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Home My WebLink About2021-08-18 Supplemental Burden of ProofBEFORE THE HEARINGS OFFICER OF DESCHUTES COUNTY, OREGON File Numbers: 247-21-000731-AILUBA No. 2018-1401247-18-0003 86-TPl247- I 8-000454-SP Applicant/Owner:Central Land and Cattle Company, LLC (Kameron Delashmutt) Application:Review on Remand of Phase A-1 Tentative Plan and Site Plan Approval for Thornburgh Resort Subject Property:Tax Lots 7700,7800, 7801 and 7900, Map 15-12-00 Attorneys for Applicant: RECEIVED AU0 1 8 ?0?l Deschutos County CDD Ken Katzaroff Schwabe, Williamson & Wyatt PC 1420 Fifth Ave. Suite 3400 Seattle, WA 98101 206-40 5 -1985 (telephone) kkatzaro ff@schwabe. com Assigned Planner:William Groves Appellant:Annunziata Gould Attorney for Appellant: Jeffrey Kleinman SUPPLEMENT TO CENTRAL LAND AND CATTLE COMPANY LLC'S BURDEN OF PROOF ON REMAND The applicant provides the following supplemental information to support approval of the Phase A-1 tentative plan on remand without TP Condition 17. LUBA's Order in LUBA No. 2019-136 The parties to the appeal of LUBA No. 2019-136 requested that LUBA remand the Board's 2019 decision that approved the tentative plan and deleted TP Condition 17. The parties have agreed that, based on the Supreme Court's finding that Ms. Gould timely appealed LUBA No. 2018- 140, the Board lacked jurisdiction to make that decision and, therefore, the decision is of no legal effect. The decision does, however, provide insight into how two of the current members of the BOCC view the legal issues presented by this remand. Liz Fancher 2465 NW Sacagawea Lane Bend, OR 97703 54 I -3 85-3 067 (telephone) liz@lizfancher.com File 247 -21-00073 1-A Page I - Supplemental Burden of Proof Scope of Review on Remand There is only one issue on remand. No new legal issues, however, may considered. Legal issues that were and that could have been raised on appeal to LUBA in 2018 may not be addressed by the County on remand. Those issues are baned by the doctrines of law of the case and waiver. Gould v. Deschutes County, 272 Or App 666,362 P3d 679 (2015); Mill Creek Glen Protection Association v. Umatilla County,88 Or App 522, 7 46 Pzd 728 (1987); Beck v. City of Tillamook, 105 Or App 27 6,805 P2d 144 (1991), aff'd in part and rev'd in part 3 13 Or 148, 83 I P2d 678 (1ee2). The applicant, appellants for LUBA Nos. 2018-140 and20l9-136 and County staff have agreed to ask the Hearings Offrcer to allow the submittal of new evidence regarding the issue on remand. If the hearings officer reopens the record, as requested, parties may raise new, unresolved issues that relate to new evidence related to the issue remanded. The parties may not, however, raise old, resolved issues on remand. Beckv. City of Tillamook,3l3 Or 148, 831 P2d 678 (ree2). Issues Resolved by LUBA in LUBA 2018-140 lltildlife Management PIan LUBA found that the issue of whether the resort's mitigation plan meets the no net loss standard was not raised on appeal. That issue, therefore, is settled. This means that if there is no change in the source of mitigation, there is no question but that the applicant has met the no net loss standard. LUBA said "In this appeal, petitioner does not challenge the mitigation plan, but instead challenges the Phase 1-A approval as inconsistent with the mitigation plan, as explained further below. " Gould v. Deschutes County,79 Or App 561, 573 (2019) (Gould VIII), aff'd, 3 10 Or App 868, 484 P3d l0l3 (2021), Exhibit A of Central Land's Burden of Proof. " [T]he mitigation plan was not specifically tied to or dependent upon the stages of phased development approved in the FMP. Instead, mitigation is planned to occur as development occurs." Gould VIII at 574 [f]he details of the mitigation plan are established by the FMP, and compliance (or noncompliance) with the mitigation measures will be established by annual reporting required by FMP Condition 38. Gould VIII at 583 Flle 247-21-000731-A Page2 - Supplemental Burden of Proof "The mitigation plan involves (1) the removal of two wells on the subject property, (2) the removal of rwo dams that impede the flow of spring water fromDeep canyon creek to the Deschutes River, and (3) transfer of water from Deep Canyon Creek that Big Falls Ranch uses for irrigationfor mitigation. *** [RJemoval of the dams and provision of mitigation water is required by the FMP approval and the tentative plan does not alter the mitigation plan. Response Brief 55. The hearings fficer was not required to impose additional conditions to the approval of the tentative plan. " Gould VIII at 583 Overnight Lodging Units LUBA decided that issues related to Overnight Lodging Units (OLUs) were addressed and resolved by the County in its review of the CMP and FMP and need not be addressed during review of the Phase A-1 tentative plan. The first part of Condition 17 requires a review to determine whether OLUs are OLUs at the time the applicant seeks approval of the OLUs. This condition is not needed, however, because this issue was resolved during review of the CMP and FMP. Additionally, the condition is not needed in order to meet the uiteria that apply to the review of the tentative plan for Phase A-1. The issue will be addressed, to the extent relevant, during the review of the OLU site plan now pending review by Deschutes County. LUBA said: " [IntervenorJ may obtain approval of a tentative plan without providing details about the oLU construction. The residential units may not be sold, leased, or rented until the OLUs are built and assured throughfinancing. Intervenor states that after the tentative site plan is approved, intervenor will subsequently submit site plans that show how the lots will be developed to provide the oLUs and recreational amenitie s. Gould VIII at 567-568. Petitioner argues that the hearings fficer erred in approving the tentative plan because the plan does not describe the OLU structures in sfficient detail to establish whether they qualify as oLUs as defined in DCC 18.04.030. Intervenor responds that the county's prior CMP/FMP decision, and related appeals, resolved the OLU issue. We agree. Gould VIII at 568 Flle 247-21-000731-A Page 3 - Supplemental Burden of Proof Discussion of FMP Conditions of Approval that Relate to the Mitigation Water FMP Condition 10 - OWRD Mitigation All issues related to compliance with FMP Condition 10 were resolved by LUBA against Ms. Gould and that issue is not relevant to the review on remand as it relates to OWRD mitigation water only - not to the mitigation required by the WMP and its FWMP addendum. WMP/ FWMP mitigation is assured by Condition 38 of the FMP. FMP Condition 10 requires: " 10. Applicant shall provide at the time of tentative plat/site plan review for each individual phase of resort development, updated documentationfor the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase. " LUBA affirmed the County's finding that the requirements of FMP Condition of Approval 10 had been met by Central Land. Gould VIII at 580-581. The showing made by Central Land was that it had a water rights permit that had been extended by OWRD that was being protested by Annunziata Gould and that 50 AF is the amount of OWRD mitigation water required for Phase A-1. Gould VIII at 577. Ms. Gould challenged the County's findings of compliance with Condition 10 at the Oregon Court of Appeals without success. Issues related to compliance with Condition 10, therefore, are settled and are not a basis for denial of the tentative plan on remand. LUBA has made it clear that Condition 10 relates to OWRD mitigation only and that wildlife mitigation is addressed by Condition 38: "Satisfaction of the no net loss standard is ensured through compliance with Condition 38, not Condition 10. *** [WJe agree with intervenor thctt Condition l0 is concerned only with satisfaction of DCC 18.1 I3.070(K) regarding the availability of waterfor resort use and mitigationfor the volume of consumptive use, as required by OWRD under the water right. " Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2020-095, June 11,202I, slip opinion at l3)("Gould Golf Course"), Attachment 1. LUBA's understanding of Conditions 10 and 38 is correct. Condition 10 was adopted as apart of the CMP before the WMP/FWMP mitigation plan was written and approved as a part of the FMP. Gould v. Deschutes County,2l6 Or App I 50, 163, l7l P3d 150 (2007)(wildlife plan not "composed" at time of approval of CMP); Gould Golf Course, Attachment 1., page 3 (FMP includes FWMP). Condition 10, therefore, is not referring to the mitigation required by the WMP/FWMP. LUBA also found that the phasing referred to by Condition 10 is each development application filed by Central Land with the County and is appropriately provided at the time of pumping groundwater - when required by OWRD , Gould VIII at 57 4-57 5. LUBA subsequently affirmed Frle247-21-00073 t-A Page 4 - Supplemental Burden of Proof the Board of County Commissioners ("BOCC") interpretation of Condition 10. The BOCC found as follows: "The previous BOCC further found that prior to mitigation water being required by the OWRD wqter right permit, Thornburgh is only required to show it is not precludedfrom obtaining mitigation water as a matter of law. The previous BOCC further found that Thornburgh had met that standard and had exceeded it by showing it was feasible at that time to obtain sfficient mitigationwater when required by OWRD. *** The current BOCC agrees with and considers those previous findings as binding on the t"Ui:::.application. Condition I0 does not require the Applicant to provide an agreement, or any form of proof of qn qgreement or contractfor mitigationwater. It just requires Applicant to provide an accounting of the mitigation water for the uses in this site plan." Exhibit C of Central Land's Burden of Proof, BOCC Decision 247-19-000881-SP, 247- 20-00027 9-A and 247 -20-000282-A, page 6. The mitigation water "required under the water right" by Condition 10 is the mitigation water required by OWRD's Deschutes Basin Groundwater Mitigation Rules. OWRD requires that this mitigation come from anywhere within the GeneralZone of Impact shown on Figure 2 of the FWMP on the following page, Attachment 2,p.3 (FWMP plan narrative). While this mitigation water is partially relied on for mitigation by the FWMP, Condition 10 was not imposed to achieve compliance with the "no net loss standard." File 247 -21-00073 1-A Page 5 - Supplemental Burden of Proof I ,l I ,t*.nat16.|rd.t}ndt?e(}r*.t&trA.. ,N.&a,'fr72 U*N.tnl*7*,btlt l8,l'.U,tort.- t6&k n kln:O.r.lrLoandw'l.tallallon Proer'n Ft.lYs pneirh &fe.r n go.t Jnflt lA 200i. |er t0 NEWTONI rlancoNsurnANrs INc. 6af!h. V{tltt rod Roc* At{drllll!*Gtc.s Derchutor Oround Uatrr Zorrr ol tmprct DtlrololY: ID,i,lewbn I 0R Hltl S.S<*nnct OAIIr ADdl 2008 tiorlgaNor007-101{7 FIOURE 2 FMP Condition 38 FMP Condition 38 is, as demonstrated in the discussion of FMP Condition 10, the condition of approval that requires Central Land to abide by the Wildlife Mitigation Plan and its FWMP addendum. Condition 38 was adopted, for the first time, by the FMP to assure compliance with the WMP and its FWMP addendum. Compliance with Condition 38 is assured by annual reporting to the County rather than during development reviews. File 247 -21-000731-A Page 6 - Supplemental Burden of Proof Condition 38 says: "The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFWfor management of ffiite mitigation effirts. 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." LUBA has determined: "FMP Condition 38 requires intervenor to "abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFWfor management of offsite mitigation effirts[,J and "submit an annual report to the county detailing mitigation activities that have occurred over the previous year. " **tr As established in prior appeals, the mitigation plan satisfies the substantive no net loss/degradation standardfor destination resort development. We agree with intervenor that the details of the mitigation plan are established by the FMP, and compliance (or noncompliance) with the mitigation measures will be established by annual reporting required by FMP Condition 38. " Gould VIII at 582-583 The County BOCC has also found, in approving the Thornburgh golf course site plan that "[c]ompliance with the FWMP is assured by Condition 38 of the FMP and its program of annual monitoring. As long as a proposed development application does not alter the FWMP, the FWMP is not relevant in the review of a site plan or tentative plan application." Ms. Gould did not challenge this finding in her appeal of the golf course site plan. FMP Conclition I Hearings Offrcer Olsen imposed Condition l7 of the tentative plan under the authority of Condition 1 of the FMP. Condition I says: 1. Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application. " Rec 60, 69-70 for LUBA 2018-140. The argument presented to LUBA that led to its rejection of TP Condition 17 was, according to LUBA: "Petitioner argues that TP Condition I7 impermissibly allows a modification of the mitigation plan without providing an opportunity for further public input on the issue of whether any proposed alternate source of mitigation water provides Ftle 247-21-000731-A Page 7 - Supplemental Burden of Proof 'the same quantity and quality mitigation; to satisfy the not net loss/degradation standard. *** We agree. " Gould VIII at 578 The legal problem with Condition 17 identified by LUBA was that it allows an altemate source of mitigation water to be used for mitigation by the Resort. That problem, however, is fully resolved by the removal of Condition 17 from the tentative plan approval. The applicant is purchasing mitigation water from Big Falls Ranch which is the best source of mitigation water required by the FWMP. The Big Falls Ranch water is the only mitigation water specifically required by the FWMP because it provides both water quality (temperature) and quantity mitigation. FWMP, Attachment 2, p. 8-9 . 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- going thermal modeling project on Whychus Creek or a suitable altemative enhancement project. Collectively, these measures will address ODFW mitigation policy requirements and ensure compliance with the County land use standard. FWMP, Attachment 2, p. 8. As there will be no change of mitigation water, there is no need for Condition 17. Compliance with the FWMP has been determined to meet the no net loss standard. As a result, the tentative plan approval should be reaffirmed without Condition 17. LUBA's Framing of the Issue on Remand LUBA recently affirmed Deschutes County's approval of the Thornburgh Phase A golf course. In so doing, it summarized the issue on remand for LUBA No. 2018-140 as follows: "Our remand was narrow. Deschutes County Code (DCC) 18.1 13.070(D) requires that '[aJny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource.' We have referued to that standard as the 'no net loss' standard. The resort's impact onfish andwildlife, and the fficocy of the FWMP to satisfu the no net loss standard, has been the subject of multiple prior appeals. In Gould VIII, we concluded that a condition of approval that the hearings fficer imposed in approving the Phase A-1 TP violated the right to public participation on File 247 -21-00073 1-A Page 8 - Supplemental Burden of Proof whether the no net loss standard will be satisfied by mitigation water from sources not specified in the FWMP." Gould Golf Course at 4-5, Attachment I The condition of approval of the tentative plan that resulted in the remand was Condition 17, as shown above. The offending part of Condition 17 is the part that allowed the applicant to obtain mitigation water from an alternate source. The applicant does not propose to and will not rely on an alternate source of water for mitigation to offset potential impacts of pumping groundwater for the Phase A-l tentative plan. Response to LUBA's Issue on Remand LUBA's question on remand requires the County to decide whether the tentative plan for Phase A-1 will meet the no net loss standard without Condition 17. Without Condition l7,the tentative plan decision will require the applicant to comply with the FWMP. By complying with the FWMP, it will comply with the no net loss standard. See discussion of LUBA's 2018 decision above. As long as the FMP and the FWMP are not altered by the tentative plan by a change in the source of mitigation water, the no net loss standard is met.l Pinnacle Utilities, LLC will purchase mitigation water from Big Falls Ranch to offset the impacts of water use associated with the Phase A-1 tentative plan. It is the only mitigation water needed to address the need for mitigation water for Phase A-1, 50 AF of water. The Big Falls Ranch water is the best source of water for fish mitigation provided by the FWMP. It is "cold" water and the only water specifically required by the FWMP to address water quality issues. A copy of the FWMP narrative that demonstrates this fact is attached, Attachment B. ODFW's 2008 review of the FWMP confirms the fact that ODFW required the Big Falls Ranch water to provide water quality and quantity mitigation water quantity mitigation to satisfi'the "no net loss" standard. Amy Stuart, Deschutes District Watershed Manager for ODFW, said the following: "In this particular case the potential impact to springs and seeps will likely be mitigated by transferring springs flows usedfor iruigation [by Big Falls RanchJ back into Deep Canyon Creek and the Deschutes River. These springs should provide similar habitat and help with water temperatures in the Deschutes River. " R:ec. 67 6, LUBA 2018-140. The COID and other sources of water authorized by the FWMP were not relied on to mitigate for the impact of potential impacts to cold water springs and seeps. In fact, the Big Falls Ranch water was secured because ODFW determined that COID water rights would not address those impacts. 1TP Condition of 17 was imposed because the record lacked evidence to find that mitigation from an alternate source would comply with the no net loss standard. Gould VIII at 580. File247-21-000731-A Page 9 - Supplemental Burden of Proof 2 Since the Big Falls Ranch water is the best water required by the plan and the only water relied on to mitigate for impacts to cold water springs, no violation of the no net loss standard will occur by using it for mitigation for Phase A-1. It is that simple. Condition 17 was imposed because hearings officer Dan Olsen was uncertain whether obtaining mitigation water from Big Falls Ranch remained a possibility after the ranch changed its point of appropriation of Deep Canyon Creek surface water rights to a new point of appropriation (groundwater wells). Rec 70, LUBA 2018-140.2 The answer to this question is yes as explained by Central Land's water lawyer, Janet Neuman, in Attachment 3, p. 5. Ms. Neuman's bio, Attachment 4, is included to demonstrate her expertise in oregon water law. The answer to this question is also yes for the following reasons: 1. Big Falls Ranch continues to own Deep Canyon Creek water rights other than those sold to Pinnacle Utilities, LLC. Big Falls Ranch has not transferred the water rights to a different property, they have only changed the point of appropriation. The land irrigated by Big Falls Ranch remains the same. The only change is that Big Falls Ranch now pumps the Deep Canyon Creek surface water rights from groundwater. The fact that this water remains a Deep Canyon Creek surface water right was confirmed by Sarah Henderson, Flow Restoration Program Coordinator of OWRD in20l9. See, Attachment 5. By discontinuing pumping from Deep Canyon Creek, Big Falls Ranch is allowing the 836.82 af of cold spring water it used to pump to flow into the Deschutes River. This is providing cold water mitigation far in excess of what is required by the FMP to mitigate water use by Phase A-1 tentative plan uses (50-acre feet). The positive benefits of discontinuing pumping and removing dams on Deep canyon creek is addressed David J. Newton, PE, cEG, cwRE in Attachment 6. Mr. Newton is a highly respected geological and environmental engineer, hydrogeologist and water rights examiner as shown by his resume, Attachment 7. Pinnacle utilities, LLC, the resort's water company, will be purchasing more than 5O-acre feet of Big Falls Ranch Deep Canyon creek surface water rights in the 2 Hearings Officer Olson also expressed concern about the availability of COID water. Given the fact Pinnacle Utilities LLC has secured water for mitigation from Big Falls Ranch and it is the best water required by the FWMP, the COID water is not needed. Consequently, it is not necessary for the applicant to change the source of mitigation water at this time. aJ File 247 -21-00073 1-A Page 10 - Supplemental Burden of Proof near future.3 The water, once purchased, will no longer pumped from either Deep Canyon Creek or from groundwater. This is what is promised by the FWMP.4 The findings made by the BOCC on remand in2019 fully support our analysis of the issues provided above. The BOCC found: "The applicant has shown that the Big Falls Ranch water rights associated with Deep Canyon Creek are and remain surface water rights even though they are pumpedfrom groundwater wells. They may be purchased by the applicant to mitigate for impacts that will occur after the resort starts to pump groundwater for resort uses. When Big Falls Ranch water rights are purchased, Big Falls Ranch will discontinue pumping the groundwater associated with the rights purchased. The applicant has shown in its evidence submitted to the record, that it is feasible for it to purchase the Big Falls Ranch water referenced in the FWMP. It is not necessary for the applicant to purchase mitigation water from COID at this point because the amount ofwater to be purchasedfrom Big Falls Ranch is more than what is required to mitigatefor Phase A-l uses. Additionally, Big Falls Ranch is the only source of water identified by the FWMP that provides both water quality (temperature) and water quantity mitigation. Approval of the Tentative Plan does not require TP Condition 17 because the applicant remains bound to obtain water rights for mitigation from the sources specified by the FWMP, as approved in the FMP. Additionally, the applicant has demonstrated that the alleged situation that created uncertainty about the Big Falls Ranch mitigation water rights - the transfer of the point of diversion of Big Falls Ranchwater - does not prevent compliance with the FWMP." Based on the foregoing, it is clear that Condition 17 is not required to assure compliance with the no net loss test and may be omitted from the County's decision approving the tentative plan. Submitted this 18th day of August,202l. Liz fancher Liz Fancher, Attorney for Central Land and Cattle Company, LLC 3 Pinnacle also has a contractual right to purchase sufficient additional Deep Canyon Creek water rights from Big Falls Ranch for other Phase A uses such as its golf course, clubhouse and overnight lodging units when the water is needed. a The FWMP requires Pinnacle to remove a dam from the creek. LUBA found, however, that Mr. Olsen did not need to require dam removal as a condition of approval of the Phase A-1 tentative plan because its removal is assured by the FWMP and no change to the FWMP is required as a result of approval of the Phase A-1 tentative plan. Gould VIII at 583. FiIe 247-21-000731-A Page 11 - Supplemental Burden of Proof 1 2 aJ 4 5 6 7 8 9 10 11 12 T3 I4 15 T6 17 18 19 20 2l 22 24 25 26 28 29 30 3l 32 aaJJ 34 35 36 37 38 23 Attachment 1 BEFORE THE LAND USE BOARD OF APPEALS OF TI{E STATE OF OREGON ANNTJNZIATA GOULD, Petitioner and PAUL J. LIPSCOMB, Int erv enor - P etitioner, VS DESCHUTES COUNTY, Respondent, and KAMERON K. DELASHMUTT, Int erv enor - Res pond ent . LIJBA No. 2020-095 FINAL OPINION AND ORDER 27 Appeal from Deschutes County. Jeffrey L. Kleinman filed a petition for review and reply brief and argued on behalf of petitioner. Paul J. Lipscomb filed a petition for review No appearance by Deschutes County. J. Kenneth Katzarcff filed the response brief and argued on behalf of intervenor-respondent. Also on the brief was Schwabe, Williamson & Wyatt, P.C. Page 1 1 2 J 4 5 6 7 Attachment 1 ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, Board Member, participated in the decision. AFFIRMED 06ltt/2021 You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. Page 2 Attachment 1 1 Opinion by Zamudio. 2 NATURE OF THE DECISION 3 Petitioner and intervenor-petitioner challenge a board of county 4 commissioners decision approving with conditions a site plan for a golf course, 5 irrigation lakes, and a road system (collectively, golf course site plan) as part of 6 a destination resort. 7 FACTS 8 A destination resort is a "self-contained development providing visitor- 9 oriented accommodations and developed recreational facilities in a setting with 10 high natural amenities." Statewide Planning Goal 8 (Recreational Needs); ORS 11 I97.445. Local govemments may plan forthe siting of destinationresorts onrural 12 lands, subject to the provisions of state law. Goal 8; ORS I97.435 - 197.467. 13 The land use dispute around the proposed Thornburgh Resort has been 14 before LUBA many times. We discuss that history only to the extent that it is 15 relevant to this appeal. ln 2006, the county approved the Thornburgh Resort 16 conceptual master plan (CMP) *d, in 2008, it approved a final master plan 17 (FI\4P). The FMP provides for phased development and includes a fish and 18 wildlife habitat mitigation plan (FWMP) to offset the impacts of the resort 19 development. The FMP divides the development into seven phases. The first 20 phase, Phase A, includes development of transportation infrastructure, a golf 2I course, a restaurant, meeting facilities, open space, 300 residential units, and 150 22 ovemight lodging units (OLUs), and implementation of the FWMP. Page 3 Attachment 1 1 In May 2018, intervenor sought approval for the first phase of 2 development.l Intervenor requested approval of a tentative plan for a portion of 3 the approved Phase A, calling the partial sub-phase "Phase A-1," which includes 4 a tentative subdivision plat for 192 single-family residential dwelling lots, 24 5 single-family deed-restricted OLU lots, and 13 OLU lots, together with roads, 6 utility facilities, lots, and tracts for future resort facilities and open space. We 7 refer to the approvals, collectively, as the Phase A-l TP. A county hearings 8 officer approved the Phase A-1 TP with conditions. 9 On June 21,20L9, we remanded the Phase A-1 TP. Gould v. Deschutes 10 County,79 Or LUBA 561 (2019) (Gould VIID, aff'd,310 Or App 868, 484 P3d 11 1073 (2021). Our remand was naffow. Deschutes County Code (DCC) 12 1 8. 1 13.070(D) requires that "[a]ny negative impact on fish and wildlife resources 13 will be completely mitigated so that there is no net loss or net degradation of the 14 resource." We have referred to that standard as the "no net loss" standard. The 15 resort's impact on fish and wildlife, and the efficacy of the FWMP to satisff the I The Thomburgh Resort Company, which was dissolved, sold its rights in and to the development of the Thornburgh Resort to intervenor-respondent Delashmutt, who sold those rights to Central Land and Cattle Company,LLC. Delashmutt also acquired water rights for the Thomburgh Resort and sold those water rights to Pinnacle Utilities,LLC. Central Land and Cattle Company, LLC v. Deschutes County,74 Or LIJBA 326,349 n 13, aff'd,283 Or App 286, 388 P3d739 (2016). In this decision, we refer to all of those parties as "interyenor" for ease of reference because the distinction among the parties makes no difference to our analysis. Page 4 1 2 J 4 5 6 7 8 9 Attachment 1 no net loss standard, has been the subject of multiple prior appeals. In Gould VIII, we concluded that a condition of approval that the hearings officer imposed in approving the Phase A-1 TP violated the right to public participation on whether the no net loss standard will be satisfied by mitigation water from sources not specified in the FWMP. Petitioner appealed our decision to the Court of Appeals. That appeal ultimately went up to the Supreme Court and retumed to the Court of Appeals, which affirmed our decision. 310 Or App 868, 484 P3d 1073. While the Phase A-l TP decision was climbing the appellate ladder, intervenor applied for the golf course site plan review. The county planning division administratively approved the application. Petitioner appealed that approval to the board of county commissioners, which approved the golf course site plan review with conditions. This appeal followed. INTERVENOR-PETITIONER'S ASSIGNMENT OF ERROR ORS 197.455 provides, in part: "(1) A destination resort may be sited only on lands mapped as eligible for destination resort siting by the affected county. The county may not allow destination resorts approved pursuant to ORS 197.435 to I97.467 to be sited in any of the following areas: "(a) Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. 10 11 t2 I3 l4 15 76 17 18 19 20 2l 22 23 24 Page 5 (c* t< ,F * tF 1 2 aJ 4 5 6 7 8 9 10 11 Attachment 1 "(2) In carrying out subsection (1) of this section, a county shall adopt, as part of its comprehensive plan, a map consisting of eligible lands within the county. The map must be based on reasonably available information and may be amended pursuant to ORS 197 .610 to 197 .625, but not more frequently than once every 30 months. The county shall develop a process for collecting and processing concuffently all map amendments made within a 3O-month planning period. A map adopted pursuant to this section shall be the sole basis for determining whether tracts of land are eligible for destination resort siting pursuant to ORS I97.435 to 197.467." 12 The county found that the subject property was determined eligible for 13 resort siting as part of the CMP approval and that ORS 197.455 is not a relevant 14 site plan review criterion. Record 45. 15 Intervenor-petitioner (Lipscomb) argues that, while the subject property is 16 mapped as eligible for destination resort siting by the county, the property is 17 nonetheless ineligible for destination resort siting because it is within 24 air miles 18 of the urban growth boundary for the city of Bend, which Lipscomb argues 19 currently has a population of more than 100,000. Lipscomb acknowledges that, 20 when the county's destination resort map was adopted, and when the CMP and 2l FMP were approved, the population of Bend was less than 100,000. However, 22 Lipscomb argues that relevant populations for purposes of ORS I97.455 must be 23 measured and determined at the time of site plan review. 24 Lipscomb argues that interpretation is supported by the use of the terms 25 "sited" in ORS I97.455Q) and "existing population" in ORS 197.a55Q)@). 26 Lipscomb argues that, while the CMP and FMP have been approved, the resort 27 is not "sited" for purposes of ORS 197.455 until site plan review. Hence, Page 6 Attachment 1 1 according to Lipscomb, ORS 197.455 is an applicable approval criterion for site 2 plan review of any phase of a resort. 3 Intervenor responds, and we agree, that Lipscomb's argument 4 misinterprets theplain language of ORS 197.455. ORS 197.455 requires counties 5 to inventory and map lands eligible for destination resort siting. The county 6 mapped and identified the subject property as eligible for destination resort siting. 7 Pursuant to ORS 197.455(2), the county's map is the sole basis for determining 8 whether the subject property is eligible for destination resort siting. 9 The limitations on resort siting in ORS 197.455(l) apply at the time that a 10 county adopts maps identifying lands eligible for siting destination resorts. After 1l a county has adopted such maps, the limitations in ORS 197.455(1) do not apply 12 to specific applications for destination resorts. Instead, the adopted maps control 13 whether a specific property is eligible for destination resort siting. Central 14 Oregon Landwatch v. Deschutes County, 66 Or LUBA 192,20I (2012); Eder v. 15 Crook County,60 Or LUBA 204,211 (2009). 16 Lipscomb also argues that the county failed to make adequate findings t7 supported by substantial evidence that the challenged decision complies with 18 ORS 197.455. Those arguments rely on Lipscomb's interpretation of ORS 19 I97 .455, which we reject above. Accordingly, we do not separately analyze those 20 arguments. 2l Intervenor-petitioner's assignment of elror is denied. Page 7 Attachment 1 1 PETITIONER'S FIRST ASSIGNMENT OF ERROR 2 Petitioner argues that the county misconstrued the applicable law in 3 approving the golf course site plan while the county's Phase A-1 TP approval 4 was pending review at LUBA and in the appellate courts. Petitioner argued to the 5 county that the location and layout of the golf course, lakes, and related open 6 space depend upon the configuration of the residential lots in the Phase A-1 TP, 7 which was on appeal and, thus, not final at the time that the county reviewed the 8 golf course site plan. Record 1253. 9 The county rejected that argument, explaining that the golf course site plan 10 and the Phase A-1 TP are separate applications for different development 11 activities authorized to occur in Phase A. Moreover, the Phase A-1 TP and the 12 golf course site plan are independent. The Phase A-1 TP authorizes the division 13 of lots. The applicable approval criteria for the golf course and inigation lakes 14 do not require that the property be divided.2 Each application was reviewed by 2The county found: "The subject site plan and the Phase A-1 [TP] application are separate development applications for different development activities authorized to occur in Phase A of the Thornburgh Resort. Each application was reviewed, as described below, as the third step in a 3 step process, and neither is dependent on the other. Each application was independently reviewed for its compliance with the FMP and relevant provisions of the [DCC]. One application was reviewed under tentative plan criteria and the other application was reviewed under site plan criteria. The fact that each application was required to establish that it complied with the FMP did not cause the Page 8 Attachment 1 1 the county for compliance with relevant approval criteria. See DCC 2 18.113.040(C) (providing that, in addition to establishing compliance with the 3 FMP, each development phase of a destination resort must receive additional 4 approval through site plan review or the subdivision process). 5 On appeal, petitioner argues that, if the configuration of the residential lots, 6 or other related development such as roadways, in the Phase A-1 TP is changed, 7 then the location of the golf course and lakes will likely have to be reconfigured. 8 Intervenor responds that, while the road system in the golf course site plan 9 is the same as the road system approved in the Phase A-1 TP, the golf course site 10 plan does not depend on approval of the Phase A-1 TP. Intervenor observes that, 11 even if the Phase A-1 TP approval is modified or denied on remand, the 12 subdivision of residential lots contemplated in the Phase A-1 TP can be 13 reconfigured around the approved golf course site plan, so long as both the golf 14 course site plan and the Phase A-1 TP comply with the approved FMP. 15 Petitioner's first assignment of error outlines practical problems that could 16 potentially arise from the timing and procedural posture of the Phase A-1 TP 17 approval and appeal, and the golf course site plan review. However, petitioner 18 does not assert, let alone demonstrate, that the county's approval of the golf 19 course site plan misconstrues any applicable site plan review criteria or that the 20 county's findings that the site plan review criteria are satisfied are inadequate or subject site plan to hinge upon the outcome of the Phase A-1 [TP] appeals as argued by [petitioner]." Record 11. Page 9 Attachment 1 1 unsupported by substantial evidence. Accordingly, petitioner's first assignment 2 of error provides no basis for reversal or remand. 3 Petitioner's first assignment of effor is denied. 4 PETITIONER'S THIRD ASSIGNMENT OF ERROR 5 FMP Condition 10 provides: 6 "Applicant shall provide, at the time of tentative plat/site plan 7 approval review for each individual phase of the resort development, 8 updated documentation for the state water right permit and an 9 accounting of the full amount of mitigation, as required under the10 water right, for that individual phase." Record 15. 11 The county imposed Condition 10 to ensure compliance with DCC 12 18.113.070(K), which requires intervenor to demonstrate that "fa]dequate water 13 will be available for all proposed uses at the destination resort." The resort's use 14 of water is governed by water rights and rules administered by the Oregon Water 15 Resources Department (OWRD). The county explained the genesis of Condition 16 10 as follows: "What is now FMP Condition #10 was first included in, and carried over from the CMP approved in 2006. By including the condition as part of the CMP, the [board of county commissioners] at that time overturned a finding by a County Hearings Officer stating that 'until the applicant demonstrates that it has enough mitigation credits to mitigate for 942 acre-feet of water (the estimated amount of consumptive use per OWRD), it is unlikely that the application will be approv"4.'[31 3 See OAR 690-505-0605(2) ("'Consumptive use' means [OWRD's] determination of the amount of a ground water appropriation that does not return Page 10 t7 18 t9 20 2l 22 23 24 I 2 aJ 4 5 Attachment 1 "flntervenor] appealed that Hearing Officer's decision to the fboard of county commissioners] arguing that mitigation water only needed to be provided when the water rights permit dictated, not prior to development of the entire resort. On appeal, fCentral Oregon Irrigation District (COID)I manager Steve Johnson argued that: "'The decision rendered by Hearings Officer Anne Corcoran Briggs last month implies that the Resort must bring all of the water to the table with the application. This decision, if left unmodified, will set a precedent that will artificially escalate the competition for water rights in the basin, and consequently drive the price up, and drive some farmers out. Her analysis of Water Availability on page 25 expressly conditions approval of the application on having the credits in hand now. Some of this water will not be needed for many years, and this policy, if followed, will be a waste of water, against the beneficial use doctrine that is the pillar of Oregon's water law policy.' "The previous lboard of county commissioners] agreed with [intervenor] and COID, and required fintervenor] through Condition 10 to provide mitigation water when required by the OWRD water right permit. "The previous [board of county commissioners] further found that prior to mitigation water being required by the OWRD water right permit, fintervenor] is only required to show it is not precluded from obtaining mitigation water as a matter of law. The previous [board of county commissioners] further for.rnd that fintervenor] had met that standard and had exceeded it by showing it was feasible atthat time to obtain suff,rcient mitigation water when required by OWRD. The current [board of county commissioners] agrees with and considers those previous findings as binding on the subject application." Record 15-16 (intemal citations omitted). to surface water flows in the Deschutes Basin due to transpiration, evaporation or movement to another basin."). Page l1 6 7 8 9 10 11 12 l3 74 15 t6 77 18 19 20 2T 22 23 24 25 26 27 28 29 30 31 Attachment 1 1 We understand petitioner to argue that the Condition 10 requirement that 2 intervenor provide "an accounting of the fuIl amount of mitigation, as required 3 under the water right," implicates mitigation water required to satisfr the no net 4 loss standard. Petitioner asks, "[W]here is [intervenor's] updated accounting of 5 the full amount of mitigation, relating to Whychus Creek as to fish and wildlife, 6 for this phase of the resort?" Petition for Review 16 (emphasis in original). 7 However, petitioner does not explain the premise that Condition 10 relates to 8 satisfaction of the no net loss standard. Accordingly, that argument is 9 insufficiently developed for our review. Deschutes Development Co. v. 10 Deschutes County,S Or LUB A218,220 (1982). 11 Moreover, to the extent that we understand the argument, we reject it. 12 Condition 10 requires "an accounting of the full amount of mitigatien, as 13 required under the water right." (Emphasis added.) Condition 10 is imposed to 14 ensure compliance with DCC 18.113.070(K), which is concerned with the 15 availability of water for resort use and mitigation for the resort's consumptive 16 use of water, which is related to but distinct from the fish and wildlife mitigation 17 plan that is required in order to satisfu DCC 18.113.070(D). 18 As we explained in Gould VIil, the resort's consumptive use of 19 groundwater is anticipated to impact an offsite fish-bearing stream, Whychus 20 Creek, by reducing instream water volumes and increasing water temperatures. 2l The FWMP requires intervenor to replace the water consumed by the resort with 22 water of sufficient quantity and quality to maintain fish habitat, especially cold Page 12 Attachment 1 1 water thermal refugia. FMP Condition 38 requires intervenor to "abide by" the 2 FWMP and "submit an annual report to the county detailing mitigation activities 3 that have occurred over the previous year." Record 34. Satisfaction of the no net 4 loss standard is ensured through compliance with Condition 38, not Condition s 10. 6 The county found that the provision of water to satisfy the FWMP is not 7 relevant to the review of the golf course site plan because intervenor did not 8 propose and the county did not approve any change to the FWMP as part of the 9 golf course site plan review. Record 13 (citing Gould VIII,79 Or LUBA at 583- 10 84). Petitioner does not challenge those findings. Accordingly, we agree with 11 intervenor that Condition 10 is concemed only with satisfaction of DCC 12 18.113.070(K) regarding the availability of water for resort use and mitigation 13 for the volume of consumptive use, as required by OWRD under the water right. 14 The golf course development will require water. There are no existing 15 natural streams, ponds, wetlands, or riparian areas on the site. The resort water 16 supply will be groundwater obtained from wells on the property. On April 3, 17 2013, OWRD issued intervenor a state water right permit, Permit G-17036, for a 18 quasi-municipal use of groundwater, which authorized intervenor to drill six 19 wells and pump groundwater for resort use, including the golf course and 20 irrigation lakes. OWRD granted 2,129 acre-feet of water rights to support the 2l resort development year-round. Under that water right, intervenor is responsible 22 for providing 1,356 total acre-feet of mitigation water. Permit G-17036 specified Page 13 Attachment 1 1 that completion of construction of the resort water system and application of the 2 water must be accomplished within f,tve years, by April 3,2018. Record 1696. 3 On April 2, 2018, intervenor requested an extension of Permit G-17036 from 4 OWRD. On June 5,2018, ORWD issued a proposed final order approving the 5 extension. On July 20, 2018, petitioner filed a protest of the proposed final order 6 and requested a contested case hearing. On October 26, 2018, OWRD issued a 7 final order allowing the permit extension without holding a contested case 8 hearing. Record 1697 . On January 3I, 2019, OWRD withdrew the Octob er 26, 9 2018 final order and referred petitioner's protest to the Office of Administrative 10 Hearings for a contested case hearing. That contested case hearing was pending 11 at the time of the county's decision on the golf course site review. Record 16. 12 In Gould VIII, petitioner argued that the hearings officer erred in 13 concluding that intervenor had satisfied Condition 10 for the Phase A-1 TP 14 because the record in that proceeding established that the water right had not beln 15 extended past its expiration date. We agreed with intervenor that, because water 16 mitigation is based on consumptive use, Condition l0 "requires proof of adequate 17 water rights and mitigation commensurate with the estimated consumptive use of 18 water for the development approved at each phase of development, and in 19 advance of actual water consumption." Gould VIII, 79 Or LUBA at 574. 20 Intervenor argued that petitioner's protest of the water right permit extension did 2L not render the permit void. We concluded that the hearings officer did not err in 22 construing Condition 10 to require documentation of the water right and that Page 14 Attachment 1 1 intervenor had sufficiently documented its water right, notwithstanding 2 petitioner's protest. Our decision was upheld by the Court of Appeals. 310 Or 3 App 868,484 P3d 1073. 4 Petitioner again disputed the status of intervenor's water rights during the 5 county's review of the golf course site plan. Petitioner argued that intervenor 6 could not satisff Condition l0 because intervenor's water rights permit had 7 expired and the extension was contested and not final. 8 The board of county commissioners interpreted Condition 10 as "primarily 9 * 'F * an informational requirement," adopting the hearing officer's interpretation 10 of Condition 10 as applied to the Phase A-l TP in Gould WII.Record 16. The 11 board concluded that Condition 10 was satisfied for the golf course site plan, 12 notwithstanding the ongoing dispute over Permit G-17036 in the OWRD 13 contested case proceeding. The county found that intervenor had documented the 14 full amount of mitigation water needed for the golf course site plan and had 15 provided documentation for the state water right permit. The county concluded 16 that Permit G-l7036 remains an effective and valid water right "unless and until l7 cancelled by OWRD" and observed that OWRD's water rights information query 18 showed the status of the permit as "non-cance11ed." Record 16'17. 19 Petitioner argues that the county misinterpreted Condition 10 and failed to 20 make adequate findings supported by substantial evidence because, according to 2l petitioner, the record demonstrates that the water right is expired and intervenor 22 therefore does not have a valid water right permit. Page 15 Attachment 1 1 The parties dispute our standard of review for the county's interpretation 2 of Condition 10. Petitioner argues that Condition 10 implements state law that 3 requires a permit for the use of water and, thus, the county's interpretation of 4 Condition 10 is not entitled to any deference. ,See ORS 537.130 (providing that, 5 generally, the use of water requires a permit from OWRD); see a/so ORS 6 197 .829(IXd), tr 4. Differently, intervenor argues that the county's interpretation 7 of Condition 10 is entitled to deference under ORS 197.829 and Siporen v. City 8 of Medford,349 Or 247,259,243 P3d776 (2010).4 9 ORS I97.829(l) requires LUBA to affirm a governing body's 10 interpretation of its own comprehensive plan provision or land use regulation 11 unless the interpretation is inconsistent with the provision or regulation's express 4 oRS t97.829(r) provides "[LI-IBA] shall affirm a local govemment's interpretation of its comprehensive plan and land use regulations, unless [LUBA] determines that the local government's interpretation: "(u) Is inconsistent with the express language of the comprehensive plan or land use regulation; "(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation; "(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or "(d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements." Page 16 Attachment 1 1 language, pu{pose, or underlying policy. ORS 197.829(1) generally does not 2 require LUBA to affirm a local government's interpretation of a prior land use 3 decision or conditions of approval attached to a prior land use decision. M & T 4 Partners, Inc. v. City of Salem, _ Or LUBA _, _ (LUBA No 2018-143, 5 Aug 14,2019) (slip op at I4), aff'd sub nom M & T Partners, Inc. v. Miller,302 6 Or App 159, L70,460 P3d ll7 (2020). To a "limited extent," LUBA will defer 7 to plausible interpretations of county land use regulations that the governing body 8 made in the course of interpreting a condition of approval. Kuhn v. Deschutes 9 County, 74 Or LUBA 190, 194 (2016). The deference question "reduces to 10 whether the city was interpreting a land use regulation," and a condition of 11 approval is not a land use regulation. M & T Partners, 302 Or App at 170. 12 Intervenor emphasizes that the county adopted Condition 10 to ensure 13 compliance with DCC 18.113.070(K). However, intervenor does not contend or 14 explain how, in interpreting Condition 10, the county interpreted DCC 15 18.1 13.070(K). Thus, the county's interpretation of Condition 10 is not entitled 16 to deference and, instead, we review it for legal effor. ORS 197.835(9)(u)(D). l7 As explained above, the county imposed Condition 10 to ensure 18 compliance with DCC 18.113.070(K), which requires intervenor to demonstrate 19 that "fa]dequate water will be available for all proposed uses at the destination 20 resort." Condition 10 requires intervenor to provide "updated documentation for 2I the state water right permit." While the legal effect of the OWRD contested case 22 hearing on intervenor's requested extension of Permit G-17036 is disputed, Page 77 Attachment 1 I petitioner has not established that, as a matter of law, Permit G-17036 is not a 2 valid water right. In that context, we cannot say that the county erred in finding 3 that intervenor provided the required documentation for the state water right 4 permit required by Condition 10. We conc.lude that the county did not err in 5 finding that Condition 10 is satisfied by documentation that Permit G-17036 is 6 not cancelled and an accounting of the amount of mitigation water needed for the 7 golf course site plan. 8 We further conclude that the county's interpretation of Condition 10 is not 9 "contrary to" ORS 537.130, which requires an OWRD permit for the use of 10 water. DCC 18.113.070(K) requires intervenor to demonstrate, and the county to 11 find, that adequate water will be available for all proposed uses for each phase of LZ development of the destination resort. Condition 10 requires intervenor to 13 provide documentation of the existence of a water right. The county is not 14 authorized to approve or regulate the actual use of water-that is OWRD's role. 15 In other words, county land use approval of the golf course site plan does not and 16 cannot approve the use of water and, thus, will not result in a violation of ORS 17 537.130. 18 Petitioner's third assignment of error is denied. 19 PETITIONER'S SECOND ASSIGNMENT OF ERROR 20 In the second assignment of error, petitioner argues that the county erred 2I in finding that petitioner's arguments regarding Condition 10 are improper 22 collateral attacks onthe FMP. Petitioner does not challenge any specific findings. Page 18 Attachment 1 1 Instead, petitioner points to a range of pages in the challenged decision. It is not 2 clear to us which findings petitioner challenges regarding collateral attack and to 3 which applicable site review criteria those findings relate. Condition 10 is the 4 only provision that petitioner specifically identifies. Petition for Review 12. 5 Interyenor responds that, to the extent that the county determined that some 6 of petitioner's arguments regarding Condition 10 and DCC 18.113.070(K) are 7 impermissible collateral attacks on the final CMP and FMP approval decisions, 8 those findings are alternative findings, and the county also addressed those issues 9 on the merits. We agree. We affirm the county's conclusion that Condition 10 is 10 satisfied under the third assignment of error. Accordingly, even if the county 11 erred in concluding that some of petitioner's arguments regarding Condition 10 12 are impermissible collateral attacks, those effors provide no basis for remand. 13 Petitioner's second assignment of error is denied. t4 The county's decision is affirmed. Page 19 o o Attachment2 THORNBURGH RESORT FISH AND WILDLIFE MITIGATION PLAN ADDENDUM RELATING TO POTENTIAL IMPACTS OF GROUND WATER WITHDRAWALS ON FISH HABITAT April 21,2008 E)(P[]RES: Prepared By: Newton Consultants, lnc. 521 sw 6'h Street, Suite t00 Redmond, Oregon 97756 Prepared For Thornburgh Resorts, LLC 2447 NW Canyon Drive Redmond, Oregon 97756 Projecl No: t007-r0l-07 o o Attachment2 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, ("Thomburgh") 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 L As a result of the determination of hydraulic connection, the water right approval requires Thomburgh to provide mitigation to offset projected flow reductions in the o'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. o I o Attachment2 o nI. 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 Rcsort are ticd to a phascd dcvclopmcnt plan. Watcr nccds wcrc cstimated 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 inigation 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 retum to surface water flows due to evaporation, transpiration or other factors. (See, OAR 690-505-0605(2).) o Maximum water use for the second phase of development (Phase B, or Full Build-out) is estimated at an additional l,l5l 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 of up to 2129 AF per year with a maximum withdrawal rate of 9.97 cfs. l. Estimated Phase A Water Use WATER USE PEAK RATE Golf Courses 1.94 cfslnigation 0.65 cfs Reservoir Maint 0.47 cfs Other Q/M 0.98 cfs Golf Courses 5.82 cfslrrigation 1.20 cfs Reservoir Maint 0.80 cfs Other Q/M 2.15 cfs ANNUAL VOLUME IST YEAR LATER YEARS CONSUMPTIVE USE 242 AF 63 AF I20 AF I85 AF 6IO AF CONSUMPTIVE USE 645 AF IITAF 206 AF 388 AF 360 AF I05 AF I44 AF 460 AF 269 AF I05 AF I44 AF 460 AF TOTALS 4.04 CFS t069 AF 978 AF 2. Estimated Full Resort Build-Out Water Use WATERUSE PEAKRATE ANNUALVOLUME 717 AF I95 AF 246 AF 97I AF 2 o Attachment 2 o TOTALS 9.97 CFS 2129 AF 1356 AF 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 Hydrologt of the upper Deschutes Basin, Oregon, " USGS Water Resources lnvestigation Report 00-4162,2001.) The study area is shown on Figure l. 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 l. 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 retum 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 inigation 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. ThornburghMitigationObligation 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 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 o J o o o Attachment2 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 determined 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 Thomburgh water right. The first phase of water development (Phase A) is estimated to require a maximum annual volume of 1,201 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 B is 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 "lncremental 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 Irrigation District (COID) and from Big Falls Ranch Inc. l. OWRD Mitigation for Phase A 4 o COID l(ater Rights o Attachment2 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 o'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 inigation water rights transferred to instream use. The quantity is based on the average consumptive use associated with irrigation in the Deschutes Basin.) The tiansfers 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. Thomburgh 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, Thomburgh will be entitled to acquire the remaining amount of mitigation needed to satisff its water right mitigation obligation through COID water rights. (A copy of the DIP has previously been filed with the County.) Big Falls Ranch ll'ater 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 ames 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 tr4nsfer 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 13l. 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. 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. o o 5 o o Attachment2 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 inigation 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 iemain 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 l3 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 y€ars, 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 transfened 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. Thomburgh 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 gtound water pumping. In recognition of these concerns, Thornburgh will not utilize this option. 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 remainingo 6 o o Attachment2 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 additional52l.82 AF per year from Deep Canyon Creek flow that otherwise would be diverted for inigation use. This water, along with that resulting from the transfer of 175 acres for Phase A mitigation, will be protected as instream flow trom 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. ry. 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 identifu and mitigate for the impacts of flow reduction as a result of new ground water pumping in the 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 Thomburgh 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. 7 o o o Attachment2 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 l" under the ODFW Fish and Wildlife Habitat Mitigation Policy ("ODFW Mitigation Policy", OAR Chapter 635, Division 414.) (Letter from Glen Ardt to Thomburgh, dated January 31, 2008.) Under the ODFW Mitigation Policy, Habitat Category I means the affected habitat is irreplaceable. In response to the letter, Thomburgh provided additional information to ODFW documenting the OWRD findings regarding the location of impact from Thomburgh 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 l. 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 635-4 t4-0025(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 findings by OWRD that the Thomburgh 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- going thermal modeling project on Whychus Creek or a suitable altemative enhancement project. Collectively, these measures will address ODFW mitigation policy requirements and ensure compliance with the County land use standard. 8 o A. Compliance with OWRD Mitigation Requirements o o Attachment2 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 inigation 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 10.4 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) witl come from a source that contributes cold spring-fed water to the Deschutes River above the Thornburgh location of impact. By retiring an existing inigation 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 lrrigation Pond In connection with the instream transfer of the Big Falls Ranch irrigation water right rights, Thornburgh will work with the landowner to eliminate the existing instream impoundment used as part of the irrigation system. This is expected to provide a temperature benefit by eliminating temperature increases due to ponding effects. D. Terminate Use of Existing 'rExempt" 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; cunently, 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 inigate 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 fbr 9 o o Attachment 2 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 inigation 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 leamed 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 identiff sources of stream heating and in tum 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, Thomburgh 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 I lot sales for the project. If the modeling project has already been completed at that time, Thomburgh will work with ODFW to identify an altemative 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 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 o o l0 o o Attachment2 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 warrn 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 inigation 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 Thomburgh'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, Thomburgh agrees that it will not rely on projects involving canal lining or piping to supply mitigation water and will provide all mitigation through the conversion of existing irrigation water rights to protected instream flow. By committing to fully 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 inigation pond that currently contributes to temperature increases. o ll o o Attachment2 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 Thomburgh'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 Thomburgh resort will be completely mitigated so there is no net loss or net degradation of the resource as required by the County code. o t2 Attachment 3 -I - TONKON TORPI Janet E, Neuman janet, neuman@tonkon.com 503,802,5722 direct 503,221,1440 main October 8,2018 HAND.DELIVERED Jacob Ripper, Senior Planner Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97703 RE: 247-18-000386-TP / 454-SP I 592-MA Dear Mr. Ripper: I. Introduction As you knowo I represent Mr. Kameron Delashmutt, Pinnacle Utilities, LLC, and Cental Land and Cattle Company, LLC (the "Applicant") on water rights issues. This letter provides final argument pertaining to water issues on behalf of the Thornburgh Resort project in the above- referenced Deschutes County land use proceedings. This submission supplements other filings made today on the Applicant's behalf by Ms. Fancher and Mr. Delashmutt. In his September 25,2018letterto the Hearings Officer ("Dewey Rebuttalu), Mr. Dewey, on behalf of his client, Ms. Gould, argues that the County should deny Applicant's tentative plan, site plan, and modified application because the proposal "includes fundamental changes from what was approved in the FMP and CMP." Ms. Fancher's submission addresses this argument as it pertains to the proposed development of housing, resort facilities, and transportation infrastructure, while this letter addresses the water issues. In order to provide the framework for the following discussion about water issues, it is important to distinguish between water quantity and water quality, especially with regard to issues of mitigation. As to water quantity mitigation, state law requires any new groundwater use in the Deschutes Basin to mitigate for the impact of a given volume of water use. OAR 690-505-0610. The method, amount, and timing of mitigation that is required are determined by the Oregon Water Resources Department ("OWRD") according to that agency's administative rules in OAR 690-505-0610 through 690-505-0625. Condition #10 to the FMP requires an accounting of the amount of mitigation required by the water right. This accounting is based on these rules. Mitigation of the impact to water quality is required by the County Code, DCC 18.113.070(D). The county's requirements for addressing water quality impacts-including impacts to water temperature, frsh, and wildlif*are incorporated in Conditions #38 and 39 to the FMP. Tonkon Torp ll"P I Advocates I Advisors | 888 5W Fifth Ave LUBA 2018.140 Record - Paoe 0164I Suite 1600 | Portland 0R 9720,1 | tonkoilrom Attachment 3 October 8, 2018 PageZ il. Water Quantity Mitigation Mr. Dewey says "[p]robably the most substantial change in the resort plans and CMP/FMP approvals [is] the Application's new water mitigation provisions" and that "[t]he significant changes . . . include the reduction of mitigation for Phase A from 610 AF to 203 AF and the timing of the mitigation from being in advance for each phase to being not until all cabins and facilities ate constructed and in use." (Dewey Rebuttal, p. 5-6; emphasis added by Mr. Dewey.) Mr. Dewey wants the County to believe that the Applicant is now proposing /ess mitigation overall and also proposing to provide mitigation only after developing full use of its water. That is absolutely not the case. As Mr. Dewey is aware, the applicable statutes and rules governing mitigation for water use in the Deschutes Basin require pro rata mitigation in advance of water use, no matter when that use occurs. The Applicant does not-and could not-reduce or postpone mitigation as Mr. Dewey claims. Mr. Dewey's reference to Ms. Fancher's September 11, 2018 letter to the Hearings Officer ("Fancher Open Record Letter") as the basis of this argument mischaracterizes her letter and ignores the more detailed discussion of this issue in Applicant's extensive submissions.l Ms. Fancher's letter simply stated a fact-that thefull amount of mitigation is only required once the resort is pumping thefull volume of groundwater authorizedby the water right. She noted that the mitigation takes place according to the OWRD rules and the permit-both of which require mitigation in an appropriate pro-rata amount to precede any phase of water use. (Fancher Open Record Letter, p. 4.) Mr. Dewey also argues that FMP Condition #10 requires mitigation on a different schedule than the schedule outlined in the Incremental Development Plan ("IDP') approved by OWRD in July of 2018. He says that Condition of Approval #10 addressed "the state water right permit, not future amendments . . . ." and that '[t]he OWRD water right permit approved prior to approval of the final master plan is controlling here . . . . not future modifications to it or amendments sought by the Applicant in order to avoid its earlier mitigation commitrnents." (Dewey Rebuttal, p. 7; emphasis added by Mr. Dewey.) Mr. Dewey's argument is wrong as a matter of fact and as a matter of law. First, as a matter of fagt, the resort's water right permit has not been modified or amended in any way. Permit G-17036 authorizes use of a maximum of 2,129 acre feet (AF) of water annually and requires annual mitigation of 1,356 AF for the maximum authorized amount of water use. I See, e.g., Neuman Letter of September I l, 2018, pp. 3-4; Neuman Letter of September 25,2018,pp.1-2;andNewton(McCoy)Letterof September25,20lS,includedatp. 118ofMs. Fancher's September 25,2018 Rebuttal Submittal for Applicant. -LUBA 2018-140 Record - Page 0165 -il- Attachment 3 October 8,2018 Page 3 That is what the permit required when the FMP was approved, and that is what the permit still requires today, by its explicit terms and conditions.' The only modification has been to the OWRD-approved IDP-as explicitly authorized by OWRD administrative rules and the permit-and only to change the pace of water use and thus also the pace of mitigation. The incremental development plan does not "avoid" the mitigation commitments. To the contrary, it implements the commitments. The current IDP lengthens the period of time over which the resort intends to develop its water use and the accompanying required mitigation. Instead of developing the entire resort in a fairly short period of time as originally plarured under more favorable economic conditionso the resort will be developed more slowly, over a period of approximately 18 years.3 Thus, the use of water will be less during the first few years and will increase gradually over a longer period of time. But the proposed amount of water use at full development, and the amount of mitigation required to offset that water use, are both the same as they have always been. Most importantly, the requirement for the appropriate increment of mitigation to be in place before using a corresponding amount of water is the same as it has always been. Second, as a matter of law, as the Applicant has explained in previous submissions, OWRD rules specifically authorize holders of quasi-municipal permits like G-l7036 to "satisfy a mitigation obligation by incrementally obtaining and providing mitigation to coincide with the incremental development of the permit, provided that mitigation is provided prior to each stage of development of the permit . . . ." OAR 690-505-0625(1). The permit holder is required to submit an incremental development plan to OWRD and report on the progress under the plan. OAR 690-505-0625(1)(a) and (b). Importantly, the rules allow the Department to "approve changes to an incremental development plan and related mitigation obligation" as long as the ' Th" permit further explicitly states that: "the permittee shall provide additional mitigation if the Department determines that average annual consumptive use of the subject appropriation has increased beyond the originally mitigated amount; the permittee shall provide mitigation prior to each stage of development under the permit; . . . the permittee shall seek and receive Department approval prior to changing the incremental permit development plan and related incremental mitigation; the permittee shall report to the Department the progress of implementing the incremental permit development plan and related mitigation . . . each year; and . . . the permittee shall not increase the rate or amount of water diversion before increasing the corresponding mitigation. "3 This is an even longer time frame than what was used in Mr. Newton's 2017 mass balance calculations for phased development. While the 2Afi analysis showed that phasing decreased the impacts of the resort's peak summer use on stream temperatures and fish habitat, the analysis was not relied on in the January 1, 2018 FMP decision, which considered impacts of the fulI development. See Exhibit A, p. 5, to the September 25,2018 email from Kameron Delashmutt to Jacob Ripper, submitted as rebuttal material, and the FMP decision of January l, 2018. -LUBA 2018-140 Record - Pase 0166 JI- Attachment 3 October 8,2018 Page 4 required mitigation is incrementally increased prior to any incremental increase in the amount of water diversion. OAR 690-505-0625(2). Mr. Dewey wants the County to disregard the OWRD rules and the permit provisions pertaining to incremental development plans, and to disregard the operative 2018 OwRD-approved IDP, even thoughthe rules and the plan are the very source of the Applicant's water quantity mitigation obligations. Third, as a matter of both fact and law, FMP Condition #10 does not support Mr. Dewey's argument. Condition #10 does not require the Applicant to do something different than what the permit, OWRD rules, and the IDP provide. In stating that the Applicant would provide "an accounting of the full amount of mitigation, as required under the water right, for that individual phase," Condition #10 anticipated phasing of the resort's water use and mitigation and acknowledged that the phasing of mitigation is contolled by OWRD. Mr. Dewey, however, wants the County to ignore the current OWRD-approved incremental development plan and hold the Applicant to an emlier incremental development plan that is no longer in force. Mr. Dewey's approach, if accepted, would allow the County to preempt OWRD's authority over quasi-municipal incremental development plans and require mitigation far in advance of the water use that it is supposed to be mitigating. Furthermore, the sequence of historical events does not support Mr. Dewey's argument. Mr. Dewey says "[t]here is nothing in Condition of Approval #10 to suggest that it was talking about anything but the mitigation plan that was in the Record and which was presented as the plan for approval in the FMP." (Dewey Rebuttal, p. 7.) The flaw in Mr. Dewey's argument is that Condition of Approval #10 could not possibly be referring to the FMP mitigation plans because those plans were not prepared until after the condition was written. The condition was originally included in the CMP approved by the Board of County Commissioners in May 2006, while the Incremental Development Plan was filed in2007 and the mitigation plans in 2008 when Thomburgh sought approval of the FMP. (See BOCC Case No. CU-05-20, DC No. 2006-151, May 10,2006 andNewton September 25,2018 Letter, supra note l.) It is notable that in November 2017 Mr. Dewey argued to the County that "phasing" of the use of water was "not relevant since the County Code requiring that any input be completely mitigated requires consideration of the Resort as a whole" and "even if phasing were somehow relevant, housing phases are irrelevant." (Exhibit A,p.2, Delashmutt September 25,2018 email, supra note 3.) Yet now Mr. Dewey argues that any change in the phasing of mitigation is so critical that it should trigger a new CMP. In this case, Mr. Dewey is arguing the exact opposite position to what he argued in November and has offered no explanation for why, In fact, the 2008 analysis of the efficacy of mitigation was based on the resort as a whole. The provision of mitigation water by phases was not considered in the analysis to demonshate compliance with the no net loss standard of DCC 18.113.070(D). While Mr. Dewey states that phasing was important to the CMP/FMP decisions he cites nothing in either decision that supports his claims. The only document he references is the ODFW letter of June 13,2008, but Mr. Newton's September 25,2018 letter showed that ODFW's analysis was also based on full water use and not on phased development. Phasing was irrelevant to the 2008 decisions. In any r LUBA 2018-140 Record - Page 0167 I Attachment 3 October 8,2018 Page 5 event, the important point is that the phasing of water use and the coordinated phasing of mitigation to precede that water use-whether associated with building houses or anyother aspect of resort development-are determined by OWRD under state law, not by the County. Mr- Dewey improperly raised new issues and new evidence in his rebuttal submittal. (Dewey Rebuttal, Exhibits AA and BB,) These items are out of order and should not be accepted as ih"y do not rebut any evidence the Applicant submitted. To the extent they are considered, the Applicant's response follows. Mr. Dervey says that Exhibit AA "point[s] out the lack of evidence of availability of mitigation water from COID and Big Falls Ranch." Exhibit AA shows no such thing-it is simply an email from a Mr. Arnold to watermaster Jeremy Giffin saylng that Mr. Amold could not finda record of mitigation credits from those two entities when he looked up Permit G-I7036 on the OWRD wgbsite. The applicant demonstrated during the review of the CMP that it is able to provide mitigation water, from these and other sources, including the McCabe land and the Deschutes Resource Conservancy ("DRC"). The mitigation is allowed to be obtained anywhere within the General Zone of lmpact. The record in this proceeding contains ample evidence supporting that sufficient mitigation is and will be available.. The approved 2018 Incremental vlitigation plan (attached to the August 24,2018 email from Jeremy Giffin) shows that the resort currently has provided 3.6 credits from the DRC Mitigation Bank. The September 25,2018 Letter from Tonkon Torp Attorney Al Kennedy states that the resort has enforceable contacts with COID. The letter from September 25,2018 from David Newton states the commitment by Cenhal Land to provide a pro-rata share of the mitigation used from Big Falls and to meet the scheduled dam removals pertaining to Deep Canyon Creek. Applicant's previous submissions confirmed that the resort has hundreds of acres of water rights, far in excess of the needs of the tentative plan and the initial phase of water development under the 2018 IDp. Exhibit BB is not identified and appears to be a fragment of some other document. Moreover, nothing in this exhibit rebuts any of Applicant's arguments or evidence pertaining to meeting its mitigation obligations with Deep Canyon Spring water (from Big Falls Ranch). As far as thi Tentative Plan is concerned, the Big Falls Ranch issue relates to near-term mitigation of project water quality impacts, as discussed further below. As to water quantity, the Big Falls Rancl water right is intended to be used by the Applicant for long term water quantity mitigation per the pro-rated amounts as outlined by Mr. Newton in the 2008 Wildlife Plan and the September 25, 2018 letter. The fact that the ranch has applied to fransfer its point of diversion in ihe near term from a surface water diversion on Deep Canyon Creek to a groundwater point of appropriation at an existing well located on Big Falls Ranch does not mean thit the water right carurot be used for quantity mitigation in the future. Transferring the water from Deep Canyon 9rytk to existing wells at Big Falls Ranch is consistent with the resort's planned mitigation. When the time comes and mitigation is required by the water permit, the Applicant has the right to obtain rights from the ranch and the ranch will reduce or eliminate an appropriate part of its water use as mitigation for the resort's water use. In the meantime, when the ranch'siransfer application is approved, it will no longer dam or divert any surface water from the creek. -LUBA 2018-140 Record - Page 0168 Til* Attachment 3 October 8,2018 Page 6 Removing the dams will lower the temperature of creek water and fully address the water quality issue for the Deschutes River. Until the resoft is ready to use any portion of the ranch's water right for quantity mitigation, the ranch will continue to irrigate, but from groundwater obtained from a well away from the creek, which can let all of the creek water flow to the river ilI. 'Water Qualify Mitigation Mr. Dewey contends that the Tentative Plan does not adequately address the resort's water quality mitigation obligations. As Mr. Dewey points out, Condition #38 to the FMP requires that the resort abide by, among other things, the April 21,2008 Fish Wildlife Mitigation Plan, the August 20,2008 M & M Plan [Mitigation and Monitoring Plan for terrestrial mitigation], and the August 11, 2008 two-page letter regarding Whychus Creek mitigation. All the documents that Mr. Dewey references were developed in consultation with or were reviewed by BLM and ODFW. The 2008 M & M Plan calls for extensive monitoring to occur annually, with reports to be issued annually after any mitigation occurs. The annual reports are to be provided to ODFW and BLM and are to cover a period of 5 years following the mitigation that was done. While the Applicant will indeed comply with all of those requirements, at this time these steps are yet required. The Applicant has submitted documentation that, as a result of its agreement with Big Falls Ranch, the dams currently used by Big Falls to capture and divert the water of Deep Canyon Creek for inigation will be removed, and the cold spring water will flow down the creek and into the Deschutes River. (See September 25,2018 Letter from Mr. Newton, supra note 1.) As noted above, the transfer of the point of appropriation away from Deep Canyon Spring may allow dam removal to occur sooner than outlined in the June 13, 2008 ODFW leffer and the Newton Fish and Wildlife Mitigation Report of April, 2008, thereby providing additional benefits. The Applicant previously submitted documentation pertaining to its acquisition of 106 acre feet of mitigation water from the Three Sisters Irrigation District which resulted in Condition 39 of the FMP. Under condition 39, the Applicant must show that the water has been restored prior to pumping of water for Phase A but the Applicant is not required to address this issue during the review of the tentative plan, The sufftciency of these measures to mitigate the impacts to Whychus Creek was recently upheld by LUBA in August of 2018. Gould v. Deschutes County, _ Or LUBA --- (LUBA No. 201 8-008, August 21 , 201 8). As to both water quantity and water quality mitigation, the Applicant has shown that the slower development currently planned will result in lesser impacts to surface flows and the sunounding groundwater. During the2017 remand of the FMP, Mr. Newton submitted documentation that extending development of the use of water over 16 to l8 years, as currently planned, reduces the impacts to water quality by reducing temperature impacts. (See supra note 3.) Furthermore, as discussed below, the impacts to surrounding wells will be mitigated for by compliance with Condition t I of the CMP concerning the well indemnification agreement, discussed below. LUBA 2018-140 Record - Pase 0169 -il- Attachment 3 October 8,2018 PageT IV. Well Interference Ms. Gould and a number of other landowners continue to raise concems that the resort's pumping of groundwater will have an adverse effect on their wells, even though, like Ms. Gould, many of these landowners live at a considerable distance from the resort's planned wells. This issue has been fully addressed by both OWRD and the County. When OWRD issued Permit G- 17036,it determined that water was available for the requested use and that no other rights would be injured. The County has found that the Applicant has complied with Condition # 11 of the CMP. LUBA said that the "county contends that Thornburgh voluntarily subjected itself to this condition as part of a good faith effort to address the concerns of neighboring well owners": and "that condition 11 does not affect the county's finding that Thornburgh's wells will have no measurable effect on off-site wells and that the mitigation that will be required of Thomburgh will operate to protect those water users. We agree with the county." 54 Or LUBA 205,263 (2007). At that time, LUBA noted "[t]o mitigate for the 2355 acre feet of water, Thomburgh will need 942 mitigation credits" (acre feet of mitigation water). Id. at264-65. Since then, as is provided in the Thornburgh water rights permit, the Applicant has reduced its planned total water usage by more than l0% to 2,129 acre feet and increased its mitigation by 44Yo to 1,356 acre feet. These changes were made in response to these and other concerns regarding its groundwater permit application. V. Conclusion The Applicant has carried its burden of proof conceming water issues. The Applicant's extensive submissions demonstrate that the Applicant has met all of the FMP requirements applicable at the Tentative Plan stage for water quantity mitigation and water quahty mitigation, and has more than addressed concerrui about possible well interference. Sincerely anet E. Neuman Senior Counsel JEN/jw 035992/0000 1/93659 I 6v 1 LUBA 201 8-140 Record - Page 0170 r Attachment 4 fanet Neuman :qiE TC,NKONfrl TORp,," sENt0R c0uNSsr janet.neuman@tonkon.com 503.B02.5722 direct 503.972.7 422lax LEGAI STRVICES Water Law Environmental & Natural Resources Sustainability Law EDUCATION J.D. Stanford Law Sdrool, 1979 8.A., swnma cun laude Dmke Univasrty, 1975 Member, Phi Beta Kappa BAR & COURT ADMISSIONS Oregon State Bar Minnesota State Bar, lnaciive AWASDS & RI(OGNITION The Best Lawyers in America 2011-2021, Water Law 2013, Lawyaof theYmr- WaterLaw Podiand Chambers USA: America's Leading Lawyers 20 1 B-2021, Environ ment Oregon State Bar 2019 Environmental and Natural Resources Section Award PROFESSIONAL MEMBTRSHIPS American Bar Association Multnomah BarAssociation Oregon Women Lawyers (OMMUNITY INVOLVEMENT I ACT|VtTttS 0regon State Parks Foundation Member, Board of Trustees Columbia Basin Water Transactions Program 2011-2015, Technical Advisory Committee The Freshwater Trust 2008-2016, Board of Directors Representation of clients in contested case water rights proceedings before Water Resources Department. Water rights due diligence for large property transaction Representation of landowners in water rights transactions and disputes. Advice to agencies and property owners on public rights in navigable waterways. Presentations & Publications Co-author, "Waler and Growing Cities: A Survey of Weslern State Water Requirements for Urban Development," Dividing the Waters General Conference, Waco, TX, Nov.2017 Preparation of white papers on climate change adaptation for coastal communities. Review of water rights valuation studies for funding agencies. Preparalion applications for water righis and water rights transfers. "Drought and Floods in Oregon: Plan Now or Pay Later," Oregon Environmental Council Business Forum, Portland, OR, May 2016 Jan is Senior Counsel with Tonkon Torp's Water Law and Environmental & Natural Resources practice groups. She represents clients in a variety of water and natural-resource-related matters, including obtaining, transferring, and protecting water rights for both groundwater and surface water. Jan is considered one of the foremost water law specialists in Oregon and is nationally recognized as a water law scholar. She is also a frequent speaker and writer on water law and policy. Jan has many years of experience with water and natural resource law and policy issues and a wealth of connections with agencies, water management entities, policy makers, and water leaders. She approaches issues with a problem-solving approach. From 1 992-201'l , Jan was a tenured Professor at Lewis & Clark Law School, where she taught Water Law, Administrative Law, Property LaW and other natural resource classes. She was also Associate Dean of Faculty and co-director of the Natural Resources Law lnstitute and the Northwest Water Law & Policy Project at Lewis & Clark. Prior to her academic career, Jan was Director of the Oregon Department of State Lands - the agency responsible for management of Oregon's common school fund lands and natural resources. Before working in state government, at the beginning of her legal career, Jan practiced litigation at Tonkon Torp and at the Gray Plant firm in Minneapolis. Representative Matters Attachment 4 Oregon Board of Forestry 1998-2002, Appointed by Governor John Kitzhaber 0regon's lntegraled water Resources Strategy 2010-2012, Policy Advisory Group 0regon Water Trust 2005-2008, Advisory Board 1993-2005, President Oregon Watershed Enhancement Board Land and Water Acquisitions 2012, Workgroup Western Water Policy Review Advisory Commission 1995-1998, Appointed by President William Clinton Wilson High School Consiitution Team 2012-2013, Co-Coach "Farmer v. Farmer: EVWD v. Jaquet and Water Storage," Hot Topics in the Development of New Water Storage, 24th Annual Water Law Conference, The Seminar Group, Portland, OR, Nov. 2015 "Planning for Drought and Managing Conflict," Drought in the American West: A Symposium on Law, Policy, and Science, University of Oregon Environmental and Natural Resources Law Center, Eugene, OR, Sept. 2015 "ls lt Time for a Federal Water Policy?" 33rd Annual Water Law Conference, American Bar Association, Denver, CO, June 2015 "Climate Change/Sustainability of Water Supplies," Oregon Water Law Conference, the Seminar Group, Portland, OR, Nov. 2014 "Wells & Septic Systems," Stewart Title Educational Session, Oregon City and East Multnomah County, OR, June 2014, "ls Western Water Law Sustainable?" OSB Sustainable Future Section, Portland, OR, Jan. 2014 "Water Management Under Climate Change Scenarios," Climate Change lmpacts in ihe Pacific Northwest, Metcalf lnstitute for Marine & Environmental Reporting, Seattle, WA, Sept. 2013 "Realizing the Goal of Water for Life: Lessons From Around the World," Lewis & Clark Law School and National Law University of Delhi, New Delhi, lndia, May 2013 Co-chair and moderator, Future of Water Supply and Management in the Pacific Northwest, Portland, oR,2013 "Water Wars: Mediating Water Rights Disputes," Vanderbilt Alternative Dispute Resolution Program, Vanderbilt Law School, Nashville, TN, Mar. 2013 Oregon Water Quality Conference, Environmental Law Education Center, Portland, OR, 2013 Nalional Land Conference, Denver, CO 2012 Co-chair and speaker, Future of Water Supply and Management Conference, Portland, OR, 2012 "Western States'Water Planning," The Water Report, May 2011 "Preserving Bull Run: Looking Deeper inlo Portland's Water Variance," The Oregonian, Dec. 2011 "Oregon Water Law: A Comprehensive Treatise on the Law of Water and Water Rights in Oregon," 2011 Water in the Columbia Basin Conference, Skamania, WA, 2011 Oregon Water Resources Congress Water Law Conference, Bend, OR, 201'l Public lnterest Law Conference, Eugene, OR, 2011 The Water Spot Television Show 201'1 "Survey of Oregon Water Law in 6 Waters and Water Rights," 3d ed.2010 Co-aulhor, "Seeking a Shared Understanding of the Human Right to Water: Collaborative Use Agreements in the Umatilla and Walla Walla Basins of the Pacific Northwest," 47 \Mllamette Law Review 361, 2011 'Are We There Yet? Weary Travelers on the Long Road to Water Policy Reform," 50 Nat. Res. J. 139, 2010 Portland City Club Friday Forum, 2010 Northwest Water Law Symposia, Portland, OR, 2009 and 2010 Oregon Water Law Conference, Portland, OR, Keynote, 2009 "Chop Wood, Carry Water: Cutting to lhe Heart of the World's Water Woes," 23 J. Land Use & Envtl. Law 203, 2008 "Thinking lnside the Box: Looking for Ecosystem Services Within a Forested Watershed," 22 J. Land Use & Envtl. L. 173,2007 Co-author, "Remembering Rain," 37 Envtl. L. 105, 2007 Co-aulhor, "Sometimes a Great Notion: Oregon's lnstream Flow Experiments," 36 Envtl. L. 1125, 2006 "Dusting Off the Blueprint for a Dryland Democracy: lntegrating Water Supply and Watershed lntegrity into Land Use Decisions, in Wet Growth: Should Water Law Control Land Use?" 35 Env. L. Rep. 102236,2005 "31* Ionkon Torp ILP I Advocates & Advisors | 8BB 5W Fifth Ave. I Suite 1600 | Portland, 0R 97204 | tonkon.com Attachment 5 Kameron Delashmutt From: Sent: To: Subject: HENDERSON Sarah A * WRD [Sarah-A.Henderson@oregon.govl Monday, September 09, 2019 3:14 PM Kameron DeLashmutt RE: surface diversion transfer to groundwater appropriation Hi Kameron, Please see my response below in red... I am directing you to others so that you receive the correct information Sarah ,F*:$!3,F*{.*{(****,1.'F***i.'1.**!***********'k,1.!k:l*****!****!t************ Sarah Henderson Flolv Restoration Program Coordinator Transfer and Conservation Division Water Resources Department | 725 Summer St. NE, Suite A I Salem, Oregon 97301 Pir: 503.986.0884 | Fax: 503.986.0901 fmail:@lweb:@ * ****** ** ************'!*****,1.*x* ******,k****.*******'lc*.*:**tt,k**:f * From: Kameron DeLashmutt <ka meron @bendcable.com> Sent: Monday, September 09, 2019 2:53 PM To: HENDERSON Sarah A * WRD <Sarah.A.Hendeison@oreson.gov> Subject: surface diversion transfer to groundwater appropriation Sarah, ln our conversation with ODFW the other day you confirmed that a transfer of the Big Falls$urface water point of diversiontoa groundwaterpoint of appropriation does not changethe underlying permit and thatwhen OWRD issues new certificated to Big Falls that those certificates will be for surface water permits. I would appreciate your confirming that I have this correct. Yes, the confirming certificates issued from the transfer of a sw pod togw poa will be considered surface water rights. Also if you could send to me the legal rules or policy positions that place the moratorium on the issuance of new surface water permits in the Middle Deschutes Basis I would appreciate it. From Kyle Gorman I understand that there is both a limit on new surface water permits because the river is over allocated and also that there is a ban on new surface permits for use in the summer months for any tributary to the Columbia River. lf you could provide that info or direct me to it. Please contact Dwight French for this information (Dwisht.W.French(aoreeon.qov ) Lastly I understand ODFW has a application for 250 cfs of instream water in the Deschutes. Where could I find a copy of that application? Please contact Patricia McCarty for a copy of the application l5-70695 (Patricia.E. McCa rtv@oreeon.gov) Thank you for the help. Sincerely, Kameron Delashmutt s41-3s0-8479 (P) 866-492-s3s4 (F) LUBA 2019-136 AMENDED RECORD - Page 0754 Attachment 6 r -T ll.,\. Il,t ,{)\'.l l Nr;lNl.l lllNli I Sl'll\'l Ylr'(;, t.l.r 1180 Swul(a ioed, Redmond, OR J41-9It.755a rvrvrv.ham.engr.com September 25, 2018 Deschutes County Hearings Offfcer Deschutes County Comrnunity Development Departrnent 117 NW Lafayette Avenue Bend, Oregon97703 CENTRAL I.ATID AND CATTTE APPLICATIONS FOR THOf,NEURGH RESORT TENTATIVE PI.AI{(suBDtvtstoill AND strE pLANS; FtLE trO'S 247-18-0003s6.Tpl454.Sp/542-MA REBUTTAL OF PAUL DEWEV TETTER DATED SEPTEMBER 11, 2018 Dear Hearlngs Offlcer: This memo responds to comments made by Paul Dewey, attorney for Nunzie Gould in a letter dated November 11, 2O18 to the Deschutes County Hearlngs Officer in regard to the Thornburgh Resort (the Resort) applications for Tentatlve Plan (subdivislon) and Site plans. My focus is on those issues that warrant clarity consldering statements made by Mr. Dewey relative to ltem lll of his letter relative to Fish and Wildlife Habltat Mitigation Plans and ttem tV of his letter relatlve to Additlonal Water Quantity and Quality Mitigatlon lssues. I will also respond to select other comments offered in oppositlon as noted hereln. Responses are based on my professlonal experience of 40 years as a registered engineering geologist, clvll engineer and certlfled water rlghts examiner in the State of oregon. Much of thls experience ls with water rights and water supply development, includlng 14 years of water rights services for the oregon Water Resources Departm€nt (OWRDI through a contract between the oWRD and Newton Consultants, lnc, I prepared the "Thornburgh Resort Fish and Wildlife Mitigation Plan Addendum Relating to Potential lmpacts of Ground Water Withdrawals on Fish Habltat" dated Aprll 21",2OO8, that Mr. Dewey attached as Exhlblt 2 of his November 1I,zOLg letter. 7 L EXHIBIT H L u BA 20 1 e - 1 3 6 A M EUpl*.fi-E fiR$p"6? ?q9"1f64 Attachment 6 Mr. Dewey claims that changes to the Resort's phased devetopment plan and the OWRD- approved incremental development plan assoclated with lts water rlghts permit wlll result in a substantial change to the Fish and Wildllfe Mltigation Plan that will reguire modlflcatton of the CMP. This is not true because the changes are reflnements of the original phased development plan which conslsted of two basic phases, with 7 sub-phases divided between them, lncremental water use for each sub-phase, and lncremental mitlgatlon ln advance for each sub-phase. The current phased development plan, water use and mltigation follow the same prlnclple, nature and course as the orlglnal plan. The current plan does not contradict the origlnal plan. The effectlveness of the planned mltigation is not changed. The current plan ls consistent with the prlnciple and course of the original plan. DEWEY lrEMs lll & lv- Flsh and wildltfe Habitat Mltlgation plans Thornburgfi Resort Wildlife Mitigation Plan & Addendum The origlnal 'Thornburgh Resort Company, ILC Wildllfe Mitigatlon plan for Thornburgh Resort, dated April 15, 2008, was prepared by Tetra Tech EC, lnc. Subsequently, Newton Consultants, lnc. (Newton) prepared the "Thornburgh Resort Flsh and Wildltfe Mltlgation Plan Addendum Relating to Potential lmpacts of Ground Water Withdrawals on Flsh Habltat, dated Aprll 21, 2O0g (the Addendum). The 2008 Addendum by Newton ldentified measurer to be imptemented by the Resort in response to mitigation obligations that lt faced and that it accepted. These measures are presented on page 8 in Section V of the Addendum. They are: (A) Compliance with OWRD mltigation requirements; and (B| lnclusion of the Big Falls Ranch water rights as part of the OWRD mltigation program to provide additi<inalcold water benefits; and (Cl Removal of an irrigation pond in connection with the transfer of the Big Falls water rights; and (Dl Ellmlnatlon of exlsting ground water uses on the Resoft property; (E) S10,000.00 of funding of geothermal modeling for Lower Whychus Creek or a slmilar project. The Addendum plan committed to: l) providing the quantlty of mitigation water required by OWRD according to OWRD rules (some quantity of which would come from Blg Falls Ranch) and; ii) addressing water quality issues ln order to demonstrate compllance with the County's ,'no net loss" code requirement for destinatlon resorts by allowing the water from Deep Canyon Spring (the source of the Big Falls Ranch water) to flow unimpeded from the springs source to the ;lirii?'\:irl..l(,1 rll:\i)l'l iiii.l,,tir: i rt I tri.1i I iLi: r,t "; .. ,lii i. ,r,j ti J i rl EXHIBIT H L u BA 20 1 e - 1 36 AM EuffA.E-EfifiSp"id??qg"1f4?t Attachment 6 Deschutes River. The issue of quantity vs. quality Is discussed in further detail under Mr. Dewey's argument ltem lV, below. Original Development Phasing and Water Use (20071 & Tetra Tech Analysls of Mitigation Effectiveness ln January 2OA7, ft was expected that the Resort would build out quickly. Accordingly, development planning included the objective of meeting lts OWRD mltlgatlon obligations in two development increments with 7 sub-phases is noted ln the lncremental development plan (lDP) submltted at that time. That plan was described in the April 2008 Addendum by Newton; however, lncremental development was not considered ln determining whether proposed mitlgation met water quantity or water quallty requlrements. lnstead, the effectlveness of the proposed mitlgation was assessed for fish habitat purposes based on full Resort build-out, wlth full water use allowed under the ground water permit, and wlth full mltlgation in place, This analysis was conducted by fish biologists at Tetra Tech Eg lnc., desplte the fact the incremental development plan was planned to occur ln two phases with mltlgatlon belng provlded ln advance of any water use for each Phase. In phased development, water use lncreases over time as a glven phase ls developed, until the maximum ground water withdrawal rate forthat phase ls reached. However, the full mitlgatlon obllgation for the phase must be met prior to any ground water wlthdrawals. Therefore, mitigation exceeds the consumed water use at the phase beglnning and matches the consumed water use when the full amount of ground water withdrawal for the phase is reached. Thls incremental increase in water use in a given phase when full mltigation for the phase is in place was not consldered by Tetra Tech ln lts analysis of water quallty {temperature} impacts, ln other words, the "excess" mitiBatlon resultlng from provislon of full mitigation in advance, while real, and beneficlal as the evldence showed ln the 2017 FMP remand case, was not relied on to meet the water quality requlrements of the "no net loss" test. The Mitigation Plan provides flexibility for changes to the lncremental Development Plan (lDP) because it promises compliance with OWRD mitigatlon requlrements that allow changes wlth the caveat that all water needed for each increment of development be provided upfront' Wlth a revised plan, mitigation will continue to be provided before ground water wlthdrawals by the Resort and before withdrawals can lmpact the temperature of area creeks and rivers, The Resort's ground water permlt requires that mltigation water must come from the General Zone of impact (anywhere in the Deschutes Basin above the Madras tage, located on the Deschutes River below Lake Billy Chlnook). EXHIBIT H L u BA 20 1 e - 1 36 A M EUPI* fi _E fifiSP";dB ?gg"1ffig Attachment 6 Amended lncremental Development Plan The Resort,s current amended IDP reduces the amount of ground water use, and related consumptive use, in the early years of development. Ground water use increases more gradually by development phase than the original IDP (2007 IDP) until lt reaches its full rate and volume of use authorized by the permit, While this change has no lmpact over the end result at full build- out (no change to the total amount of ground water wlthdrawal or the total amount of mitigationf, it does reduce the amount of ground water withdrawal in the early years and spreads the gradual tncrease ln ground water withdrawals and the potentlal impacts of the withdrawals over a longer period of tlme. Thls pattern of staged water use and related mltigation is consistent with the quasi-municipaltype of ground use authorized for the Resort. Relevont Law The Resorts ground water permlt ls for quasi-municlpal uses of water. Quasl-Municipal water rlghts allow development of water uses and related rnitigation commensurate wlth those uses ln stages. OAR 690-505-0625 saYs: (1) Municipal or quasi-municipat ground water permit appllcants may satlsff a rnitigation obligatlon by incrementally obtaining and providing mltigation to coincide with the incremental development of a permit, provided that mltigation is provided prior to each staae of development of the-aermlt...... Munlclpal or quasi-municlpal Sround water permit applicants lnterested in incremental mltigation shall: a. submlt an lncremental development plan to the Department..,. (2) Appllcants or permit holders subiect to this rule may request that the Department approve changes to an lncremental development plan and related mitigation obligation. An applicant or permit holder subject to thls rule shall not lncrease the rate or amount of diversion before lncreasing the corresponding requlred mltlgatlon." The OWRD provides the holders of Munlclpal and Quasi-Municlpal water rights substantial flexlbility to develop and amend their ln*emental Development Plans to respond to market forces and timing of the development of water use. Page 3 of the Resort ground water permit states: 'The permlttee shall seek and receive Department approval prior or changing the incremental development p|an....,", and: "The permittee shall not increase the rate or amount of water diversion before increasing the corresponding mitlgation", and: 'The permittee shall provide mitigation prior to each staae of development undet-the-Ee!mlt""'!' Both the law and the permit require that development of water usage has a corresponding al to the consumptive fractlon of water use. Changlng the IDP doesn't EXHIBIT H 4 amount of mitigation equ L u BA 20 I e -136 AM EUAX{,E_q fiftSP"6q?99"1f64 Attachment 6 change the permit or the mitigation. lt slmply changes the timing of the development of the water uses under the permit and as a result changes when the mitigation would be due for the development of that use. Whatever the volume of water use and consumption, and whenever this occurs, there is always a correspondlng volume of mltlgatlon, and tlme of mltigation, that must be completed. A change in the IDP and related water use goes hand in hand with the required mitigation obligatlon. The principle and course of the updated IDP is the same as the original 2007 ,DP, with no contradiction and no basls for a revised CMP. Mltigatlon planned by the Resort accounts for both the water quantity and the water quality obligations. Mitlgation will be provided by the Resort in advance of any ground water wlthdrawals for both the OWRD water quantity obligation and for the water quallty obllgation based on the Wildlife Mitigatlon Plan and the Addendum. In both cases the mhlgation obligatlon is tied to water consumption. Relevant Considerations - 2007IDP & 2018IDP The 2007 IDP dlscussed ln the 2008 Newton Addendum was proposed to occur ln two in$ements; however, the two increments conslsted of several sub-phases. At the tlme, the FMP contemplated seven phases of development. The first of the seven phases of the CMP/FMP were anticipated to develop quickly glven the fact the Resort had over 560 lot reservations by the end of 2005. The 2007 IDP provlded that lts second increment could also be broken down into smaller increments, or sub-phases. See, page 2, Attachment 1, 2007lDP). The IDP stated thatwaterforthe second incrementwould be needed by 2009 but no water was developed in that timeframe because of ongolng land use appeals and the economic collaPse. ln Aprll 2018 the IDP was arnended to reflect new economic conditions. The 2018 IDP calls for the development of water and its resultant use from 201E to 2035 a span of 17 years. The prlor ZOOT tD? was based on an expected full use of water authorized by the ground water p€rmlt ln a perlod of 5 years. The 2018 IDP is based on much more gradual increase ln rate of water use and related potential impacts. Water use, consumption and mltiSatlon are spread over tlme in smaller increments, The IDP doesn't reduce the amount of mitlgation as mitigation ls always tied to water use specifically the consumptive use of water and the mitigation ls always provided prlor to water use. EXHIBIT H J L u BA 20 1 e - 1 3 6 AM EUAX* fi _q fiR$P"tuB9gg"1ffig Attachment 6 Response to Gould Arguments Gould uses the Resort's lawful use of OWRD rules pertalnlng to changes in the incremental development plan as a basls for requiring a revised CMP, Gould claims: 1, The Applicant proposes "altering the requlrement for mitigotion in Phases A ond B wtth four - live year periods of incremental mltigation". ,.,, Thot "by ltself constltutes o substontialchange requiring a revised CMP..," (P9.3) That comment overlooks the fact that no mitigation is needed if there ls no impact. As described above, the only change contemplated by the 2018 IDP ls to make the development and use of water more gradual, dolng so over roughly twenty years instead of ln a perlod of five years. Reduclng the use in any incremental stage naturally reduces the volume ol consumed water and the correspondlng volume of required mitigation. ln no case wlll there be an lncrease in the use of water without a corresponding increase in mitigatlon. The ratlo of water consumption to mltigatlon requlrement is constant. The change in the IOP simply changes the volume of water use and consumption, and volume of mitigation required over time. The net effects of water use remaln proportionate to the rate of use. This ls conslstent wlth the requlrements of both OAR 690-505 and the Resort's ground water permlt. Thls ls also consistent with the princlple and course of the orlginal 2007 lDP. There ls no contradlction here and the principle and course of development, water use and mitigatlon is consistent with the original course of phased water use and related phased mitlgation, Since 2012 the Resort has, and contlnues to provide mitigation even though no water use has been made under its ground water permlt due to reasons given above. As noted by Jeremy Giffin, OWRD, the Resort has been provlding mitlgation water for years without pumplng any water under its permit (Jeremy Giffin email, 8124/2oL8l' Lastly, Gould claims the changes to the 2007 IDP require a revised CMP, The 2007 IDP which listed the two Stages of water development was submltted on January 30,2A07 - The CMP was approved by the Board of County Commissioners on May 5, 2006. Neither the 2007 IDP nor the 2008 mitigatlon plan which referenced the 2OO7 IDP were a part of the CMP approval. Gould claims: 2. ,.. thts fundamental change in the OWRD mltigotion hos not been mude svqlloble to the public for comment ln thls destinotion resoft opproval process ond by itself constitutes o substanttal change requlrlng o new CMP.."' (Pg' 3) Gould has offered numerous comments on the amendment to the lncremental Development ptan in the public process for this Tentative Plan, Her comments are largely the purpose of this rebuttal memo. As noted above, ln the previous actions on the FMP, the Resort introduced I I iURi\llJl,i{all lt[lOfi f - Rl:l][, i L'ri i:\'. i 1r,t.''i, i I ;'i ; ; 1+ 5[P llrl/',iutH 2\ ]{ii B 6 EXHIBIT H L u BA 20 1 e - 1 3 6 A M EUAX*.ft_E fiftSP"6ts ?qg"1f4?E Attachment 6 substantial evldence that dealt with the timing of development of water, when the Resort anticipated doing so and when water would be used according to an incremental developmentplan. Gould had ertenslve opportunity to respond to that evidence then but did not, As noted above both the 20A7 DP and the 2008 Mitigatlon Plan were not prepared until after the CMp approval. Gould also claims: 3. "oDFW's letter of June 73, 2008, indicating occeptonce of the mtttgotlon made cleor that its oplnlon was hased on the promised timing." (pg.+) The ODFW letter does not rely on the "promised timing" of rnltigation in its acceptance of the mitigation plan' With one exception (discussed in #4 below), thls statement seems to relitigate lssues presented and settled as part of the approval of the FMp. The ODFW letter makes three lmportant statements: 1) "The Wildlife habitat lrnpacr assessment (WHIA) submitted by the Resort in their Final Master Plan is the most complete WHIA completed for the slting of a destination resort ln central Oregon;" 2l "To lmprove the feasibility that the mitigation measures will be implemented as described, there are provislons withln the Wildlife Mitigation Plan to help Deschutes County, the regulatory agency, ODFW and BLM track lrnplementatlon;" and 3l"ODFW has determined that provldlngthe proposed mitlgation outlined above (in lts letterlshould mitigate for potentlal impacts on springs and seeps and provide a net benefit to the resoLlrce." This last statement is based on ODFW consideration of mltlgatlon based on full bulld out of the Resort (last paragraph, page 2), not phasing of development, water use and related mitigatlon. Phasing ls mentioned in paragraph 2, page 2 of the letter in a statement on how the Resort plans to use water ln two phases. No tie to phaslng is made in the letter as to ooFW's conclusions about the effectiveness of mitigataon relative to potenflal impacts on springs and seeps. The statement by Mr. Dewey lpage 4, paragraph 4) "ODFW's letter of June 13, 200g, lndicating acceptance of the mitigatlon made clear that its oplnion was based on the promised phasing,' ls not true and is mlsleadlng, whether intentional or otherwise. While ODFW mentions phasing in lts letter in a statement of understanding the Resort development plan, it ls clear from what is sald that lts conclusions that mlilgation wlll be effectlve ls based on water use and mltigation at full Resort bulld out, not on the phasing of the mitigation, A key statement in the letter is: "','the mitigation water from the springs in Deep Canyon Creek exceeds the flows needed to mitigate for potential spring and seep impacts from the development (1.97cfs vs. 1.g7 cfs)." EXHIBIT H L u BA 20 1 e - 1 3 6 AM EU#A fi -E fifiEp"'1? ?qg"1ffig Attachment 6 Those figures, the 1.97 cfs and 1.87 cfs used by ODFW refer to amounts that are only achleved under maxlmum rate of ground water withdrawal authorlzed by the ground water permlt wlth full mitigatlon, which corresponds to a full build out condition of the Resort. lt ls notable that ODFW assumed Phase 1 mltlgation of only 458.43 acre-feet (see chart at top of pg 3, June 13, 2008 letter), which ls L41.57 acre-feet less than the 610 acre-feet shown ln the 2008 Addendum , and only slightly more than shown in the 2018 IDP accepted by OWRD, Gould claims: 4. ".,, eny OWRD authorlty ovet water quontitv of mltlgatlon does not dictote resolution ol woter ouolltv lssues associoted wlth DCC 18.113.070(D)'s requlrement thot ony odverse Impocts be completely mltlgoted," (Pg. 3) The OWRD requlres that mltigatlon occur ln the same location or zone ln which potential impacts of ground water wlthdrawals would occur. The Resort's ground water permlt states that the Resort's full mltigation obligation is 1,356 acre-feet in the General Zone of lmpact, Thls is defined as anywhere ln the Deschutes Besin above the Madras Gage, located on the Deschutes River below Lake Billy Chinook (Water rights permit page 2). ln consultatlon with the Resort, ODFW recognized that the OWRD ground water mitigation program was specifically designed to identlfy and mitlgate for the potentlal lmpacts of streamflow reduction as a result of new ground water pumping in the basln (pg. 7, Groundwater Mitigation Plan April 2008). Accordingly, any mitlgation water withln the GeneralZone will work to satisfy the Resort's mitigation obligations. This ls the quantity element Gould refers to. While ODFW observed "Under state law the Thornburgh Resort has fully offset its mitigatlon requirements for offsetting groundwater use..." they were concerned about the impacts to springs and seeps and the thermal impacts that could be caused by the Resorts groundwater withdrawal stating: "any groundwater pumping ... wlll have an effect on local springs", 'Sprlngs are important...", and; "Springs provide a relative natural constancy of water temperature." (ODFW, June 13, 2008 letter, pg. 2). Thls ls Gould's oualltv issue, which is related to DCC 18.113,070(D) that says; Any negatlve impact on fish and wlldlife resources wlll be completely mitigated so that there is no net loss or net degredation of the resource". The Resort's 2007 IDP listed mitigation from several sources in the General Zone, primarily water rights from Big Falls Ranch and COID. After review of the Resort's mitigation plans ODFW determlned ln its June 13, 2008 letter to Deschutes County that: "ln this particular case the potential impact to sprlngs and seeps wlll llkely be mitigated by transferring spring flows used for lrrigation directly back lnto Deep Canyon Creek and EXHIBIT H L u BA 20 I e -136 AM EU[XA,E-EfiRSp"tuB?gE"1fAA Attachment 6 the Deschutes River. These sprlngs should provide slmilar habitat and help wlth water temperatures in the Deschutes Rlver." The spring flows ODFW ls referring to are Deep Canyon Spring which is currently dammed so Big Falls Ranch can use the spring flow for irrigatlon. As noted by ODFW, the Resort will mitigate for Its potential impacts to spring and seep flows by letting the Deep Canyon Spring water flow directly into the Deschutes River. To enable this, the Resort will remove the two dams that impede the flow of spring water to the Deschutes Rlver and Big Falls Ranch wlll stop uslng Deep Canyon Sprlng water for lrrlgatlon. The flrst dam ls located on the Nolan and Reimenschnelder property, while the second dam ls on the Blg Falls Property.l lt is the removal of these dams along with Big Falls dlscontinuing to pump its irrigation water from Deep Canyon Creek, which ls fed by Deep Canyon Sprin& that will allow the water from Deep Canyon Spring to flow unlmpeded down Deep Canyon Creek and into the Deschutes Rlver and mltigate for the potential thermal issues ODFW was concerned about. The only area where ODFW made any request for timing (as noted in #3 above) was the removal of the dams. ODFW requested that the Resort remove the first dam prior to beginnlng construction of Stage 4 and that the second dam be removed prior to beginnlng Stage B. Although the IDP has been amended to four stages of water development instead of two, the Resort agrees to take the dams out at th€ same time, after the same impacts. The first dam wlll be removed before beginnlng constructlon of the initial Stage of water use and the second dam wlll be removed before the Applicant begins development of a water use equivalent to the original Stage B, a use over 1,201AF annually. The 2018 IDP made no change to the Resort's plans to remove both dams. The only other element relating to water quality is a contrlbutlon of 510,000 to provlde for thermal monitoring of whychus creek. There is no change to thls either and this will be done. As ODFW has determined, once the dams are removed, Big Falls discontinues any pumping of Deep Canyon Spring lvater, and the contrlbutlon to the thermal monitoring has been made Thornburgh will have fully mltigated for the thermal lmpacts of concern to ODFW. Thls satisfles the quality issue Gould mentioned. Gould claims: 5. The A,pplicant in lts Mitigdtion Plon relied heavlly on mitlgation water coming from the Central Aregon lrrigation District (CO\D) to meet both lts water qudntlty and water quality mitlgotlon requirements (Pg. 5). and the order of removal but corrected the error ln sub:equent comments' EXHIBIT H I oDFW erred ln the dams L u BA 20 1 e - 1 36 AM EUIXA,E-E fifiSp"6q ?gE"1fA? Attachment 6 Although the 2008 Groundwater Mitigation Plan discussed COID as a potential and likely source of "quantlty" mltlgation water, the plan promises mitigation wlll be provided ln compliance wlth OWRD rules that wlll allow the use of any mltigation water acceptable to OWRD for quantity rnltigation. As described above, Thornburgh's mitlgation obligation can be met with mitigatlon anywhere wlthin the General Zone whlch is withln the Deschutes Basin above the Madras gage. Whlle the COID water rights will work for mltigation, they are not required to comply wlth the OWRD rules. The ground water mitigation plan in the Newton Addendum didn't clalm to use the COID water to address the potential impacts on springs and seeps, including potentlalthermal impacts, the quality issue that was of concern to ODFW. lnstead, it promised to comply with OWRD mitigation requirements and specifically indicated that rights otherthan rightsfrom COtD, such as those assoclated with the Mccabe property, might be used for mitigation, Only the Big Falls water rights, not COID water rights, rilere a requlred element of the mltlgation plan in the Newton Addendum. The Addendum states: "By retiring an existing lrrigataon water right, this measure will also result ln restoration of 5.5 cfs of cold surface water ftow to the Deschutes Rlver from Deep Canyon Creek during the irrlgation season" (pg 9). ".. Thornburgh will work with the landowner to ellminate the existing lnstream impoundment [in Deep Canyon Creek] used as paft of the [Big Falls Ranch] lrrlgatlon system. This is expected to temperature beneflt by ellminating temperature increases due to ponding effects" (pg 9). When Big Falls ceases pumping spring waterfrom Deep Canyon Creek and the dams are removed, the Deep Canyon Spring water will flow unimpeded to the Deschutes River to address the quality issue of concern to ODFW. What Constitutes Compllance With The Groundwater Mltlgation Plan in the Newton Addendum? 1. Comply with OWRD mitigation rules and provlde the necessary mitigation as required. 2, Remove the flrst dam on Deep Canyon Creek, 3. Termlnate pumping of Big Falls Ranch water rlghts permit from Deep Canyon Creek in an amount, equal to or greater than the corresponding water amount of water needed for the usage required by this development. a. As noted previously the Groundwater Mltigation Plan says that Phase A water development wlll require an annual maxlmum volume of 1,201 acre feet (AF). Of this usage there was to be 1,75 acres of water from Blg Falls Ranch. The Big Falls i,( ;' ji, : i',1 i lli ri:i-'r i-il ,: l::,'rl | ': ; ''ri; EXHIBIT H L u BA 20 I e - 1 36 A M EU[X*.6_q fifiEp"''rq ?q9"1f60 Attachment 6 water rights allows forthe pump3ng of 3 AF per acre of water so 175 acres of water equals 525 AF. The 525 AF ls equal to43.7Yo of the water ln the Groundwater Mitlgation Plan under Phase A. b. Applicant has stated the water usage to provlde for this tentatlve plan ls 50 acres of water while the flrst stage of development under the Applicants owRD approved lncremental Development Plan calls for 62.09 AF of use for resldentlal uses and 345.5 AF for lakes, golf, and lrrlgatlon uses for a total of 4O7.6 AF of total use. UntiJ the Resort's cumulative use reaches t,2OL AF,the Resort wlll termlnate pumping of sprlng water from Deep Canyon Oeek an amount of water equal to at least 4?.7% of the total amount of mltigatlon required under the first increment and each successlve increment as required by OWRD to be in compliance wlth the OWRD mltigatlon rules. c. Once Thornburgh's cumulatlve use exceeds L,2OL AF, the second dam that ODFW requested to be removed will be ellmlnated and all Blg Falls pumplng from Deep Canyon Creek will terminate. At that tlme, all water from Deep Canyon Spring will be allowed to flow unimpeded tnto the Deschutes River. Except for the contribution of $10,000 to assist wlth thermal modellng at whychus creek, this willcomplete the mltlgation as it pertains to the quallty lssue. Other Comments ln Oppositlon. 1. Numerous partles were concerned about groundwater levels and potentlal lmpacts to thetr wells. Some clalmlng that they had already deepened thelr wells. Susan Payne provided a chart of all the wells ln the area slnce 1973 that shows some are being deepened, She draws the conclusion that the reason they are being deepened ls because of Eagle Crest' 8ut the EC wells were largely drilled from 7988-92, Response: Water levels in some wells have declined in the upper Deschutes Basln. There are many reasons for the decllnes, as stated by the U.S. Geologlcal Survey and the OWRD. The OWRD contlnues to issue permits to wlthdraw and use ground water provided that the appropriate mltigation for consumptive water use is provided. Water level declines result from changes ln irrigation practlce due to water conservation, changes in rural land use, conservation by irrigatlon distrlcts through canal piplng and llning, drier cllmate conditions over the last several years and ground water pumping. Flood lrrigation was practiced in many areas around Redmond in the 1950's - 1960's based on personal experience having Srown uP in Redmond and with a father that designed and installed irrlgatlon systems to replace flood lrrigatlon. Flood lrrlgation contrlbutes to artifictal recharge and can result in relatively shallow, perched ground water. Many wells ln which water levels decllned were installed to EXHIBIT H L u BA 20 1 e - 1 36 A M E UAX*.fi_q fifiSp"',?B ?gE"1fA{ Attachment 6 wlthdraw water from shallower ground water zones. As irrigation efficlency improved an and artlflclal recharge declined, and rural development expanded with more domestic wells, the shallow ground water systems were depleted, resulting in declinlng water levels and deepentng of wells. The report'?nalysls of 1997-2008 Groundwater Level Changes in the Upper Deschutes Basin, Central oregon", Scientlflc lnvestigatlons Report 2013-5092, dated 2013, by the U. S. Geologlcal Survey ln cooperation wlth the OWRD, ls lnforming ln regard to causes of water level declines ln wells. The report lndlcates that decllnes ln ground water levels have reached up to 14 feet in the central parts of the upper Basln since the mid-1990's, The report states that decllnes are due cllmate variatlons, lncreases ln ground water pumping and decreases in artificial recharge due to piplng and lining of lrrigatlon canals. Ground water model slmulatlons lndlcate that about 60 to 70 percent of measured water level declines in the area between Cline Euttes and Redmond is likelytheresultofclimateinfluences, Slmulationsindicatethatabout20to25percentofdeclines is due to lncreases ln ground water pumplng and 5 to 10 percent ls due to decreased artlftclal recharge by canal plplng and lining. Climate variations are reported as the domlnant factor ln water level declines, ln regard to Ms. Payne's inputs, lt ls difflcult to formally conclude that Eagle Crest well pumping has caused the water level declines she points out. As the above-referenced U. S. G. S. report states, there are several factors that contrlbute to water level decllnes, At present, there is no moratorlum ln place by the OWRD on issuing ground water permiG. Ground water permits are issued on the condltlon that the consumptive use fraction of the pumped water is appropriately mltigated under the Oregon Administrative Rules Chapter 690 Division 505, applicable to the upper Deschutes Basln Study Area, within which the Resort is located. The Resort has been issued a ground water permit by the OWRD and it has developed a mitigation plan as required by OAR 690-505 that has been accepted by the OWRD, Finally, the Resort prepared a "Well lndemnlflcatlon Plan, Thornburgh Resort" dated April 11, 2008, in response to neighbor concerns about impacts of Resort well pumplng on their wells. This Plan was accepted by Deschutes Countv and was incorporated into the land use approval as Condltlon 11, as follows: "At the tlme af submisslon for the Finol Master Plon (FMP) opproval, Appltcant sholl include o written plon for entering lnto cooperotlve ogreements wlth owners of existing wells wtthln o two- mlle radius of Appllcant's wells. The plan sholl include a description of how Appllcont will provlde notlce to affected well owners and of the terms and conditlons of an optian lor well owners to enter into o written dgreement with Applicant under whlch Applicant will provide lndemnlflcation to well owners ln the event of octual well interference ds a result of Appllcant's woter use. The plon shall remain in effect for o period of five yeors following full water development by Appltcont. Specilic ?erms and condltions of the plan shatl be developed in cooperation with County staff and the Oregon Water Resources Department," llr0ll,:iiriiiilr' Rir:j,"li lti l;.,i r -'.'. 11,:r;r i):: i'; : i-,:,i: st:Pll i\4til:tl /1 rili'J EXHIBIT H L u BA 20 1 s - 1 36 AM EUAX{ E_E fiR$p"iaB?gg"1f6t Attachment 6 Canal plplng and lining by the irrlgation dlstricts is being done as a matter of prudent water management, whlch reduces artificial recharge and lmproves stteam flows, Given this, it is possible that the water level declines reflect the re-adJustment of ground water levels back toward levels that existed before any lrrlgation dlstricts were constructed. ln this case of re- adJustment, lt ls dlfficult at this time to say that there ls a deflnlte problem. A gentlemen testifled that the Tumalo lrrlgation District was piping lts canals and that would be reduclng seepage into the ground water. Response: The Deschutes Water Alllance conslsting of the Central Oregon lrrlgatlon District (on behalf of all lrrlgation dlstricts ln the upper Basin|, Confederated Tribes of Warm Springs, CentralOregon Clties Organization and the Deschutes River Conservancy received a Water 2025 Challenge Grant frorn the U. S. Bureau of Reclamation in 2fr14 to conduct water resource plannlng studles and develop a pllot water bank. Davld Newton had overall accountabllity to get five planning studles completed by 2006 that included quantiflcation of existing water needs and sources, and future 2025 water needs and sources. The completed plannlng studles lnclude: r lrrigation District Water Efficlency Cost Analysls and Prioritization;. Future Groundwater Demand in the Deschutes Basln;r ReseryoirManagernent; r Growth, Urbanization and Land Use Change: lmpacts on Agrlculture and lrrigatlon Districts in CentralOregon; andr lnstream Flows ln the Deschutes Basin: Monitoring, Status and Restoratlon Needs. The Synthesis document "Long-Range Water Resources Management in Central Oregon: Balancing Supply and Demand in the Deschutes" was co-authored by David Newton and Bruce Aylward, PhD. Study results indicated that approximately 269000 acre-feet of water ls needed tofulfillthewater needs for various upper Basln uses by the year 2025. Of thls total, 190,000 acre-feet ls needed for instream flows to meet unfulfllled instream water rights, Approximately 33,000 acre-feet is needed for agrlculture with the balance needed by munlcipal and other developments outslde the urban growth boundaries, Surface water ln the Deschutes Basin ls fullv approprlated under exlsting water rights. Future water needs of municipalities, irrigation outslde of irrigation dlstricts, domestic and other development outside urban growth boundarles must come from ground water. Water for agrlculture wlthin irrigation districts and for instream flows must come from conservation. ln thls regard, the planninS study on lrrlgation distrlct water efficiencl cost analysis and prioritization determined that hplementation of the "low-hanglng fruit" canal plping and linlng projects could conserve approximately 100,000 acre-feet of water. Conslderlng that the lrrigatlon distrlcts lose an average of 40 to 50 percent of the water they dlvert from streams for lrrigation, the source of EXHIBIT H L u BA 20 1 e - 1 36 AM EU#* fi _EfiR$p"idq?g8"1f6g Attachment 6 water for instream flows and district agriculture is conservatton through canal piping and lining. There ls no other source that can respond sufficiently to these water needs. The Tumalo lrrigation Distrlct (TlD) ls piplng lts canals. A long-standing goal of the TtD ls to ptpe Its entlre canal system. Doing so greatly improves the reliabllity of annual water suppty to irrigators who depend on the TID for water. Other upper Basln irrigation dlstricts are also piping or linlng canals to conserve water and Improve rellability of annual supply. At least 25 percent of the water conserved by piping and llnlng of canals is dedlcated to the public through placement of the conserved water lnto streams where it is protected under an instream water rlght. The source of water for the maJorlty of future water needs ls canal piping and llnlng, The piping and linlng of canals is a fitting response, particularly where 40 to 50 percent of water dlverted from streams by the districts is lost to seepage. Accordlngly, diversions are much larger than the irrlgation need to offset the seepage losses and deliver a net amount of water to the lrigators that is sufficlent for their irrigation needs. Canal piplng and llnlng can impact ground water levels as the U. S, G. S. finds. However, it is reasonable to consider that since the irrigation districts and their canal systems were formed ln early 1900 (North Unlt lrrigation Distrlct in 1940'sland the U, S. G. S. found that in 1994, 356,600 acre-feet of water leaked through canal bottoms to become ground watet recharge, water lost through canal seepage had some lmpact on the ground water system through arlficlal rechar6e focused ln a relatively small central area of the upper Basin, within the lrrlgatlon distrlct boundarles. Most wells were constructed ln the upper Basin after the district canal systems were constructed. It is reasonable to consider that many wells could have been relatively shallow due to effects of artlflcial recharge by canal leakage. lt ls reasonable to consfder that reduction of artlflclal recharge through canal piping and lining could cause the ground water system to re-adjust, back toward sorne orlglnal equlllbrlum before the influence of irrlgatlon canal seepage, lt is also reasonable to consider that there could be an additional re-adjustment in equillbrium for the increased ground water pumpina which could requlre deeper wells. Such case is a re-balancing of the ground water system ln conjunctlon with water management and conservation actions, whlch are certainly important considering future growth, related water needs and potential effects of climate change. 2. The Resort will pollute the groundwater. The quallty of ground water in the upper Deschutes Basin ls excellent, even though there are tens of thousands wells and septic systems, and ma ny golf courses which have been in use for for many decades. The quality of ground water contlnues to be well within water quality standards established by the EPA. ln llght of this, it is difficult to conclude that the Resort would have adverse impacts on the quality of ground water quality, EXHIBIT H L u BA 20 1 e - 1 36 AM EU6X4.E_qfiRSp"id??gg"1d6Z H. A. McCoy Englneerlng & lf .6, 1 P.E., Senlor Englneer, Entlneerlng t and Wat€r Rlght Examlner Attachment 6 EXHIBIT H L u BA 20 1 e - 1 3 6 A M EUPI* fi -E fifiSP"idP ?gg"1f6g Attachment 7 Newton Consultants, Inc, David J. Newton - Resume Page I ULTA Resoonsibilities: Water Rcsources Civil Engineering Engineering Geology Ygrfs gf -F.xocrience: With Newton: 3l ycars With Other Firrns: l5 years Education; B.S., Gcological Engineering, Universiry of Arizona, School of Mines P q s F P resen t3g!"&$s io Ut Affilialionsr American Public Works Association Association of Dam Safety Officials National Fish & Wildtife Foundation- Technical Advisory Committee Oregon Water Resources Congress Board of Directors Orcgorr Oround Water Assooiation Washington Ground Water Associntion Oregon State Univcrslty Water & Watersheds Institute; Inaugural Board Upper Deschutes Watershed Council Board Orcgon Dcparlment of Fish & Wildlife, Fish ?assage Task Force Reqistrrtion: Environmental Engineer - Oregon Certihcd Waier Rights Examincr - 0regon Geulogioal Engineer - Idaho Engineerirg Geologist - Oregon and Califbrnia Civil F.ngineer * Oregon, Washinglon I{ydrogeologist - Washington David J. Newton, P.8., C.E.G., C.W.R.E President and Principal David Newton has over 45 years of diversified geotechnical, geological and engineering consulting experience. A principal of Newton Consultants, [nc,, David has multidiscipline management and consulting experience involving hydrologry, drainage, wetlands, earthwork and site gtading, utilities, land use issues, water supply, waste disposal, foundations and permitting for mining, municipal, private development, commercial, and industrial projects. David also has extensive experience throughout the State of Oregon in water resources management planning and development of water supply programs. He brings expertise in planning how to develop and implemont water management programs involving multiple issues; including surface and groundwater sources and water availability, hydraulic connectivity and groundwater permit issues, mitigation planning for waler right applications, dams and reservoirs, water cluality, wetlands, water rights, fish passage issues, development of water conservation programs. David is active as an engineering planner, technical consultant, stfategist and negotiator for his clients and for his staff at Newton Consultants, Inc. David served on the Board of the Upper Deschutes Watershed Council. David served on the Columbia Basin Transactions Program advisory committee for thc National Fish & Wildlife Foundation. He helped review funding applications for streamflow restoration and water conservation projects proposed in ldaho, Montana, Oregon and Washington. He served as chair of the Fisheries Restoration and Irrigaiion Mitigation Acl advisory committee which reviews funding applications for fish passage and screen projects proposed by irrigation dlstricts. L u BA 20 1 e _ I 36 AM EU6X4 fi _EfiR$p"idq?qgJffi4 Attachment 7 NeMon Consultants, Inc. David J. Newton - Resume Page 2 Proicct l)escriptions: Pelican Butte Environmental Impact Statement - Groundwater Impacts of Proposed Ski Area Development, Klamath Falls, Orcgon Performed investigation examining the effect on local surface and groundwater resources from water supply pumping and wastewater discharge. This work was conducted in support of the proposed $60 million Pelican Butte Ski Area project in thc Wincma National lrorest near Klamath Falls. Running Y Ranch - Gcological & Hydrological Studies for Water Supply, Klamath Falls, oR. Water supply is critical to the agricultural, domestic and recreational needs of this development. Water also is an important and fully utilized resource in the Klamath Basin. NEWTON performed geological and hydrological studies to identify the degree of hydraulio connection with Klamath Lake and the feasibility of using groundwater to augment existing and proposed needs, NEWTON also conducted studies to identify potential geothermal resources at the site. Eagle Crest Resort, Redmond, Oregon Eagle Crest is expanding to accommodate additiorral recreation demand, Expansion concerns include impact of additional community septic system on groundwater and the f)eschutes River, and availability of groundwater for water supply. Scope included identifying availability of suitable land and determined soil and geological characteristics of proposed 40-acre septic disposal site and investigating how septic wastewater would migrate in the ground based on test pits excavated in an existing 6-acre resort drainfield. NEWTON staff determined that geologic conditions provide nafural protection for groundwater and the river and a monitoring program was identified that satisfied DEQ requirements, It was also determined that geological conditions would ttot impact development of the conveyance and waste disposal system. NEWTON also investigated groundwater availability, designed and installed a water supply well, and helped obtain permits lor groundwater use from the Oregon Water Resources Department (OWRD). Permits were granted by OWRD on the basis of NEWTON determinations and hearing testitnony by NEWTON staff that pumping from the aquifer would have no significant irnpact on the Deschutes River. Eagle Crest Resort; Groundwater Permits for Water Supply; Redmond, Oregon. David provided hydrogeological assistance with high-capacity (1,000 to 1,500 gpm) test well installations, testing and analysis, and macle testimony before the Deschutes County Planning Commission, Board of Commissioners and the Oregon Water Resources Commission in regard to hydraulic connection between source aquifers and the Deschutes River to help the resort obtain their water supply permits. L u BA 20 1 e - I 36 AM EU[X* fi _q ffiSp"6??gg"1ffit Attachment 7 NeMon Consultants, Inc. David J. Newton - Resume Page 3 Eagle Crest Resort; Renewal of WPCF Permit, Wastewater Disposal System; Redmond, OR Renewal of the permit requires a hydrogeologic update considering water quality aspects of the project. David developed and implemented a hydrogeologic evaluation and preparation of a repor-t to satisfy this DEQ requirement. The update included detailed reviews and consideration of the hydrogeologic information presented in the USGS rspoft on the hydrology of the upper Deschutes Basin (USGS 2000), Crooked River Ranch - Wafer Suppty Well, Terrebonne, Oregon Pertbrmed a groundwater availability investigatioh and determined yield potential and estimated depth for a new well. Currently awaiting authorization to prepare well construction specifications and contract documents, Work will also consist of obtaining and reviewing well construction bids, overseeing well construction and pump testing, reviewing contractor invoices, and preparing reports. The well will be over 800 feet deep with a capacity of 750 gpm and will augment water supply for this 12,000 acre,2,600lot development. Resort at the Mountain - Groundwater Supply for Golf Course frrigation, Welches, OR The Resort needed additional water for golf course irrigation. The nearby Sandy and Salmon Rivers are protected as wild and scenic rivers, and additional water rights from the rivers were not available. The Resort retained NEWTON to determine the feasibility of using groundwater for irrigation. The estimated demand required pumping 800 to 1,000 gprn from three to four wells. NEWTON evaluated the basin using a MODLFOW model and determined that storage and recharge of groundwater was adequate. l'he OWRD had concerns that pumping high-yield irrigation wells could deplete the Salmon or Sandy Rivers. Based on this concern, NEWTON estimated pumping impacts on the rivers using a computer model and concluded that depletion would be within OWRD's acceptable limits. NEWTON designed test and production wells; supervised their construction; organized, directed and analyzrd pumping test results; prepared reports to the OWRD; and assisted the Resort in gaining permits to use groundwater for irrigation. Cify of Garibaldi - Investigation of Groundwater - Surface Water Connection, Garibatdi, OR Developed an investigation program to evaluate hydraulic connection between a source aquifer and a nearby stream. This work would determine if pumping of a City water supply well has significant impaot on the stream and feasibility of obtaining additional water rights for the well under Oregon Administrative Rulcs Chapter 690, Division 9. Big Falls Ranch - Investigation of Groundwater - Surface Water Connection, Terrebonne, OR lnvestigated geology, aquifers, and springs at the 1000 acre ranch to determine the degree and significanoe of hydraulic connection between groundwater and the Deschutes River. Perfbrmed pump tests with 3 - 1000 gpm inigation well. This work was performed in response to provisions of Oregon Administrative Rules Chapter 690, Division 9, Deschutes Valley Water District, Madras, Oregon 'thc District supplies municipal, industrial and domestic water to the community areas of Madras and Culver, Oregon. Water supply is from groundwater systems that discharge as L u BA z0 1 e - 1 36 AM EU[X$,EE FfiEp"id??99"1ffi€ Attachment 7 NeMon Consultants, Inc. David J. Newton - Resume Page 4 springs into the Crooked River. As a municipal water supplier, the District was required to determine susceptibility of the groundwater source to contamination. Work included evaluating land-uses, soil types, geological formations, existing wells, water quality infbrmation, and contaminant sources. The results were used to develop conclusions relative to contamination susceptibility to volatile organic chemicals, and associated monitoring requirements f<lr the springs. Subsequent recommendations resulted in the completion of two test wells to augment and supplement the spring source. Deschutes Groundwater Steering Committee, Upper Deschutes River Basin, Oregon. Evaluation of Irrigation District fnfrastructure (2000) Managed and conducted evaluation of existing irrigation district infrastructure in the Deschutes River Basin, Oregon. The primary goat was to determine feasibility of modifying irrigation district infrastructure to provide streamflow enhancements in the middle Deschutes River,'l'umalo Creek and Squaw Creek (now Wychus Creek) through documentation and evatuation of existing and potential infrastructure improvements to conserve water. Evaluated alternatives include:. Piping and lining of canals.. More efficient utilization of water f'rom storage.. Water delivery system changes, ' Consolidation of irrigation ditches., . Water pumping alternatives,. Changes in points of water diversion. The work included inventory and documentation of previous studies in the Basin on water resources and conservation evaluations, and development of criteria (including water savings and costs) for evaluating infrastructure alternatives. David presented his findings in the report "Evaluation of Infrastructure Alternatives in the Middle Deschutes Basin for Mitigation of Polential Groundwater l(ithdrawal Efficts on the Deschutes River," August 21,2000. City of Bend, Oregon Water Supply & Mitigation Alternatives Assessment Prime consultant, Newton-Deschutes Resources Conservancy team. Worked with DRC and developed list of water supply and mitigation alternatives; developed criteria for evaluating mitigation alternatives based on: regulatory compliance, effectiveness and sustainability; evaluated existing City water rights and delivery capacity; helped develop strategy for meeting near-term peak demand with amendments to existing permits; conducted meetings with OWRD on near-term water strategies and rnitigation alternatives; conducted evaluations of water supply and mitigation alternatives; evaluated costs, reliability, regulatory, timeliness, adaptability and institutional factors; conducted meetings with Basin stakeholders to review draft evaluation criteria, discuss water supply/mitigation issues, the role of conservation and obtain input; modified criteria based on input; prepared draft report on water supply and mitigation alternatives 4ssessment. This work is currently underway. Deschutes water AIliance, upper Deschutes River Basin, oregon (2004-2006) L u BA 20 1 e - 1 36 AM EU[X* fi _EfifiSp"'1B?99"1ffi4 Attachment 7 Newton Consultants, lnc. DavidJ. Newton - Resume Page 5 l{atey Resource.s Planning Studies to Develop a Framework and Program to provide reliable Water Supply for Agriculture, Municipal Needs and Streamflow for Fish, Wildlife and Water Quality Improvements. David managed completion of five water resources planning studies and assisted with the synthesis document for the Deschutes Water Alliance under a Bureau of Reclamation Water 2025 Challenge Grant for $245,000. Studies and related repcirts were prepared by representatives of the Deschutes River Conservancy, Oregon Water Resources Department, Upper Deschutes Watershed Council and Newton Consultants. Peer reviews were arranged by David and conducted by OSU, OWRD, ODEQ, ODFW, ODPR and Bureau of Reclamation. Although responsible for getting the studies done on time and within budget (planning study budget was approximately $100,000), David also conducted engineering evaluations of infrastructure, conservation opportunities, costs and prioritization of conservation and efficiency projects identified in the studies. The five studies and synthesis document are: Irrigation District Water Conservation Cost Analysis and Prioritization. An evaluation and prioritization of opporlunities to save water through piping and lining of catrals, laterals and ditches, as well as through on-farm oonservation technologies in the seven major irrigation districts of the upper Deschutes River Basin, Oregon. Growth, Urbunizution and Land Use Change: Impacts on Agriculture and lrcigation Districts in Central Oregon. An inventory of amounts, patterns and rates of district water rights becoming surplus due to urbanization or other changes in land use patterns in Central Oregon and coffesponding impact on district assessments. Reservoir Managemenl. Rapid assessment of potential gains from optimization of existing irrigation water storage reservoirs and their potential impact on improving flow and quality, and prepare terms of reference for more formal and rigorous assessmenf. Future Groundwsler Demand ln the Deschutes Basin. Assessment of the water supply needs, quantity and timeline of the Basin's regional urban suppliers. Inslreum Flow in the Deschutes Basin, Monitoring, Statas and Restoration Needs, In-stream flow needs for fish, wildlitb and recreation along with measurement, monitoring and evaluation systems assessment of the suitability and completeness of existing flow measurement sites and existing water quality and monitoring plan for the upper Deschutes Basin and funding and implementation plan. Synthesis Document: Long-Range Water Resources Management in Central Oregon: Supply and Demand Scenariosfor the Deschutes. Formalion of a Pilot Wuter Bsnk David assisted the DWA in the initial steps of forming and operating the pilot water bank. This included inputs on agreements among Alliance members, active participation to develop the mission statement and strategic plan. L u BA 20 1 e - 1 36 AM EU[X{ fi _EfiftSP"tu??gg"1ffig Attachment 7 Newton Consultants, Inc. David J. Newton - Resume Page 6 'lhe rcsults of five planning studics under the Water 2025 Challenge Grant and related efforts provided the technical and governance foundation of the Alliance and the Water Bank. David assisted with bank foundation development through study results relative to means of increasing water availability through (a) on-farm and off-farm water conservation in irrigation districts, (b) marketing to allooate surplus waters from urbanization of irrigable lands and (c) optimized reservoir management. Assessment of municipal water needs over the near and long-term was also completed with David's inputs into the bank development. The planning work quantified water supply, demand and rcallocation needs, Scenarios to mcct near-tem benchmarks and longterm targets were developed with David's inputs to establish the DWA Opcrational Plan David assisted in development of the water bank through completion of the five planning studies and using the results to help shape the structure and operation of the bank. The study results contributed to development of governance structure, policies, procedures, and market tools and helped bcgin implementation of water bank for water reallocation and management among the DWA members. Specific project objectives include support for initial bank capitalization including (a) a $10 million project using saved water from piping to shore up North Unit water rights, save pumping costs and improve flows and watet quality in the Middle Deschutes and Lower Crooked Rivers, (b) develop and fund trials for implementation of an On-Farm Conservation Program and (c) a reservoir optimization project with management program. Existing and new market and transaction tools will be applied and developed to build Alliancc market infrastructure. Deschutes Counf5r, Oregon; LaPine Basin Area Ground Water Investigation. Investigation of Ground Water Aquifer & Flow Conditions Relative to Nitrate Contamination. Groundwater contamination in the LaPine area was ths basis for a groundwater investigation under an EPA 208 grant program. David organized and implemented geological and ground water investigations to determine geologic and hydrogeologic characteristics of the LaPine Basin, quantify groundwater availability, and deterrnine flow directions of the aquifer system. Aquifer Recharge, Report of Hydrogeologic Feasibility and Project Operations; Avion Water Companyo Deschutes Valley Water District and the Cify of Redmond. An application was submitted to OWRD for a groundwater recharge project. David was the principal engineer and geologist responsible fbr developing the structure of the reports consistent with the applicable Oregon Administrative Rules, oversight of staff hydrogeologistsin document preparation, writing the project operations repoft and portions of the hydrogeologic feasibility report. The Reserve Vineyards & Golf Club - Environmental Assessment under Federal NOPA Processo Hi [sboro, Oregon, Assisted in the production of an Environmental Assessment (EA) prcpared under the National Environmental Policy Act (NEPA) requirements, The EA identified potential irrigation water sources and analyzed the potential environmental impacts resulting from use of each source. Based on the EA analyses, the U.S. Bureau of Reclamation (BOR) issued a Finding of No LU BA 20 1 e - 136 AM Eu[X$fi_EfifiSp"ide?ggJ&?g Attachment 7 Newton Consultants, Inc. David J. Newton - Resume Page 7 Significant Impact (FONSI), allowing use of water fiom a BOR project (Henry Hagg Lake), The project required extensive coordination with federal and state agencies, special interest groups and the surounding landowners. A water-right permit was also secured for this project. Pumpkin Ridge Irrigation Water-NEPA Asscssment, Tualatin Valley Irrigation District (TVID), Washington County, Oregon. As part of applying for TVID irrigation water service to the Pumpkin Ridge Golf Course and nearby farmlands, NEWTON conducted an Environmental A.ssessment (EA) in accordance with the National Environmental Policy Act (NEPA) process. The intent of the EA was to identify potential sources of water (including the TVID) and assess the environmental impacts that could result from use of each source. The analysis included teviewing the TVID's contractual water service agreements, available supplies and delivery opcrations, Extensive interaction with the U.S. Bureau of Reclamation (Reclamation), state agencies, special interest groups, golf course management, and private land owners was required. Reclamation approved the EA and authorized TVID service to the golf course and adjacent farmlands. Broken Top Golf Course & Residential Communify Development, Bend, Oregon Performed a water availability study, well design, construction specifications and pump test analysis for a 350-foot-deep, 800 gpm irrigation well. Feasibility of High-Capacify Well Development, Broken Top Development Project, Bend, OR David provided hydrogeologic oversight to his staff based on his central Oregon experience during evaluation of the potential depth ranges and potential yields for high-capacity wells needed by the project. Black Butte Ranch - Wellhead Protection/Contamination Susceptibility, Sisters, Oregon This resort relies on wells for water supply to meet domestic and golf course irigation demand. Groundwater quality protection measures through the wellhead protection system were necessary. Scope included evaluating soil types, geological formations, well conditions and potential for hydraulic connections between shallow and deep aquifers. Considering contaminant sources, this information was used to determine susceptibility to organic compounds. LaPine Basin - Groundwater Investigation, LaPine, Oregon Groundwater contamination in the LaPine area was the basis for a groundwater investigation under an EPA 208 grant program. David organized and implemented geological and groundwater investigations to determine geologic and hydrogeologic characteristics of the LaPine Basin, quantify groundwater availability, and determine flow directions of the aquifer system. Marion County Water Resources Management Program, Marion County, Oregon Helped the County prepare a water resources management plan to address long-term water supply and water quality concerns. Groundwater and surface water availability/demand were L u BA 20 1 e- 1 36 AM EUpd{ fi E [fi8P"id??gg"1m9 Attachment 7 Newton Consultants, Inc. David J. Newton - Resume Page 8 evaluated in the Upper Santiam, Lower Santiam, Pudding River and Willamette River watershed areas. Groundwater resources were evaluated for Troutdale formation and Columbia River Basalt Group aquifers. Municipal and septic waste disposal, in-stream water rights, recreational needs and environmental concerns were also addressed, Work included presentations, discussions and coordination with the Marion County Water Resources Management Council. Pudding River Basin Water Resources Development Association - Water Supply Development Program, Mt. Angel, Oregon Assisted the Association with identifying alternatives to create a reliable, long-term source of water for agric0lture in the Pudding River watershed area (Marion and Clackamas Counties). Scope of work includecl assessing groundwater availability in Troutdale Formation and Columbia River Basalt aquifers, surface water availability, costs and feasibility of new storage project, costs and feasibility of importing water through a pipeline from the Santiam River, and costs and feasibility of groundwater recharge. Total annual water need is about 15,000 acre feet, City of Mt. Angel - Water Supply, Mt. Angel, Oregon The City is concerned about sustainability of aquifers for long-term groundwater supply in light of water level declines in wells and administratiye actions by the Oregon Water Resources Department to restrict groundwater use through establishment of Groundwater Limited Areas. Work includes: investigating long-term sustainability of aquifers supplying City wells and feasibility of short-term solutions including construction of new wells and purchase of existing private wells; and examining wellhead protection measur€s being implemented by the City. Results of this examination will be used to develop a plan enabling the City to correct existing deficiencies and comply with more stringent wellhead protection standards as they are implemented in the future. Josephine County Water Resources Department, Water Resources Management Plan Work Program, Grants Pass, Oregon The County Water Resources and Planning Departments needed a water resources management plan to provide a mechanism for responding to several local water issues. These issues related to conflicts between land use and water availability, water quality impacts of mining and septic waste disposal, well interference, water shortages, dam site protection and ten other specific issues. A Work Program was developed for the County that assigned levels of concern so the issues could be ranked according to priority, prepared questions to answer for each issue to understand them, dctcrmined parameters and data necessary to answer questions, and provided guidelines for County staff to develop a Water Resources Management Plan on a continuing basis. In addition, a data management program was prepared that summarized existing data, determined its adequacy to answer water issue questions, recommended additional data collection needs, and recommended a computer data base system for storing and using data for monitoring and management decision-making. L u BA 20 1 s - 1 36 AM EU[X* fi _q ffiSp"|.rq?g8"1mA Attachment 7 Newton Consultants, Inc. David J. Newton - Resume Page 9 Josephine County Water Resources l)epartrnent - Groundwater Management Programs, Grants Pass, Oregon Assisted the County and the City o1' Grants Pass with development of a groundwater managemcnt program. The agencies were concerned about water availability to meet demand and impacts of rapid growth and development on existing resources. Spccific conoerns included overuse of limited groundwater, contamination potential from septic systemso andprioritization of urbanizing areas to receive City sewer service. The program was developed with input from the Oregon Department of Water Resources (OWRD). US Generating Company - Groundwater Supply, Hermiston, Oregon Investigated feasibility of using groundwater as a backup water supply for a new steam powered generating plant. Feasibility is dependent on capacity of aquifers to yield 3 mgd, water quality, and potential for inclusion of the project area in a critical groundwater ur.u by the Oregon Water Resources Department (OWRD). Reviewed pump test results, analyzed regional geology and aquifer systems, consulted with OWRD staff and legal representatives ofthe owner' and prepared a comprehensive report of findings, conclusions and recommendations. Grants Pnss Irrigation District - Water Management plan, (irants pass, oregon Conducted five-year study to determine irrigation necds, water availability, delivery methods and the role of the District in an urbanizing environment. Work included evaluating fishery issues as they related to the District's diversion dam and distribution system. Assisted theDistrict with development of a water conservation plan, distribution alternatives and cost analyses, public workshop presentations and report preparation. Helped facilitate meetings of the l8-person Oversight Committee and interfaced regularly with special interest groups and several federal and state agencies. City of Bend - Wastewater Management System, Groundwater Invcstigation, Bend, Oregon The City of Bend upgraded and expanded its wastewater collection, treatment and disposal system under an EPA grant during 1978-1982, Characteristics of aquifers in the Bend- Redmond area wete needed in order to evaluate feasibility of alternative disposal methods for treated wastewater from the new treatment plant, These characteristics included type and distribution of geologic formations, number of aquifer zones, locations of aquif'er zonss in the basalt and sedimentary formations, yield potential, degree of natural protection, flow directionsof groundwater in the aquif'ers and suitable land for disposal sites. David Newton, while employed by Century West Engineering Coqporation, designed and irnplemented an exploration program that identified the geological and groundwater characteristics over a 500- square-mile area of central Oregon from Bend to Redmond. The program identified the stratigraphic sequenc€ of multi-layer basalt flows and interlayered sedimentary materials and determined downward water infiltration potential. The program also determined aquif'er locations in the stratigraphic sequence and groundwater flow directions relative to transport of contaminants should they reach the aquifers. The solution was containment of wastewater in large lagoons, Availability of suitable land for the 160-acre lagoon system and geologic L u BA 20 1 e - 136 AM EU#* fi _8fifi€p"tu??gg"1ma Attachment 7 Newton Consultants, Inc.Pags 10 David J. Newton - conditions, including presence of rock, that would impact development of the system were also determined. David prepared subsurface cross-sections by drilling and sampling, television logging of boreholes, and geophysical logging of boreholes. Coordination with OWRD, USGS, DEQ and the EPA was essential. David personally informed the agencies on progress and worked closely with agency representatives to resolve project issues. L u BA 20 I e -136 AM EUAX* fi Ff&Ep"idq?qg"1m0