HomeMy WebLinkAbout2021-09-07 L. Fancher - Applicants Rebuttal Evidence1
Chenelle Hale
From:Liz Fancher <liz@lizfancher.com>
Sent:Tuesday, September 7, 2021 1:28 PM
To:William Groves
Cc:Kameron DeLashmutt; Katzaroff, Kenneth (KKatzaroff@SCHWABE.com); D. Newton;
Janet Neuman; Kameron DeLashmutt
Subject:Applicant's Rebuttal Evidence
Attachments:Rebuttal Kam with enclosure.pdf; Rebuttal LF with exhibits.pdf; Newton Memo; Source
of Mitigation Water for FWMP 9 7 21 reduced size.pdf
[EXTERNAL EMAIL]
Will:
I have attached rebuttal documents I am filing on behalf of Central Land and Cattle Company, LLC. I will also file “hard”
copies of these documents at the CDD counter later today.
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.
PO Box 1597, Redmond, OR 97756
ThornburghResort.com
September 7, 2021
GREGORY FRANK, HEARINGS OFFICER
C/O WILL GROVES, SENIOR PLANNER
DESCHUTES COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
117 NW LAFAYETTE AVENUE
BEND, OREGON 97703
Dear Hearings Officer Frank:
I am writing to respond to comments filed by David Arnold in his letter dated August 30, 2021.
I want to make it clear that while Pinnacle Utilities, LLC has been acquiring water rights from
sources other than Big Falls Ranch, those water rights are currently not being used. As a result,
those water rights are providing benefits for fish and wildlife by increasing the flows of Central
Oregon creeks and rivers.
Mr. Arnold, while complaining that Pinnacle has substantial water rights other than the BFR
rights, overlooks the fact that the resort is not using them. The result is that a substantial amount
of water is being left in the river. In the case of LeBeau, Thornburgh has transferred 50 acres
(200 acre-feet) of water directly instream. This water is providing benefits to fish and aquatic
habitat, for which OWRD has sent a thank you letter. See enclosed photograph of letter dated
June 30, 2021 from Sarah Henderson of OWRD. The LeBeau water is the equivalent of 90 acre-
feet of mitigation water. The Tree Farm water is .453 cfs of quasi-municipal ground water which
is the equivalent of 327 acre-feet of water or 182 acre-feet of mitigation water (327/1.8).
In addition, Thornburgh has 16.5 acres of groundwater (29.7 acre-feet of mitigation water)
acquired from Dutch Pacific that has been allowed to flow to the river since 2019. Thornburgh
also acquired DRC mitigation credits long ago that are equivalent to 6-acre feet of mitigation.
As noted by OWRD watermaster Jeremy Giffin, Thornburgh has been providing this mitigation
without using any water. These water rights that are being allowed to flow to or in the river total
an equivalent of 307.7 acre-feet of mitigation water. This is over and above the 90 acres of BFR
water (162 acre-feet of mitigation) Pinnacle recently acquired which, also, is not being pumped.
This results in 469.7 acre-feet of mitigation water not being used.
As noted in the record, the total BFR water currently allowed to flow to the creek presently is
836 acre-feet of mitigation water. When it is added to the 307.7 acre-feet of mitigation water
owned by Pinnacle other than the BFR water, it yields mitigation of nearly 1,144 acre-feet. The
fact that opponents try to twist leaving water in the river into a negative instead of embracing the
benefits provided, indicate that river health is not their real concern.
Mr. Kleinman uses words like critical and delicate balance in his post-hearing comments and
says: “The source of Thornburgh’s mitigation water is not merely relevant but is critical to the
entire “delicate balance” to which we have referred to previously.” In the same submittal, he
quotes extensively from the FWMP with the apparent aim of showing that there are very
substantial impacts that must be addressed and that the solutions have little room for error. Mr.
Newton speaks to in his letter today quoting conclusions reached on page 12 of the FWMP
which clearly says that with OWRD mitigation only (quantity mitigation from the General Zone
of Impact above the Madras gage), temperature/water quality impacts are negligible and the
resort will not result in any quantifiable negative impact to fish habitat. See Newton Memo
9/7/21.
The FWMP outlines the fish habitat that is potentially affected (See page 7, section IV) and
discusses the discussions with ODFW saying:
“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 groundwater development in the basin over
time.”
On page 8, the FWMP notes that: “NCI determined the potential temperature impacts attributable
to the project are expected to be slight and below levels that can be effectively measured.”
Even though the resort’s impacts on stream temperatures were not measurable, ODFW was
concerned with the cumulative impacts of other groundwater development. Because of that
concern, we’ve litigated this issue for 13 years, spending hundreds of thousands of dollars in
every possible jurisdiction. That is why even after putting the Deep Canyon spring water in the
river, project opponents continue to construct phantom issues to complain about -- issues that
have nothing to do with the issue on remand.
Thank you for your consideration of my comments. I realize they do not relate to the issue on
remand because the source of mitigation water for the Phase A-1 tentative plan is Big Falls
Ranch but feel it is helpful to understand the broader picture in order to determine that most of
the issues raised are, in fact, irrelevant to the issue on remand.
Sincerely,
Kameron DeLashmutt
Page 1 – CLCC’s Rebuttal Evidence (Fancher)
BEFORE THE HEARINGS OFFICER FOR DESCHUTES COUNTY, OREGON
File Number: 247-21-000731-A/Land Use Board of Appeals, Case No.
2018-140. Appellant: Annunziata Gould
Applicant/Owner: Central Land and Cattle Company, LLC
Attorneys for Applicant/ Liz Fancher
Owner: Ken Katzaroff, Schwabe Williamson & Wyatt
Proposal: Affirm Approval of Tentative Plan/Site Plan on Remand
Subject Property: Tax Lots 7700, 7800, 7801 and 7900, Map 15-12-00
Hearings Officer: Gregory Frank
Planning Staff: Will Groves, Senior Planner
APPLICANT’S REBUTTAL
The applicant, Central Land and Cattle Company, LLC, by and through its attorney Liz Fancher,
files the following evidence and argument in rebuttal to evidence filed during the first post-
hearing comment period. Additional rebuttal will also be filed by others, including Kameron DeLashmutt and expert witness David Newton. The comments filed by opponents, by and large, address issues outside of the issue on remand.
The issue, as stated by LUBA, is:
“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 [if proposed] constitutes a
substantial change to the FMP approval, requiring a new application,
modification of the application, or other further review consistent with FMP and
DCC destination resort regulations.” Gould v. Deschutes County, __ Or LUBA __ (LUBA No. 2018-140, slip opinion page 32, June
21, 2019).
Page 2 – CLCC’s Rebuttal Evidence (Fancher)
Opponent arguments have been summarized and are shown in italics followed by the applicant’s response.
August 31, 2021 E-Mail from Travis Wiggins
Thornburgh must show that the terms of the original fish and wildlife plan are still in place or if the water source has changed, the County must require the resort to reach a new agreement with ODFW to show that any negative impact on fish and wildlife resources from the new water
sources will be completely mitigated.
ODFW did not enter into an agreement with Thornburgh Resort regarding mitigation. No agreement with ODFW is required now. ODFW, unlike the County, does not have regulatory authority over the Resort and its FWMP. ODFW commented on the FWMP and concluded that the plan met the no net loss standard in 2008. This standard is a county standard and compliance
is determined by the county. See DCC 18.113.070 (D).
August 26, 2021 E-Mail from Joette Storm
Do not approve the resort unless and until the source of the mitigation water is disclosed.
August 31, 2021 Memorandum from Jeffrey Kleinman
If Pinnacle has adequate mitigation water from Big Falls Ranch, prove it.
Pinnacle Utilities, LLC has purchased 90 acres of water (162 acres of mitigation water under the
Oregon Water Resources Department’s (OWRD) mitigation program rules) from Big Falls Ranch (BFR). A copy of two Requests for Assignment filed with OWRD document the fact that Big Falls Ranch Co. has assigned all interest in a portion of its Deep Canyon Creek certificated water rights to Pinnacle Utilities, LLC. Copies of the requests are included as Documents 1 and
2 of this rebuttal document. Certificates 88027 and 76371 are both Deep Canyon Creek water
rights that are no longer being pumped from the creek but are currently being pumped from BFR wells as a result of a transfer of their point of diversion, as specifically allowed by ORS 540.531. See pp. 317 and 320 of PDF filed prior to hearing by applicant with part of 2019 Record for LUBA No. 2019-136 and all of 2018 Record for LUBA No. 2018-140 (hereinafter “2019/2018
PDF”). The land to which the rights are appurtenant has not changed (Big Falls Ranch land
north of the creek) and the water rights remain surface water rights according to Sarah Henderson, the Flow Restoration Program Coordinator for OWRD. See, 2019/2018 PDF 303.
The water use associated with all uses allowed outright by approval of Phase A-1 requires 50 acre-feet of mitigation. All other uses in Phase A will account for their water use and the
mitigation required by OWRD during site plan review, as required by the FMP. This is what occurred during the County’s review of the golf course application. During that review both the anticipated mitigation water needed for the golf course and the 50-acre feet of mitigation water needed for the Phase A-1 tentative plan were accounted for by the resort. Furthermore, the initial Pinnacle Utilities, LLC contract with Big Falls Ranch water rights is for 315-acre feet of
mitigation. This is more than enough water to mitigate for the water use of all Phase A uses (single-family homes, golf course, clubhouse, overnight lodging, welcome center, community hall).
Page 3 – CLCC’s Rebuttal Evidence (Fancher)
David Arnold Letter of August 30, 2021
Pinnacle purchased water rights from Michael Lebeau and the Tree Farm. This is a change of
source that should require a new CMP and FMP.
This issue is outside the scope of remand. Thornburgh is not relying on either the Lebeau or Tree Farm water to meet its FWMP mitigation obligations for the Phase A-1 tentative plan. This is not a “change of source.” The applicant is following the FWMP and has acquired the BFR mitigation water described in the FWMP (Deep Canyon Creek) to mitigate all water use
associated with the Phase A-1 tentative plan.
Although not relevant to the issue on remand, the CMP decision allows Thornburgh to use the Lebeau and Tree Farm water rights for mitigation. Both are obtained from the General Zone of Impact above the Madras Gage. A copy of the part of the CMP decision that addresses this issue is attached as Document 3 of this rebuttal. The CMP specifically allows use of Deschutes
Resources Conservancy credits, other existing water rights, and COID “Ground Water Patron
Policy” (emphasis added) as possible sources of mitigation. If the applicant were to use the Lebeau or Tree Farm water rights for OWRD mitigation, it would remain bound to follow the terms of the FWMP, including the commitment to provide the BFR thermal mitigation promised by the plan.
ODFW Should Do a Site Survey to Check Creek Levels.
The FWMP requires that the Resort purchase water rights as mitigation. The purpose of the purchase is to terminate the pumping of water from Deep Canyon Creek. There is no requirement in the FWMP that a certain volume of water flow at a certain level in the creek, nor was there any requirement in Condition 17, to do so. The issue of creek levels is outside the scope of the issue on remand.
A Groundwater Study for G-16385 and Permit G-17036 Wasn’t Done and Should be Required
First, this issue is outside the scope of remand which asks whether the applicant has or will be able to acquire mitigation water from sources specified by the FWMP or an alternate source that will comply with the no net loss standard.
Second, groundwater studies were prepared and relied on by the County to make findings of
compliance with Resort code criteria that require that water be available for all Resort uses. DCC 18.113.070(D). The availability of water for all Resort uses, including mitigation water, was resolved with the final approval of the CMP. This claim that another study must be completed to again address the issue of water availability that was settled by the CMP is a collateral attack on the CMP and should be dismissed outright.
Secondly, Mr. Arnold is mistaken. A groundwater study of the type he references for recent permits was conducted by OWRD when it reviewed Application G-16385. Its March 21, 2005 report of the results of the OWRD review is Exhibit 2 of the FWMP. See, 2019/2018 PDF 428-435. OWRD’s review concluded that the Resort would measurably reduce surface water flows
of the Deschutes River in quantities necessary for recreation, fish, and wildlife. This impact was,
however, required to be completely offset by compliance with OWRD’s groundwater mitigation program. The OWRD review was based on a number of sources of information, including a
Page 4 – CLCC’s Rebuttal Evidence (Fancher)
detailed study entitled “Hydrology Report – Water Supply Development Feasibility Proposed Thornburgh Resort” dated February 2, 2005 by Newton Consultants, Inc.” This detailed study
was required by Deschutes County as a part of the CMP. It was used by the County to conclude
that adequate groundwater and OWRD mitigation water would be available for all uses proposed by the Resort. The issue was resolved in Thornburgh’s favor and is not an issue on remand.
OWRD found that the new applications for groundwater permits will measurably reduce surface flows in the Deschutes Scenic Waterway
This is the same language cited in the original permit. Now, as then, any impacts would be fully
offset by mitigation.
Only 2 Years to Transfer Water Back to Deep Canyon Creek
It is completely unnecessary for Pinnacle Utilities, LLC or Big Falls Ranch Co. to transfer the point of appropriation of Deep Canyon Creek water rights from groundwater back to a point of
diversion on Deep Canyon Creek. The water is currently in the creek and is flowing to the
Deschutes River. Additionally, Pinnacle’s purchase of 90 acres of BFR Deep Canyon Creek water rights provides 162-acre feet of OWRD water quantity mitigation – the quantity mitigation required to meet Deschutes Basin groundwater program mitigation rules. Second, the water rights being purchased are the same water rights described in the FWMP. Purchasing BFR water
rights and causing the cessation of pumping from Deep Canyon Creek was the primary
mitigation event required to provide the thermal mitigation as described in the FWMP. The fact that the portion of the Deep Canyon surface water rights that has not been purchased by Pinnacle is being pumped from groundwater is immaterial. The change in pumping location from creek to groundwater achieved the mitigation result expected to occur from the purchase of the water
rights – the cessation of the pumping of water from Deep Canyon Creek so that its cool waters
will flow to the Deschutes River. The only difference is that the water quality event expected to occur when the Resort purchased BFR water rights has already occurred in full (rather than in increments) because BFR has ceased diverting cool spring water from the creek. This has occurred far earlier than imagined by the FWMP. This means that fish habitat in the Deschutes
River receives water quality mitigation far sooner than required by the FWMP.
Yancy Lind E-Mail of August 25, 2021
Thornburgh stated that BFR is currently using their Deep Canyon Creek surface water rights as mitigation water for new groundwater wells on Big Falls Ranch.
Mr. Lind misunderstands the Resort’s testimony. BFR has transferred the point of diversion of
its Deep Canyon Creek surface water rights to a point of appropriation from existing
groundwater wells on the Big Falls Ranch property. Rather than pumping water from the creek, BFR is pumping the same water rights from its wells, except for the portion conveyed to Pinnacle.1 BFR is not using Deep Canyon Creek water rights as mitigation. OWRD mitigation
1 The water rights remain appurtenant to the land regardless of how BFR pumps them. Now that
BFR has assigned a portion of these rights to Pinnacle, the water right can no longer be pumped
by BFR from either the stream or from groundwater. Consequently, the spring water remains in the creek and under control of Pinnacle.
Page 5 – CLCC’s Rebuttal Evidence (Fancher)
rules do not require mitigation because no new water is being pumped. The effect of changing the point of diversion from the creek to a point of appropriation from groundwater is that the
water BFR formerly pumped from Deep Canyon Creek is now flowing into the Deschutes River.
The same water cannot be used as mitigation water for two different groundwater withdrawals.
No mitigation water is required to allow BFR to pump Deep Canyon Creek water rights from its wells. Each time Pinnacle purchases BFR Deep Canyon Creek water rights, Big Falls Ranch
will discontinue pumping the purchased rights from groundwater. There will not be two
different groundwater withdrawals of the “same water.”
Thornburgh must assure that there is “wet water” in Deep Canyon Creek in the amount of the promised mitigation. ODFW signed a settlement agreement with the resort that assures “wet water.”
The FWMP requires the purchase of Deep Canyon Creek water rights from BFR. It does not
require that a certain volume of “wet water” exist in the creek.
There is no “settlement agreement” with ODFW that assures the continued existence of a certain amount of water in Deep Canyon Creek. Furthermore, issues related to the adequacy of the plan to restore creek flows into the Deschutes River by purchasing the water rights were conclusively
settled during the review of the FMP. The issue is not subject to a collateral attack at this time.
Pumping Groundwater at BFR will Reduce Flows to the Spring that Feeds Deep Canyon Creek
The extent of pumping and the timing of when BFR groundwater pumping would reduce flows in Deep Canyon Creek is unknown. In any event, as Big Falls Ranch water rights are purchased by Pinnacle, BFR will no longer pump that water. If the water is not being pumped at all, it
cannot and will not reduce flows to the spring and creek.
August 31, 2021 Memorandum from Jeffrey Kleinman (quoting Karl Anuta)
In 2018, Big Falls Ranch transferred its Deep Canyon Creek surface water to groundwater. That means the flows required for mitigation are no longer available as potential instream flow mitigation.
Big Fall Ranch did not transfer its surface water right to groundwater. It obtained permission to
transfer the point of diversion to a point of appropriation but the water pumped, according to Sarah Henderson of OWRD, remains Deep Canyon Creek surface water. ORS 540.531(3) applies to this transfer. It says that the point of pumping Deep Canyon Creek water rights from groundwater remains a “point of diversion.” A point of diversion is associated with a right to
pump surface water.
“(3) Notwithstanding subsection (2) of this section, the department shall allow a
transfer of the point of diversion under subsection (1) of this section in the Deschutes Basin ground water study area if: (a) The new point of diversion appropriates ground water from an aquifer that
is hydraulically connected to the authorized surface water source;
Page 6 – CLCC’s Rebuttal Evidence (Fancher)
(b) The proposed change in the point of diversion will not result in enlargement of the original water right or in injury to other water right holders;
and
(c) The use of the new point of diversion will affect the surface water source
hydraulically connected to the authorized point of diversion specified in the water use subject to transfer. The department may not require that the use of the new point of diversion affect the surface water source similarly to the authorized point
of diversion specified in the water use subject to transfer under this subsection.”
ORS 540.531(3)(emphasis added). The water right itself is the same right described in the FWMP. The transfer provided instream
flow mitigation early. As water rights are purchased, they will remain in that location.
Thornburgh has already purchased 162-acre feet of the Deep Canyon Creek water rights which assures that those rights will not be pumped from the creek.
August 31, 2021 Memorandum from Jeffrey Kleinman
The memorandum of agreement does not establish the feasibility of performance.
The memorandum of agreement discloses that there is a water purchase agreement that was set to
expire June 1, 2021 and that it can be extended up and until December 1, 2022. In 2019 and 2021, Pinnacle’s water lawyer Janet Neuman verified that the water purchase agreement remains in existence. In her September 24, 2021 letter, Ms. Neuman provided further evidence that this contract was executed on February 13, 2019 and has been extended through December 1, 2021.
She also has stated that the contract may be extended through December 1, 2022.
The fact that the contract exists is clear because Pinnacle exercised rights under the contract in August of 2021. It purchased mitigation water from BFR at that time as evidenced by the assignments signed by Rex Barber, Jr. on behalf of BFR on August 24, 2021, and filed with OWRD, Documents 1 and 2. Kameron DeLashmutt also testified at the land use hearing on
August 24, 2021 that Pinnacle has purchased 90 acres of these water rights (162AF of
mitigation). The purchase would not have occurred and the assignments would not have been filed if the contract were not valid. As this purchase provides more than 3 times the 50-acre feet of mitigation water needed for the tentative plan, nothing more is required. Even so, the evidence is overwhelming that it is feasible to purchase up to 315-acre feet of mitigation water
from BFR under the existing contract.
A transfer of the BFR Ranch water rights to surface water rights in Deep Canyon Creek has not occurred.
Such a transfer is unnecessary because the water pumped by BFR and purchased by Pinnacle is a
surface water right. Even if such a transfer were necessary, Mr. Anuta’s post-hearing comments correctly acknowledge that a transfer of the point of appropriation of the BFR water rights held
Page 7 – CLCC’s Rebuttal Evidence (Fancher)
by Pinnacle back to a point of diversion in Deep Canyon Creek is allowed by law.2 The process to accomplish this task is uncomplicated and can be accomplished quickly. See, Document 4.
Mr. Kleinman’s transfer argument has nothing to do with FWMP compliance or water rights law.
It has everything to do with stalling development of the resort. As Mr. Kleinman explained in 2019, Ms. Gould intends to delay resort development by protesting any water rights transfer that requires a review process at OWRD – without regard to the merit or benefit associated with the transfer.
August 31, 2021 E-Mail from Tygh Redfield
If mitigation involves ground water it could be sourced from a supplemental well. Supplemental
water should not be allowed as mitigation.
No supplemental water rights were purchased by Pinnacle from BFR for use as mitigation water. This fact is confirmed by Document 5, attached.
Respectfully submitted this 7th day of September, 2021.
Liz Fancher
________________________________________________
Liz Fancher, Attorney for Central Land and Cattle Co, LLC 2465 NW Sacagawea Lane Bend, OR 97703 541-385-3067 (telephone)
liz@lizfancher.com (e-mail)
2 BFR cannot transfer the point of appropriation of other water rights back to Deep Canyon Creek because it is prohibited from doing so by its contract with Pinnacle Utilities, LLC.
Document 1
Document 1
Document 1
individual safety officers will have a working knowledge of the development and its access
patterns in the case of any emergency at the site.
Opponents argue the DCC requires that public safety "facilities" be provided "onsite."
The Board finds that no such requirement is contained in DCC 18.113.050(B)(10). DCC
18.113.070(I) requires that "adequate public safety protection be available through existing fire
districts or will be provided on site according to the specification of the state fire marshal."
Emphasis added.) In this case, the record demonstrates that fire protection services will be
provided by the Redmond Fire Department and the Deschutes County Rural Fire Protection
District #1. As noted above, portions of the resort are currently within the boundaries of the
rural fire district, with the remaining portions subject to a pending annexation petition. The
Board finds that, during the interim period while a foinlal annexation petition is pending, the
resort can and will be served under contract with the rural fire district. The Board interprets
DCC 18.113.070(I) to require staffed structural fire protection services on site only when the
property cannot be served by a fire department or rural fire district. That is not the case here.
This criterion is met.
11. A study prepared by a hydrologist, engineering geologist or similar
professional certified in the State of Oregon describing:
Applicant retained NCI to evaluate and report on the availability of water and estimated
demands of the destination resort, develop a water conservation plan, and evaluate any water
impact area. Additional detail is included in NCI's Hydrology Report, Ex. 16, B-26, and NCI's
Water Management and Conservation Program, Ex. 16, B -26a, and Supplemental Reports
contained in Rebuttal Ex. 16, B-1.61 through B-1.66. These materials satisfy the information
requirement. Following is a summary of the information provided by Applicant:
a. Estimate of Water Demands
NCI's Hydrology Report estimates water demands for the resort at maximum build -out
and includes a breakdown of estimated demand by category of consumption, including
residential, commercial, golf courses and irrigated common areas. RM, Ex. 16, B-1.66, Table I
Revised). The report shows estimated on- and off-peak flow rates and volumes, including total
volume and annual consumption for Phase A. Estimated demands vary widely depending on the
category of use. Irrigation for golf courses and landscaping requires the most water, while the
hotel and conference centers require the least. Refinements in golf course and landscaping
layouts that affect the number of irrigated acres could significantly change estimated demands.
As changes are made, estimated demands will be adjusted accordingly.
The water supply and delivery system must also be sufficient for fire protection. The
Redmond Fire Department Fire Marshal determined the required fire flow to be 2,250 gpm.
Water will be made available from both source capacity and storage to provide the minimum
required fire flow rate and duration. More details can be found in BOP, Ex. 16, B-26.
Page 28 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05- 20, DC NO. 2006-151
Document 3
b. Water Availability
1) Identification of proposed sources
The project is located in the upper Deschutes River Basin. Water supply for the project
will come from ground water sources. Wells equipped with electric pumps will withdraw
ground water from the regional aquifer and deliver it to reservoirs and the water distribution
system. Well locations and depths will depend on the geology ofthe aquifer system and the
differences in elevation between the ground surface and the source aquifer and proposed
reservoir locations. The source of ground water in the upper Deschutes River Basin is
precipitation and snowmelt, which infiltrates into the ground and comes to rest upon subsurface
formations with low permeability. Recharge areas are where significant amounts of precipitation
and snowmelt enter the ground to supply the ground water system. Average annual recharge to
the ground water systems in the upper basin is estimated by the United States Geological Survey
USGS) to be about 2.7 million acre-feet. This is the equivalent of 3,800 cubic feet per second
or 2.45 billion gallons per day. The total average annual amount of ground water consumed in
the upper basin area was estimated by USGS (in 1995) to be about 25,000 acre-feet per year, less
than one percent of the amount of recharge. This supports Applicant's contention that the
Deschutes River Basin has enough capacity to provide water to the subject property for the
proposed development without adversely affecting other current or anticipated future uses.
Applicant applied with OWRD for ground water rights in sufficient amount to serve the
resort, which is estimated to require 4,474 gallons per minute during peak use and consume up to
767 million gallons on an annual basis (resulting in a request for 2,355 acre-feet per year for
quasi -municipal use). An Initial Review conducted by OWRD in response to the water right
application concludes there is sufficient ground water available for the proposed use. However,
because of an established hydraulic connection between ground water and surface water in the
Deschutes Basin, the application is subject to additional mitigation requirements. In order to
obtain approval of the application and issuance of a water right permit, Applicant must provide
mitigation, as required under OWRD administrative rules. Based on the initial review conducted
by OWRD, Applicant will be required to obtain 942 mitigation credits, for full build -out. RM,
Ex. 16, B 1.65. p. 3.
The NCI Hydrology Report states Applicant will provide mitigation, in phases, as
allowed by OWRD administrative rules. Mitigation will be obtained from a variety of available
sources, including a contract with the Deschutes Resources Conservancy to provide 325
temporary mitigation credits for short-term use. Applicant will obtain additional mitigation
water by acquiring other existing water rights, which will be transferred to instream flow, and by
acquiring mitigation pursuant to the COID "Ground Water Patron Policy." BOP, Ex. 15, B-26,
p. 23.
2) Identification of information on ground waters and surface waters
Information regarding the adequacy of the ground water supply for the project is
available from the USGS and other government agencies, as well as private consulting firms that
have prepared large-scale hydrology studies in the Deschutes Basin. NCI's Hydrology Report,
Ex. 16, B-26, contains a list of sources for such information.
Page 29 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151
Document 3
3) Identification of area that may be impacted by resort water use and analysis
supporting delineation of impact area
As described in the Hydrology Report, as a general rule, well pumping can impact other
wells and hydraulically connected surface waters. Impacts can be caused by the effect of one
well or the cumulative effects of several wells pumping in a given area. When a well is pumped,
the water table at the well location is lowered, which is referred to as "drawdown." Impacts on
nearby wells can occur when the drawdown from the pumped well merges with the drawdown
from another well.
The Hydrology Report states that well interference with significant impacts to pumping
capacity is not a common occurrence where wells tap the generally high -yield aquifer system in
the upper Deschutes Basin. The highly transmissive nature of the Deschutes Formation aquifer
system supplies high capacity wells with relatively low drawdown and low interference
potential. Impacts on surface waters depend on how close the pumping is to a stream in
hydraulic connection with the pumped aquifer.
The Hydrology Report describes test data generated by the USGS as well as NCI's past
analyses of interference potential for other projects. The data were derived from aquifer and well
tests of the effect of high capacity wells on neighboring wells. These tests demonstrated that
impacts of high capacity well pumping are perceptible only in wells located within a few
hundred feet of the pumping well. The nature of nearby high capacity wells confirms the ability
of the aquifer to support such wells without measurable impacts to surrounding wells.
As proposed, the shortest distance between a project well and any existing off-site well is
about one-quarter mile. The next closest existing off-site wells are located between
approximately 4,000 feet and two miles away. According to Applicant, effects on off-site wells,
if any occur, are likely to be minor and have no measurable impact on the ability of other off-site
wells to provide water.
Potential impacts to surface water in the Deschutes River and other streams are projected
to occur in an area that is remote from the project site. The nearest areas of discharge from the
aquifer system into streams are in the Lower Bridge area of the Deschutes River and near the
mouth of Squaw Creek, which are located approximately 9 and 14 miles north of the site,
respectively. The NCI report indicates there will be no pumping impact on surface waters in
near proximity to the project site. Impacts to surface water at greater distances from the project
area will be addressed through the state mitigation requirements in connection with its
application for a ground water permit. These issues are further addressed under DCC
18.113.070(K), below.
4) Statistically valid sampling of domestic and other wells within the impact
area
As explained in NCI's Hydrology Report, BOP, Ex. 16, B-26, 96 well logs for wells
within two miles of the project were reviewed in the impact analysis. NCI considered impacts to
off-site wells near the project site and also considered the potential for impacts to the Deschutes
River. Review of the well logs, available USGS publications, and previous NCI reports provides
Page 30 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151
Document 3
a statistically valid basis for estimating available water supply and potential interference with
existing off-site wells.
c. Water Conservation and Wastewater Disposal
Applicant submitted water conservation and wastewater disposal plans in its rebuttal
materials. RM, Ex. 16, B-1.61 and B-1.62.
Water Conservation Plan
Applicant has furnished information concerning a proposed water conservation plan.
NCI's Water Conservation Program, BOP, Ex. 16, B -26j, as well as NCI's Site Plan, BOP, Ex.
16, B -26a, and a portion of NCI's Hydrology Report, BOP, Ex. 16, B-26, discuss available water
conservation measures, including the following:
1) Installing water meters.
2) Pricing domestic water supplies in a manner that encourages conservation.
3) Imposing covenants and restrictions that encourage use of drought -
resistant or low irrigation landscaping.
4) Using low -flow plumbing fixtures.
5) Monitoring of golf course and other irrigation efficiency and employing
various computerized landscape irrigation technologies to reduce or eliminate evaporation and
seepage losses.
use.
6) Adopting wastewater disposal policies to put reclaimed water to beneficial
7)
8)
Auditing annual water use and accounting for water losses.
Educating the public on efficient use of water.
NCI's Site Plan, BOP, Ex. 16, B -26a and RM, Ex. 16, B-1.61, describes the resort's
chosen conservation program, which the resort will implement to (1) minimize waste and loss of
water used for various resort purposes; (2) provide the right amount of water at the time it is
needed; (3) make effective use of the water supply; and (4) avoid over -application of water on
irrigated areas.
NCI's conservation program focuses on two principal types of water uses: (1) residential
and commercial; and (2) irrigation. Residential and commercial uses amount to approximately
35 percent of the total average annual water demand. The conservation program focuses on
limiting the quantity of such uses. The resort will consider various measures to conserve
residential and commercial water, such as (1) establishment of water use benchmarks; (2)
installation of metering systems; (3) development of a pricing structure that will encourage water
Page 31 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151
Document 3
1
Liz Fancher
From:Kameron DeLashmutt <kameron@bendcable.com>
Sent:Friday, September 3, 2021 11:15 AM
To:David Newton; Janet Neuman
Cc:Liz Fancher; Katzaroff, Kenneth
Subject:FW: Discussion regarding Reverting back to Deep Canyon Creek
From: STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>
Date: Friday, September 3, 2021 at 11:12 AM
To: Kam DeLashmutt <kameron@bendcable.com>, HENDERSON Sarah A * WRD
<Sarah.A.Henderson@oregon.gov>, JARAMILLO Lisa J * WRD <Lisa.J.Jaramillo@oregon.gov>
Subject: Re: Discussion regarding Reverting back to Deep Canyon Creek
Hi Kameron,
Given the current work situation with COVID, I would estimate that it would take at least two weeks to process the
reversion request.
Kelly
Kelly Starnes, Transfer Program Analyst
Oregon Water Resources Department
725 Summer St NE Suite A
Salem OR 97301-1271
Cellphone: 503-979-3511 Fax: 503-986-0903
E-mail: patrick.k.starnes@oregon.gov
Please Note: Under Oregon Law, messages to and from
this e-mail address may be available to the public.
From: Kameron DeLashmutt <kameron@bendcable.com>
Sent: Thursday, September 2, 2021 8:04:30 PM
To: STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>; HENDERSON Sarah A * WRD
<Sarah.A.Henderson@oregon.gov>; JARAMILLO Lisa J * WRD <Lisa.J.Jaramillo@oregon.gov>
Subject: Re: Discussion regarding Reverting back to Deep Canyon Creek
Patrick,
Thank you for the speedy response. I think Sarah mentioned that once you received such email as noted below that it
automatic and quickly reverts. Please confirm that is the case. And if not please note the time involved.
I appreciate your assistance in clarifying.
Sincerely,
Kameron
Kameron DeLashmutt
541-350-8479
Document 4
2
kameron@bendcable.com
kameron1959@gmail.com
From: STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>
Date: Thursday, September 2, 2021 at 10:15 AM
To: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>, Kam DeLashmutt
<kameron@bendcable.com>, JARAMILLO Lisa J * WRD <Lisa.J.Jaramillo@oregon.gov>
Subject: Re: Discussion regarding Reverting back to Deep Canyon Creek
Good Morning Sarah and Kam,
The rules that Sarah quoted are correct. However, the transfer application referred to in the rules has to be filed on
rights subject to transfer. According to WRIS, I do not believe the Department has issued certificates confirming T-
12651, thus there are no rights subject to transfer. IF confirming certificates have not been issued, then the transfer
applicant can revert the transfer back to the authorized point of diversion. Such a reversion request can be made by e-
mail.
Kelly
Kelly Starnes, Transfer Program Analyst
Oregon Water Resources Department
725 Summer St NE Suite A
Salem OR 97301-1271
Cellphone: 503-979-3511 Fax: 503-986-0903
E-mail: patrick.k.starnes@oregon.gov
Please Note: Under Oregon Law, messages to and from
this e-mail address may be available to the public.
From: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Sent: Thursday, September 2, 2021 8:34:26 AM
To: Kameron DeLashmutt <kameron@bendcable.com>; STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>
Cc: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Subject: RE: Discussion regarding Reverting back to Deep Canyon Creek
Hi Kameron, I always enjoy speaking with you সহ
And I want to apologize up front… it didn’t register to me last night when we were talking that this was not a regular pod
transfer change, T-12651 (Big Falls Ranch) was a SW POD to GW POA change, and I might have given you some incorrect
information.
OAR 690-380-2130 has its own procedure for returning back to the original SW POD, it would not be like the regular pod
transfer change “reverting back” with just an email to Kelly Starnes, like I told you last night. I’m sorry!!!
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3
I am asking Kelly to chime in here and help you and I out, I believe in the SW to GW changes that an application would
have to be submitted … “(8) The Department shall approve a transfer application to return to the last authorized surface
water point of diversion if the required transfer application is received within five years after the Department approves a
transfer under this rule. It shall be presumed, for transfers under this subsection, that there is no injury, including injury to
rights obtained or transferred after the approval of the first transfer.”
T-12651 was approved on 11/20/2018 so we are still within that five year period.
Also, the final order states (7) The original point of diversion of surface water shall not be retained as an additional or
supplemental point of diversion under the transferred portion of the right. However, if within five years after approval
of the transfer, the Department receives a transfer application to return to the last authorized surface water point of
diversion, the application shall be approved.
Kelly – please help us out, I want to make sure that Kameron is getting the correct information, I told him that a pod
revert would be super easy, just send an email to Kelly… as you can see above I forgot about the sw to gw rules. If you
could explain in detail what would need to happen to revert to the original pod that would be great.
Again, sorry Kam!!
And thank you Kelly!
Sarah
Sarah A. Henderson
Flow Restoration Program Coordinator
Transfer and Conservation Section
725 Summer St. NE, Suite A |Salem, OR 97301
Work Cell 503-979-9872
Email: sarah.a.henderson@oregon.gov
From: Kameron DeLashmutt <kameron@bendcable.com>
Sent: Wednesday, September 1, 2021 7:26 PM
To: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Subject: Discussion regarding Reverting back to Deep Canyon Creek
Sarah,
It was nice speaking to you this afternoon. Thank you for further clarifying earlier conversations we had about reverting
the Deep Canyon Creek rights to a Point of Diversion in Deep Canyon Creek from the existing POA in the ground.
As we have discussed previously, and you confirmed today the process, to revert the current Point of Appropriation in
the Big Falls wells to the previous Point of Diversion in Deep Canyon Creek is very simple. As I understand it the process
to do so is to send an email to Kelly Karnes (sp?) informing that we would like to change the POA back to a POD and that
will be acknowledged and approved immediately after which the POD would be back in Deep Canyon Creek. This would
be limited to the interference period, that would last 5 years from the time of issue of the final order approving the
change in the POD.
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4
Please confirm that I have accurately portrayed our discussions and the process as you understand it to revert the POA
back to the POD in Deep Canyon Creek.
Sincerely,
Kameron DeLashmutt
541-350-8479
kameron@bendcable.com
kameron1959@gmail.com
Document 4
1
Liz Fancher
From:Kameron DeLashmutt <kameron@bendcable.com>
Sent:Tuesday, September 7, 2021 12:13 PM
To:Liz Fancher
Subject:FW: Primary vs. supplemental
From: Rex Barber <bigfalls@cbbmail.com>
Date: Tuesday, September 7, 2021 at 7:40 AM
To: Kam DeLashmutt <kameron@bendcable.com>
Subject: RE: Primary vs. supplemental
It is all primary Deep Canyon with supplemental well rights. The supplemental rights from Deep Canyon are in areas not
included in the water right assignment.
Rex
Sent from Mail for Windows
From: Kameron DeLashmutt
Sent: Monday, September 6, 2021 7:49 PM
To: Rex Barber
Cc: David Newton; Janet Neuman
Subject: Primary vs. supplemental
Rex,
The maps for the transfer and assignment documents are not clear that the 90 acres is all primary irrigation. Is there
something that you can provide me that shows it is all primary.
That is one of the comments we are addressing.
Thank you,
Kam
Document 5