11 - Page 2 of 12 the Basin Plan Groundwater Protection Rules. 8. There is no evidence that the proposed 7 new wells (or the existing well) will be operated consistent with the limitations in Certificate 94958. Those include the requirement that the use of water under the Certificate will not “measurable reduce the surface water flows necessary to maintain the free flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife.” To the contrary, it is already proven and accepted by the courts that the TBR’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.” Gould v. Deschutes County, __ Or LUBA ___, ___(2021)(LUBA #2020- 095 June 11, 2021 Slip Op. p.12)(citing Gould v. Deschutes County, 79 Or LUBA 561 (2019, aff’d 310 Or App 868 (2021)). 9. There is no proof that the proposed 7 new wells (or the existing well) will be operated consistent with the limitation in Certificate 94958, that the water use be measured with a flow meter. 10. There is no proof that the proposed 7 new wells (or the existing well) will be operated consistent with the limitations in Certificate 94958, which include that the land uses associated with the water use be in compliance with land use laws. To the contrary, some of the proposed water use that is listed in the Temporary Transfer application would be on portions of a Tax Lot (#8000), which are specifically not authorized or approved by Deschutes County to be used by TBR. See attached maps showing areas of Tax Lot 8000 that are not approved for Resort use. Yet the Revised Map provided by the applicant for the “ON” lands specifically shows use of the proposed transferred water on those same portions of Tax Lot 8000. See, attached annotated Map. Likewise the Table 2 Description of Changes specifically lists in 4 different rows (on p.10) use of the proposed transferred water on Tax Lot 8000. See, attached annotated Table excerpt. 11. A number of the exact same wells are also proposed for additional significant water withdrawal, under a Limited License (LL) application that is currently pending before the Department - LL-1879. That application proposes the use of an additional 4.5 CFS in Quasi-Municipal water from wells #1, 2, 4, 5 & 8 in the current temporary transfer application. The local Watermaster has already indicated in a Water Availability Statement for that LL, that the aquifer that these wells will likely tap is already showing “steady long term decline.” 12.Four of the new wells listed in the transfer application are also already listed for use in an expired Permit also held by Pinnacle. Specifically, wells # 3, 5, 6 & 7 are some of the same wells from which the same applicant proposes to withdraw 9.28 CFS of additional water for Quasi-Municipal Page 3 of 5 Anuta Memo Ex. #11 - Page 3 of 12 use under Permit G-17036. Specifically, well #3 in this transfer application appears to be the same as well #1 in the Permit G-17036 map; Well #5 in the transfer application corresponds to well #4 in the G-17036 map; Well #6 in the application appears to be well #5 in G-17036 map; And well #7 in the application appears to be well #6 in the G-17036 map. A copy of the G-17036 map is attached. The impacts of withdrawing both the proposed transferred water, and the water that is hypothetically authorized under the expired Permit G-17036 could be significant and have not been addressed or disclosed in the application. Those impacts will potentially create more harm to scenic waterway flows, and further degrade an already steadily declining aquifer. 13. Admittedly, Permit G-17036 is expired, and it quite likely it will ultimately be cancelled. However, the same applicant currently has yet another application pending, for all of the same 8 wells referenced in the transfer application. Specifically, Application G-19139 seeks the same 9.28 CFS from the same 8 wells that are referenced in the temporary transfer application. A copy of that map from that application is also attached. In short, the concerns about excessive use of water in a way that could harm the aquifer, near by well, Whychus Creek and/or the Deschutes River - and that could have other as yet unevaluated impacts on ground and surface water - remain valid even after G-17036 is cancelled. 14. The applications currently pending, T-13703, LL1879, G-19139, in conjunction with Permit G-17036 constitute “layered” water rights and approval of one or more of them would be contrary to OAR 690-380-2240. 15. Given the Groundwater limitations in the Basin, given the already harmed Scenic Waterways, and given the fact that multiple uses under multiple permits/certificates/licenses are currently proposed for this location, any use that was (inappropriately) approved under any of the permits/certificates/licenses at issue must be conditioned to require detailed and extensive measurement and reporting. Without that sort of conditioning the local Watermaster will unable to tell whether each use is taking only what each permits/certificates/licenses authorizes. Without that sort of conditioning the local Watermaster will unable to tell whether the holder is exceeding their lawful use or harming the aquifer in some other manner. That measurement and reporting should - at a minimum - include: (i) the installation of totalizing flow meters on each well;1 (ii) daily tabulations of exactly how much water was used, under each permit/certificate/license and where it was used; (iii) weekly or monthly recordation of static water levels in each well; and (iv) monthly reporting of all measurements to both the local Watermaster and the Department’s Groundwater section in Salem. 1 The local Watermaster, in their Water Availability Statement for LL-1879, is already recommending requiring flow meters and record keeping for all wells at issue in that application. Page 4 of 5 Anuta Memo Ex. #11 - Page 4 of 12 SUMMARY The requested temporary transfer should be denied. The applicant has not demonstrated that the proposed use is completely lawful, and that it will not use water in a way that is inconsistent with the law and the Certificate under which transfer is proposed. The applicant is attempting to stack or “layer” multiple different use authorizations onto the same wells. There has been no analysis of the impacts on the resource (both ground and surface waters) of this sort of proposed extensive pumping under multiple rights. Nor has the applicant shown that the proposed use complies with the Groundwater Protection Rules that apply in this Basin. For all the reasons articulated in this comment the transfer application should be denied. If you have any questions, please do not hesitate to contact me. Sincerely, /s/ Karl G. Anuta Karl G. Anuta c: client Page 5 of 5 Anuta Memo Ex. #11 - Page 5 of 12 • • G: \1000\1007\101\07\Cod\Woter\W100710L07 _F7_WtrEI 10: 16 04/21/2008 SS ~ 0 0 q (J) ~ q r r.i ...a IS :z::-e 7 II ~ ~ 0 0 0 0 q q Q> b 0 q DESIGNED BY: DRAWN BY: DATE: THORNBURGH RESORT D.Newton S.Schenck • ~ I r m G> CJ) m ~t (') z c: 'O 0 ;a 0 ~ ~ :I -· ;;o ... 3 0 ""O ~~ .2. CD -CD n 0 = ~ r ~ 6' c8 Q) :I 0 (/) 0 -z ~ c: CD 3 = CT (I) CD c: .., (/) ~ O' .., Q) :I Q) ~ Iii" Locations of Exempt Wells to be Abandoned Thornburgh Resort Deschutes County, Oregon PROJECT NO. April 2008 1007-101-07 FIGURE 7 Anuta Memo Ex. #11 - Page 6 of 12 Anuta Memo Ex. #11 - Page 7 of 12 Anuta Memo Ex. #11 - Page 8 of 12 Anuta Memo Ex. #11 - Page 9 of 12 Anuta Memo Ex. #11 - Page 10 of 12 1i)· 1;i 1.15 South ro ro I LU LU n.1300 ..-N I USA ...-...-I 140± ACRES ci ci .. ---+------- 12 7 1 I I 13 18 TL5100 I USA I I ---+--b I if I a; I f::: I cP Tl.5100 USA I I I ___ :._+--- 1 I I I I Tl5f00 USA I I I I I Proposed Well #6 I 13 ----r- 1 I 18 I I ------+--- \ I I 18 24 19 n.•100 I USA Tl5100 USA 24 I I I ---+--------+--- 1 I I I I I I 405± ACRES I I ---+---------+--- \ I I I 19 I I I I Proposed Lake (Approx. 20.2 acres) Tl 1400 ART WILLETT I I I I ----1---- 9 1 I I --------- 9 I I I I ---+--- 1 I 10 I 17 16 I I I 16 15 I I I -----1---- 1 I I 3615'1 I I I I ----1---- 120Ac I I ~T;~oOF ! OREGON I ----i---- 1 ----1---- 1 I I 16 21 ---+--· I I I I I I I I ----+-- 1 I 15 I 22 I I I ____ J __ I I I I Proposed Well #3 \ 1 -~""'*"~~---.!----_---I-- - ----- - --- I 1100' I EXPLANATION l™I Place of use for Golf Courses [:::::::::::I Place of use for · -:-:·:·:-:·:·:·:·:-:-: Quasi-Municipal uses. ... _,,.. p _,,.."' lanning Boundary Line ~ Approximate Location for Proposed ~ Water Supply Wells NOTES Proposed Locations of Water Use Section 17, T.15S., R.12E, W.M. Section 20, T.15S., R.12E, W.M. Section 21, T.15S., R.12E, W.M. Section 28, T.15S., R.12E, W.M. Section 29, T.15S., R.12E, W.M. Section 30, T.15S., R.12E, W.M. 1. THIS MAP WAS PREPARED FOR THE PURPOSE OF IDENTIFYING THE LOCATION OF WATER RIGHTS ONLY AND IS NOT INTENDED TO PROVIDE LEGAL DIMENSIONS OR LOCATIONS OF PROPERTY OWNERSHIP LINES. Q w I..!'.? ~ > ~ t:'..I -w 0 0 .-I cc: w ·..:X: ix: ~ I-0. w Oz (.t) 0 WC) Otu er o::: :Jo 0 U) :::E Ww fr _J a: <( wW I- g§ 0... co ~ c 0 +:i c co 0 () O> t:: ~ §: ~ 0 <( CD ~ a:~ +.J ,.... c ·-0, 5 E :Jo 0) ..c CJ) 0.. c CD I... ....... 5-0 ::i ,,, .c .c \J,,I I-(.) +.J CJ) CO CD 5 0 -0 c ::i 0 5- C) flllC tii ~ 0 l!) 0 0 N c co ::i c co J ~ () c <!) ..c () if.! CJ) Anuta Memo Ex. #11 - Page 11 of 12 Anuta Memo Ex. #11 - Page 12 of 12