HomeMy WebLinkAbout2021-08-31 J. Kleinman - Open Record Memorandum and Exhibits1
Chenelle Hale
From:Jeffrey L. Kleinman <kleinmanjl@aol.com>
Sent:Tuesday, August 31, 2021 4:48 PM
To:William Groves
Subject:File Nos. 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:Hearings Officer Memorandum 8-31-21.pdf; Kleinman Exhibit A - FISH AND WILDLIFE
MITIGATION PLAN ADDENDUM-HIGHLIGHTED (from ODFW file) 4-21-08.pdf; Kleinman
Exhibit B.pdf
[EXTERNAL EMAIL]
Hi Will,
Attached please find my initial open record memorandum and two exhibits for the record in the above matter.
Thank you.
Jeffrey L. Kleinman
Attorney at Law
The Ambassador
1207 SW Sixth Avenue
Portland, OR 97204
Tel: (503) 248-0808
Fax: (503) 228-4529
Email: KleinmanJL@aol.com
JEFFREY L. KLEINMAN
ATTORNEY AT LAW
THE AMBASSADOR
1207 S.W. SIXTH AVENUE
PORTLAND, OREGON 97204_______
TELEPHONE (503) 248-0808
FAX (503) 228-4529
EMAIL KleinmanJL@aol.com
August 31, 2021
FIRST OPEN RECORD MEMORANDUM
OF ANNUNZIATA GOULD
TO:Deschutes County Land Use Hearings Officer
FROM:Jeffrey L. Kleinman
RE:File Nos. 247-21-000731-A, 18-386-TP, 18-454-SP,
18-542-MA; LUBA No. 2018-140; Court of Appeals A171603
Thornburgh Destination Resort Subdivision
______________________________________________________________________
A. Introduction
When one separates the wheat from the chaff in this matter, there remains an
ample supply of wheat. This is explained in great detail in the findings of Hearing
Officer Olsen. Based upon the extensive evidence in the record before him, he
determined that Thornburgh had not met its burden of proving compliance with
FMP Conditions 10 and 38. That is why he imposed Tentative Plan (TP)
Condition 17. Now, putting forth even less–and arguably weaker–evidence, and in
the face of stronger countervailing evidence, Thornburgh would have the Hearings
Officer believe that the applicant should be able to snap its fingers and make
Condition 17 go away. Thornburgh’s attempt at quasi-judicial hypnosis must fail.
Condition 17 is straightforward, requiring in material part:
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 * * * the Big [Falls] 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 quantity and quality mitigation so as to not constitute a
substantial modification or justify a modification to the FMP.
The applicant now states that it will rely only upon Big Falls Ranch water
for mitigation. It will not rely upon COID (Central Oregon Irrigation District)
water, and will not propose an alternate source for review and approval by ODFW.
On or about May 21, 2021, Thornburgh filed its site plan application for its first 80
OLUs in Casefile No. 247-21-000508-SP. Review of that application is ongoing.
If the applicant has adequate mitigation water from BFR, as they contend here,
what is the problem with proving it in that proceeding. What precisely is
Thornburgh’s team afraid of?
B. Thornburgh Has Failed Once Again to Meet Its Burden of Proof.
The source of Thornburgh’s mitigation water is not merely relevant but is
critical to the entire “delicate balance” to which we have referred previously. That
source is cold spring-fed water in Deep Canyon Creek, which in turn flows a mere
half mile at the most to the Deschutes itself. There is no substitute.
Page 2 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
In a nutshell, Thornburgh contends that it will obtain sufficient cold water to
compensate for the impact upon anadromous fish habitat of the resort’s depletion
of groundwater for homes, golf courses, recreational lakes, and other uses, by
obtaining BFR’s rights to the spring-fed water of Deep Canyon Creek and assuring
the unrestrained flow of the now-impounded creek into the Deschutes.
Thornburgh did not possess those rights in 2018. It has had three years to obtain
them. It has failed to do so. Moreover, its ability to obtain those rights has been
further impaired over time.
In this regard, we direct the Hearings Officer’s attention to the letter from
Ms. Gould’s water counsel, Karl Anuta, filed on August 23, 2021, and its Exhibits
1 through13. (Please note that due to their length, the exhibits were filed as nine
separate items and are listed in reverse order on pages 15-17 of the ACCELA site
for this remand proceeding. There is no Exhibit 4.) At the August 24 public
hearing, the Hearings Officer directed questions to counsel regarding the contents
of that letter. Mr. Anuta is responding under separate cover today.
Portions of Mr. Anuta’s earlier letter relate to the resort’s use of water,
necessitating mitigation. Other portions relate to a series of pending applications
from Thornburgh under consideration by OWRD. If granted, these may well
complicate the mitigation picture later. However, the discussion most relevant to
Page 3 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
the specific question on remand appears at pages 2 through 4:
The applicant will also need water for mitigation for any and all of its
wells. That is required by OWRD and the Deschutes Basin Mitigation
Program. In addition, the applicant will need an appropriate amount of cold
spring water permanently protected instream - in order to meet the
applicant's obligations under its Mitigation Agreement with the Oregon
Department of Fish & Wildlife (ODFW), and to meet the County ‘no net
loss’ policy, both of which were incorporated into conditions of approval for
the Resort Final Master Plan.
Availability Of Water - Mitigation
The applicant is required by the approval conditions to fully mitigate
the water impacts of its Phase A-1 Resort. That includes both quality and
quantity of water. The applicant agreed, and the County conditioned
approval on, the applicant providing cold spring surface water from Deep
Canyon Creek, and the removal of two dams/reservoirs on that Creek - in
order to off set the impacts of the Resort ground water Permit (#G-17036) on
Whychus Creek.
Those are impacts which LUBA has already acknowledged and
confirmed:
“The resort's consumptive use of groundwater is anticipated to impact
an offsite fish-bearing stream, Whychus Creek, by reducing instrearn
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.”
Gould v. Deschutes County, 79 Or LUBA 561, 563-64 (2019), appeal
dismissed, ___ Or App ___ (2019), rev'd and rem'd, 367 Or 427, 478 P3d
982 (2020), aff'd, 310 Or App 868, 484 P3d 1073 (2021).
However, the water rights that the Resort promised and that the
Page 4 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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 transfer means that the cold spring surface water flows in Deep
Canyon Creek - the flows specifically required to offset the impacts of the
Resort G-17036 Permit - are no longer currently available as potential
instream flow mitigation for the Resort.
In theory, up until or on November 20, 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 approval that would 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-12651 transfer Order into a new Certificated right, at that new
groundwater location. That COBU was submitted on 9-30-20.
(Emphasis in original; footnotes omitted. In the original letter on file, the footnotes
direct the reader to specific supporting exhibits mentioned above.)
Page 5 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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 permanently 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 at that 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.”
Both of those events occurred after Hearings Officer Olsen issued his
decision on October 29, 2018, 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 applicant’s case has only become weaker over the
years since that time.
It would probably be beneficial (in the conventional sense of the word) to
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 April 21, 2008 (“FWMP”).
It was actually prepared by Thornburgh’s engineer, David Newton. A copy with
the most relevant language highlighted is attached as Exhibit A. We reproduce the
Page 6 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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 quantity or quality for fishery resources. The measures will
also provide additional benefits to habitat resources.
Exhibit A at 1.
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 General Zone of Impact. 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
12 East, as shown on Figure 3, a map 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 authorized point 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
Page 7 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
spring discharge point is shown on the USES Cline Falls, Oregon.
Quadrangle map (as shown on Figure 3) at a 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 to 2.07 cubic feet per second of
flow that would otherwise be diverted from the creek for irrigation will
remain in the creek as an instream water right. This additional flow will be
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.
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.
Id. at 7.
IV. Fish Habitat Potentially Affected by Ground Water Use
During the consultation process, ODFW identified two specific
Page 8 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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
temperature 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.
Id.
In early correspondence 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
Ardt to Thornburgh, dated January 31, 2008.) Under the ODFW Mitigation
Policy, Habitat Category 1 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, not Habitat 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 a net benefit of habitat quantity or quality. OAR
635-414-0025(2).
Page 9 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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 program to provide additional cold water benefits; (C)
removal of an existing instream irrigation pond in connection with the
transfer of Big Falls water rights * * *
Id. at 8.
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
irrigation season.
C. Elimination of Existing Irrigation 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
Page 10 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
system. This is expected to provide a temperature benefit by eliminating
temperature increases due to ponding effects.
Id. at 9.
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 warm periods. * * *
VII. 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 identifies specific mitigation measures. The plan
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 a water 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
Page 11 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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 utilize 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
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. at 11-12.
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. A copy of
Page 12 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
that letter is attached hereto as Exhibit B. It states in material part:
Following Thornburgh's submission of its Addendum Relating to
Ground Water Withdrawals in April, 2008 (“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
authorization 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.
With respect to the impoundments in Deep Canyon Creek, the evidence
before you will show that as of 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 any event, the primary FMP conditions of approval intended to assure
Thornburgh’s compliance are Conditions 10 and 38:
Page 13 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
10. Applicant shall provide, at the time of tentative plat/site 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
ODFW 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.
As we have explained, Hearings Officer Olsen held that Thornburgh had not
met its burden of proving compliance and hence imposed Condition 17. Now,
opponents have supplied incontrovertible evidence that Big Falls Ranch has
obtained an Order from OWRD permanently transferring the subject water right,
previously in surface water at Deep Canyon Creek, to groundwater on BFR’s ranch
land. Perhaps the Hearings Officer has been or will be persuaded that the water
right could be transferred back to surface water in the creek following request from
Thornburgh at some point in the future.1 Regardless, it has not happened. What
1In this regard, we note as we have before that the memorandum of
agreement with BFR which Thornburgh has placed in the record is not evidence a
reasonable finder of fact would rely upon, even to establish the feasibility of
performance. The copy filed by the applicant’s counsel as part of their “burden of
proof statement” in this remand proceeding provides:
Page 14 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
then?
The law is clear on this point. Under Meyer v. City of Portland, 67 Or App
274, 678 P2d 741, rev den, 297 Or 82, 679 P2d 1367 (1984) and Rhyne v.
Multnomah County, 23 Or LUBA 442 (1992), as long as a local government finds
compliance or feasibility of compliance with applicable criteria, it is appropriate to
impose conditions of approval to ensure that those criteria are met. 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 17, 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
The Effective Date of the Agreement is February 13, 2019, and the
Agreement expires on June 1, 2021 unless sooner terminated or as may be
extended up to December 1, 2022 , pursuant to the terms and conditions of
the Agreement.’
The actual agreement with BFR, including the terms relating to “sooner”
termination (whether or not unilateral on the part of BFR) remains “top secret.”
There is no evidence of an extension beyond June 1, 2021, or of any effort to
reverse the transfer to surface water approved by OWRD at BFR’s request.
Page 15 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
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 surface water, and that said right has been placed permanently
instream in Deep Canyon Creek.
Alternatively and most simply, Tentative 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.
In any event, Thornburgh is free to take a third shot at this issue in its
pending application for site plan approval of the subject Overnight Lodging Units,
just as Condition 17 provides.
Dated: August 31, 2021.
Respectfully submitted,
Jeffrey L. Kleinman
_______________________________
Jeffrey L. Kleinman, OSB No. 743726
Attorney for Annunziata Gould
Page 16 - FIRST OPEN RECORD MEMORANDUM OF ANNUNZIATA GOULD
i .
THORNBURGH RESORT
FISH AND WILDLIFE MITIGATION PLAN
ADDENDUM RELATING TO
POTENTIAL IMPACTS OF GROUND WATER WITHDRAWALS
ON FISH HABIT AT
April 21, 2008
Prept1retl By:
Newton Consultants, Inc. 521 SW 6111 Street, Suite 100 Redmond, Oregon 97756
Prept1retl Ft1r:
Thornburgh Resorts, LLC 2447 NW Canyon Drive Redmond, Oregon 97756
Prt>}cct Nr,:
1007-101-07
EXHIBIT A
THORNBURGH RESORT
FISH AND WILDLIFE MITIGATION PLAN
ADDENDUM RELATING TO
POTENTIAL IMPACTS OF GROUND WATER WITHDRAWALS ON FISH
HABITAT
I. Introduction
This report was prepared on behalf of Thornburgh Resort Co., LLC, ("Thornburgh") as
an Addendum to the Thornburgh Resort Wildlife Mitigation Plan prepared by Tetra Tech
EC, Inc. The Addendum was developed by Newton Consultants, Inc. ("NCI") with
assistance from Tetra Tech, and also reflects discussions with representatives of the
Oregon Department of Fish and Wildlife (ODFW) regarding potential impacts on fish
habitat and specific measures to mitigate for any negative impacts.
II. Background
The proposed Thornburgh Resort ("Resort") will have no direct impact on natural surface
waters; there are no such resources on the property and the proposed source of water for
the Resort is ground water, to be appropriated under a water right approved by the
Oregon Water Resources Department ("OWRD"). Use of ground water by the Resort is
expected to indirectly impact flows in the Deschutes River as a result of a determination
of hydraulic connection between surface and ground waters in the Deschutes Basin. This
determination was made by OWRD in connection with its evaluation and approval of
Thornburgh's application for a water right authorizing the use of ground water for the
Resort. A copy of the Final Order issued by OWRD approving the water right application
is attached as Exhibit 1. As a result of the determination of hydraulic connection, the
water right approval requires Thornburgh to provide mitigation to offset projected flow
reductions in the "zone of impact" identified by OWRD. Additional information about
the affected surface and ground water resources is contained in a Hydrology Report
prepared by NCI and submitted as part of Thornburgh's application for Conceptual
Master Plan.
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
quantity or quality for fishery resources. The measures will also provide additional
benefits to habitat resources.
1
III. Resort Water Supply and OWRD Flow Mitigation
A. Resort Water Supply
Ground water will be used by Thornburgh for a variety of purposes common to resorts,
including domestic and commercial uses, golf course and landscape irrigation,
reservoir/pond maintenance and fire protection. Collectively, these uses are described in
the water right as "quasi-municipal" use. The amount and timing of water needs for the
Resort are tied to a phased development plan. Water needs were estimated for the first
phase (Phase A) and for total resort build-out, as shown below.
Phase A water development is estimated to require a maximum annual volume of 1,201
acre-feet (AF) during the first year, followed by 978 AF per year in subsequent years.
The difference is due to increased irrigation requirements during the first year of golf
course development. The maximum rate of withdrawal during Phase A is estimated at
4.04 cubic feet per second (cfs). Consumptive use for Phase A is estimated at 610 AF per
year. The term "consumptive use" means the amount of ground water appropriation that
will not otherwise return to surface water flows due to evaporation, transpiration or other
factors. (See, OAR 690-505-0605(2).)
Maximum water use for the second phase of development (Phase B, or Full Build-out) is
estimated at an additional 1,151 AF, with an additional withdrawal rate of 5 .93 cfs, as
authorized in the OWRD Final Order. At full build-out, the Final Order allows total use
ofup to 2129 AF per year with a maximum withdrawal rate of9.97 cfs.
1. Estimated Phase A Water Use
ANNUAL VOLUME
WATER USE PEAK RATE 18TYEAR LATER YEARS
Golf Courses 1.94 cfs 360AF 269AF
Irrigation 0.65 cfs 105 AF 105AF
Reservoir Maint 0.47 cfs 144AF 144AF
OtherQ/M 0.98 cfs 460AF 460 AF
TOTALS 4.04 CFS 1069 AF 978AF
2. Estimated Full Resort Build-Out Water Use
WATER USE PEAK RATE ANNUAL VOLUME
Golf Courses 5.82 cfs 717 AF
Irrigation 1.20 cfs 195 AF
Reservoir Maint 0.80 cfs 246 AF
OtherQ/M 2.15 cfs 971 AF
TOTALS 9.97 CFS 2129 AF
CONSUMPTIVE USE
242AF
63 AF
120 AF
185 AF
610AF
CONSUMPTIVE USE
645 AF
117 AF
206AF
388AF
1356 AF
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B. OWRD Mitigation Requirements
Mitigation is required for new ground water permits in the Deschutes Basin under ORS
390.835 and related administrative rules in OAR 690-505-0500 et seq. The OWRD
mitigation rules were adopted in response to a comprehensive study of ground water
resources in the Deschutes Basin conducted by the United States Geological Survey
("USGS") and OWRD. (Ground Water Hydrology of the Upper Deschutes Basin,
Oregon," USGS Water Resources Investigation Report 00-4162, 2001.) The study area is
shown on Figure 1. The study demonstrates hydraulic connection between the regional
ground water aquifer and surface water within the Deschutes Ground Water Study Area
as shown on Figure 1.
Under the OWRD rules, all new ground water uses within the USGS study area are
presumed to be in hydraulic connection with the Deschutes River system. The rules
require mitigation to offset the impact of ground water pumping on surface water flows.
In reviewing applications for new ground water rights, OWRD determines the total
quantity of water to be diverted from ground water and the amount of"consumptive use"
associated with the proposed new use. Consumptive use is defined under the rules as the
amount of water that does not otherwise return to surface water flows in the basin due to
transpiration, evaporation, or movement to another basin. The amount of mitigation
required -or "mitigation obligation" -is equal to the amount of consumptive use on an
annual basis. Mitigation must be in the form of legally protected water for instream use.
In most cases, mitigation is obtained by acquiring existing water rights for irrigation use
and converting them into instream water rights held by the state.
In addition to specifying the quantity of mitigation water required to offset consumptive
use, OWRD identifies the "zone of impact", or location within the surface water system
in which the impact of a proposed ground water use is expected to occur. Mitigation
must be provided in a location at or above the projected area of surface water impact
within the designated zone of impact.
Before a water right application may be approved, the applicant must submit a mitigation
plan to OWRD describing how the mitigation obligation will be met. Applicants
proposing municipal or quasi-municipal use have the option of providing mitigation in
incremental units tied to specified phases of development; however, the mitigation
obligation for each phase of development must be provided in full before water use may
begin for that phase.
C. Thornburgh Mitigation Obligation
Mitigation for Thornburgh is required in the "General Zone of Impact" shown on Figure
2. The General Zone allows mitigation water to be obtained from any source in the
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Deschutes Basin above the Madras gage, which is located below Lake Billy Chinook.
The broad geographic scope of the General Zone reflects findings in the USGS Study that
most ground water within the basin flows toward the confluence area of the Crooked and
Deschutes Rivers and discharges into the river and tributaries in an area just above Lake
Billy Chinook.
In reviewing the Thornburgh application, OWRD detennined that the ground water flow
in the area proposed for the Resort wells is towards the north and the area of major
ground water discharge, which is about 6 miles from the Resort. OWRD indicated that
there is evidence that the proposed ground water use could impact flows in the Deschutes
River as shown in Exhibit 2 (Public Interest Review for Ground Water Applications).
OWRD did not identify the potential for localized impacts in other portions of the
Deschutes Basin based on its review of the proposed Thornburgh wells. The OWRD
mitigation rules specifically provide that mitigation may be required in a target area such
as the Metolius, Squaw Creek (now known as Whychus Creek), Little Deschutes or
Crooked River sub-basins when OWRD determines a proposed use will have localized
impact. However, OWRD did not make such a finding for Thornburgh.
Mitigation for the Resort will focus on the Middle Deschutes Zone shown on Figure 2,
which is within the General Zone specified in the Thornburgh water right. The first
phase of water development (Phase A) is estimated to require a maximum annual volume
of I ,201 AF with a consumptive use estimate of 610 AF. The mitigation obligation for
Phase A is 610 AF, equal to consumptive use. Maximum water use for Phase Bis 2,129
AF per year (full build-out, including Phase A use). The estimated consumptive use and
related mitigation obligation at full build-out is 1,356 AF.
Under the Final Order, and OWRD rules, mitigation must be provided in advance for the
full amount of water to be pumped under each phase of development. The Final Order
also includes conditions requiring Thornburgh to measure and report water use and
authorizing OWRD to require additional mitigation beyond the amount specified in the
mitigation obligation if OWRD determines that the average annual consumptive use is
greater than the amount estimated and reflected in the original mitigation obligation.
D. Thornburgh Mitigation Plan for OWRD Water Right
Prior to approval of its water right application, Thornburgh submitted an "Incremental
Mitigation Plan" to OWRD, describing the proposed timing and methods for meeting the
mitigation obligation. (Exhibit 3). The Incremental Mitigation Plan, proposes two
phases of water development and describes the general approach and feasibility of
meeting the total mitigation obligation through a combination of sources including
primarily irrigation water rights purchased within the Central Oregon ltTigation District
(COID) and from Big Falls Ranch Inc.
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1. OWRD Mitigation for Phase A
COID Water Rights
The Resort has already secured 85.24 acres of water rights located within the COID and
in the General Zone of Impact. The water rights will be converted to mitigation water by
completing permanent water right transfers to change the use from "irrigation" to
"instream flow." These transactions are projected to result in 153.43 AF of mitigation
water per year. (OWRD typically allows 1.8 AF of mitigation water for each acre of
irrigation water rights transferred to instream use. The quantity is based on the average
consumptive use associated with irrigation in the Deschutes Basin.) The transfers will be
accomplished in accordance with the COID Ground Water Patron Policy, a set of
procedures under which landowners within the COID service boundaries may convert
existing surface water rights held by the district into instream water rights, to offset new
ground water development. Thornburgh is within the COID boundaries and is working
cooperatively with COID under the Ground Water Patron Policy. Under a Development
Irrigation Plan ("DIP") filed with COID, Thornburgh will be entitled to acquire the
remaining amount of mitigation needed to satisfy its water right mitigation obligation
through COID water rights. (A copy of the DIP has previously been filed with the
County.)
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 General Zone oflmpact. 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 12 East, as shown on Figure
3, a map 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 authorized point 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 USGS
Cline Falls, Oregon. Quadrangle map (as shown on Figure 3) at a location about 0.56
miles upstream from the creek's confluence with the Deschutes River.
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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 USGS 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 to 2.07
cubic feet per second of flow that would otherwise be diverted from the creek for
irrigation will remain in the creek as an instream water right. This additional flow will be
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.
2. OWRD Mitigation for Phase B/Full Build-Out
Mitigation water for Phase B will come first from the transfer of the remainder of the Big
Falls Ranch water rights. The locations of the Big Falls Ranch water rights for Phase B
mitigation are shown on Figure 4. The remaining mitigation water will come primarily
from water rights acquired within the COID that will be converted into mitigation credit
through permanent instream transfers. The COID currently serves a total of
approximately 45,000 acres of land. A significant portion of this land is expected to
become converted to urban land uses in the next three to five years. Under the Ground
Water Patron Policy, COID Patrons are given preference for the acquisition of water
rights associated with these lands, before such water rights could be transferred outside of
the District. As a result, Thornburgh is in a position to gain priority access to water rights
available within COID for mitigation purposes. When such rights are acquired and
transferred instream, they will be protected as instream flow rights from the COID
diversion on the Deschutes River at Bend, downstream to Lake Billy Chinook.
The Resort also has an agreement to purchase land with an additional 100. 7 acres of
water rights outside of the COID (McCabe Family Trust property.) Transfer of these
rights to instream use would result in permanent protection under an instream flow right
in the Deschutes River from the river River Mile 140 downstream to Lake Billy Chinook,
a distance of about 20 miles. River Mile 140 is about 6.5 miles upstream from Lower
Bridge. The location of the mitigation area is shown on Figure 5.
Thornburgh does not plan to provide any of its required mitigation for Phase A or B
through canal lining or piping projects that save water through increased efficiency of
water use. Although such conservation measures can be beneficial by reducing current
diversions of surface waters, the practice has been questioned as a means of providing
mitigation water to offset new ground water pumping. In recognition of these concerns,
Thornburgh will not utilize this option.
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E. Summary of OWRD Mitigation Plan
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 remaining
519.18 AF per year is expected to come from upstream sources through the COID water
rights that would be acquired and transferred instream, or in combination with the
McCabe water rights. These mitigation measures, as required by OWRD, are specifically
designed to offset impacts of ground water pumping.
The initial Big Falls transfer of 175 acres is projected to result in 315 AF per year of
mitigation water. This water, originating from springs, will flow to the Deschutes River.
Transfer of the remaining 289.9 acres under the Big Falls water rights, as mitigation for
Phase B, will generate an additional 521.82 AF per year from Deep Canyon Creek flow
that otherwise would be diverted for irrigation use. This water, along with that resulting
from the transfer of 175 acres for Phase A mitigation, will be protected as instream flow
from approximately River Mile 132.8 downstream to Lake Billy Chinook, near River
Mile 120. The Big Falls mitigation water offers the additional temperature benefit of
providing relatively cool waters from Deep Canyon Creek.
Mitigation transfers for remaining Resort needs (approximately 288.5 acres of water
rights generating a total of at least 519.18 AF per year of mitigation water) will involve
rights from the COID and the other sources under purchase options and agreements with
the Resort. The instream flow created by these transfers is expected to be protected
instream from the COID diversion at Bend, near River Mile 166.5, to Lake Billy Chinook
near River Mile 120.
Figure 5 shows the distribution of mitigation flows between the COID diversion at Bend
and Lake Billy Chinook.
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 temperature 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 its consultation with Thornburgh regarding these issues, ODFW recognized that the
OWRD ground water mitigation program was specifically designed to identify and
mitigate for the impacts of flow reduction as a result of new ground water pumping in the
7
basin. Although the OWRD rules and USGS study on which the rules are based do not
directly address temperature issues, ODFW also recognized that with the flow
replacement required under OWRD rules the potential impact to temperature as a result
of the Thornburgh project -or any similar individual project -is expected to be
negligible... However, ODFW acknowledged a concern about the potential for
cumulative impacts from on-going ground water development in the basin, over time.
In early correspondence 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 Ardt
to Thornburgh, dated January 31, 2008.) Under the ODFW Mitigation Policy, Habitat
Category 1 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, not Habitat Category I . 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 a net benefit of habitat quantity or
quality. OAR 635-414-0025(2).
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 fmdings by OWRD that the Thornburgh project is expected to affect flow in the
Main Stem Deschutes River. Given that finding, NCI determined the potential
temperature impacts attributable to the project are expected to be slight and below levels
that can be effectively measured.
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 program to provide additional cold water
benefits; (C) removal of an existing instream irrigation pond in connection with the
transfer of Big Falls water rights; (D) elimination of existing ground water uses on the
Resort property; and (E) a measure to provide $10,000 in funding to complete an on-
8
going thermal modeling project on Whychus Creek or a suitable alternative enhancement
project. Collectively, these measures will address ODFW mitigation policy requirements
and ensure compliance with the County land use standard.
A. Compliance with OWRD Mitigation Requirements
Thornburgh will at all times comply with the terms and conditions of the OWRD water
right approval. As described above, the terms and conditions include providing flow
mitigation for each phase of development prior to beginning water use, and monitoring
and reporting water use to OWRD. In addition, Thornburgh will obtain all of its
mitigation water through the conversion of existing irrigation water right into protected
instream water rights and will not rely on canal lining, piping or similar conservation
measures as part of its OWRD mitigation. Although conservation actions can be
beneficial and reduce total surface water use, they have been questioned as viable
measures for mitigating new ground water development. By providing mitigation water
from the conversion of existing water rights, Thornburgh will eliminate approximately
7.5 to I 0.4 cfs of existing surface water diversions during the irrigation season, restoring
natural stream flow to the system at or above the area of impact from Thornburgh wells
during the time period when stream flows are typically the lowest and temperatures are
warmest.
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 irrigation season.
C. Elimination of Existing Irrigation 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
temperature benefit by eliminating temperature increases due to ponding effects.
D. Terminate Use of Existing "Exempt" Wells on Thornburgh Property
Thornburgh will terminate domestic and livestock use and abandon three existing wells
on the Resort property when the Resort water system is developed. The three wells were
originally constructed for domestic use serving three homes on the property. All three
wells were in use for domestic purposes until the property was acquired by Thornburgh;
9
currently, two of the wells are used for such purposes. The approximate location of the
three wells is shown on Figure 7.
Domestic water use for each of the three wells was estimated at 250 gallons per day
(gpd). Of the three exempt wells, one is used to irrigate about one-half acre that is used
to pasture goats. Until recently, another well was also used to irrigate about one-half acre
and for livestock watering for up to about 20 horses at a time. The third well was used for
domestic/household uses with only incidental landscape irrigation. Irrigation uses were
estimated at 30 inches per year of irrigation water applied over a 7-month irrigation
season, resulting in a rate of 2260 gpd per well. Livestock watering for the horse
operation was estimated at 200 gallons per day.
Although the amount of water to be saved as a result of this mitigation measure is
relatively small, the action was recommended as a mitigation measure by ODFW and will
provide ground water offset of approximately 3.65 AF in addition to the amount of
mitigation water otherwise required by OWRD.
E. Funding for Thermal Modeling
As an enhancement measure, Thornburgh will provide $10,000 to assist with completion
of an on-going thermal modeling project on Whychus Creek. Thornburgh water use is
not projected to impact Whychus Creek based on OWRD analysis; however, ODFW has
identified the Whychus Creek sub-basin as an area of particular concern with respect to
the potential for cumulative impacts from ground water development in the basin.
This measure is intended to support state efforts to gather additional information that may
inform future policy and management decisions relative to natural and anthropogenic
activities, including ground water use, on stream temperatures. In the course of
investigating this issue, Thornburgh learned that the DEQ has begun development of a
computer thermal model of Whychus Creek but has not completed the work in part
because of a lack of available funding. Approximately $10,000 is needed to complete the
modeling work. When the modeling is done, the state agencies and other stakeholders in
the Whychus Creek watershed will be able to identify sources of stream heating and in
turn determine the most cost effective steps to take to improve the creek's thermal
environment. Accordingly, as part of the overall mitigation package for fish and wildlife
impacts, Thornburgh will provide $10,000 to complete the thermal modeling project.
This funding will be provided by Thornburgh within 90 days after the close of Phase 1 lot
sales for the project. If the modeling project has already been completed at that time,
Thornburgh will work with ODFW to identify an alternative priority project for data
collection, modeling, or habitat enhancement.
VI. Mitigation Results
Implementation of the OWRD approved mitigation plan is expected to result in
replacement flow of 1356 AF per year of mitigation water at full build-out of the Resort,
an amount equal to consumptive use. All required mitigation will be provided in advance
10
of water use. The mitigation action will also result in restoration of approximately 7.5 to
10.4 cfs of surface water flow currently diverted for irrigation use based on elimination of
irrigation diversions from Big Falls Ranch and COID .
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 warm periods.
The remaining 519.82 AF of mitigation water under the water right is expected to come
from upstream sources through the COID water rights that would be acquired and
transferred instream. This action will eliminate existing surface water diversions during
the irrigation season, thereby restoring flow between Bend and Lake Billy Chinook.
The decommissioning of existing onsite wells and ground water uses will provide
additional habitat benefits in excess of the OWRD approved mitigation plan. Funding to
be provided for temperature modeling will further state efforts to quantify and assess
cumulative impacts associated with ground water development.
VII. 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 identifies specific mitigation
measures. The plan 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 a water 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.
11
By committing to fully utilize 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.
The potential for an increase in stream temperature resulting in a negative impact to fish
and wildlife resources was also evaluated. In developing recommendations for this plan,
it was clear that the slight potential for increased stream temperature attributable to
Thornburgh's proposed ground water use was not significant enough to result in any
quantifiable negative impact to fish habitat. However, the above-described measures will
mitigate any negligible temperature impact that may be attributed to the Resort. In
addition, in response to concerns about the potential cumulative impacts of ground water
development in the Deschutes Basin, Thornburgh will provide funding to support thermal
modeling or other enhancement measures recommended by ODFW to develop
information that can inform future policy and management decisions regarding
cumulative impacts of ground water pumping
Collectively, the mitigation and enhancement measures demonstrate that any potential
negative impacts to fish habitat resources as a result of the Thornburgh resort will be
completely mitigated so there is no net loss or net degradation of the resource as required
by the County code.
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