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Home My WebLink About2021-08-31 K. Katzaroff - Letter to Hearings Officer1 Chenelle Hale From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com> Sent:Tuesday, August 31, 2021 3:01 PM To:'Liz Fancher'; William Groves Cc:Kameron DeLashmutt; Kameron DeLashmutt Subject:RE: Central Land's Post-Hearing Evidence and Exhibits (Fancher) [IWOV- pdx.FID4649055] Attachments:2021-8-31 Ltr to Hearing Officer Frank c_o Will Groves, Deschutes County.PDF [EXTERNAL EMAIL] Hi Will! Can you also please include the attached letter in the record. Liz will also be dropping of a paper copy. Thanks so much. Ken Schwabe Williamson & Wyatt Kenneth Katzaroff Attorney Direct: 206-405-1985 kkatzaroff@schwabe.com Admitted in Washington and Oregon. LEARN HOW OUR CLIENTS ARE INNOVATING IN THEIR INDUSTRIES: www.schwabe.com/fueling-change From: Liz Fancher <liz@lizfancher.com> Sent: Tuesday, August 31, 2021 1:40 PM To: William Groves <William.Groves@deschutes.org> Cc: Katzaroff, Kenneth <KKatzaroff@SCHWABE.com>; Kameron DeLashmutt <kameron@bendcable.com>; Kameron DeLashmutt <kameron1959@gmail.com> Subject: Central Land's Post-Hearing Evidence and Exhibits (Fancher) Will: I am filing the attached documents on behalf of Central Land and Cattle Company, LLC. Please include the evidence in the record of File 247-21-000731-A (Phase A-1 Tentative Plan Remand). 2 Thank you, Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. __________________________________________________________ NOTICE: This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. U.S. Bank Centre | 1420 5th Avenue | Suite 3400 | Seattle, WA | 98101-4010 | M 206-622-1711 | F 206-292-0460 | schwabe.com Kenneth Katzaroff Admitted in Washington and Oregon T: 206-405-1985 C: 206-755-2011 KKatzaroff@SCHWABE.com August 31, 2021 VIA E-MAIL Hearings Officer Frank c/o Will Groves, Senior Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE: Deschutes County File Nos. 247-21-000731-A, 18-386-TP, 18-454 -SP, 18-542- MA; Remand of LUBA No. 2018-140; Court of Appeals A171603. Our File No.: 135849-262760 Dear Hearings Officer Frank: As you know, we represent the applicant in the above-referenced matter. Along with the documents submitted by Ms. Liz Fancher, this letter provides additional information as to how Thornburgh currently meets the county’s “no net loss” standard (“NNL Standard”) and has implemented – earlier than required – the mitigation benefits sought by the Fish and Wildlife Mitigation Plan (“FWMP”). To provide mitigation to meet the NNL Standard, the FWMP required water quality mitigation. To provide the mitigation benefit, the FWMP sought to restore live creek flows to Deep Canyon Creek (“Creek”) by ceasing direct withdrawals from the Creek that had historically been made by pumping from the Creek to irrigate the Big Falls Ranch (“BFR”), and instead have the Creek flow to the Deschutes River. As was discussed and described in detail by Mr. Kameron DeLashmutt at the public hearing on August 24, 2021, this mitigation has occurred and the water previously pumped out of Deep Canyon Creek now flows directly to the Deschutes River. Because a picture is worth a thousand words, we have prepared the attached visual depiction as “Exhibit A”, that accurately describes how the mitigation event has occurred and why the NNL Standard is met. Page 1 illustrates the historic view before the mitigation benefit was achieved. This consisted of BFR pumping water directly out of the Creek under two water rights certificates. BFR also pumped groundwater to meet its irrigation needs. Hearings Officer Frank August 31, 2021 Page 2 Page 2 illustrates that BFR transferred the point of diversion (previously the Creek), to a point of appropriation using its existing wells. This allowed the water that was previously pumped directly out of the creek to instead flow to the Deschutes River. Page 3 illustrates the current conditions. BFR now pumps water under the same water rights certificates and applies it to the same lands designated by those certificates. Now, no water is pumped out of the Creek and the entire benefit sought by the FWMP has been completed; the restoration of Creek flows to the Deschutes River. This is above and beyond the specific mitigation required for the present phase of the resort. Thornburgh has secured all of the BFR water that is required to meet the NNL Standard. As of August 24, 2021, Thornburgh has closed on, and received an assignment of, 162 acre feet of mitigation water that was previously owned by BFR; which is more than the required 50 acre feet of water required for mitigation at this time. Very truly yours, SCHWABE, WILLIAMSON & WYATT, P.C. Kenneth Katzaroff PDX\135849\262760\JKKA\31635486.1 schwabe.com BEFORE TRANSFER Deschutes River Big Falls Ranch Deep Canyon Spring Wells at BFR BFR pumps out of creek under water right certificates 76371 and 88027. Deep Canyon Creek Groundwater General Zone | Deschutes BFR has pumped groundwater for decades for irrigation use. Exhibit A Page 1 of 3 TRANSFER Deschutes River Big Falls Ranch Deep Canyon Spring Wells at BFR Deep Canyon Creek Groundwater General Zone | Deschutes BFR transfers point of diversion from creek to a point of appropriation using groundwater, allowing all spring water to flow down creek and into the Deschutes River. BFR increases groundwater pumping to leave water in Deep Canyon Creek. Exhibit A Page 2 of 3 PRESENT Deep Canyon Creek Groundwater General Zone | Deschutes Deschutes River Big Falls Ranch Deep Canyon Spring Wells at BFR 8/24/2021 Thornburgh closes on 162 acre feet of mitigation water. Additional BFR water under contract. All spring water now flows down creek into the Deschutes River. Exhibit A Page 3 of 3