HomeMy WebLinkAbout2021-11-04 Anuta Email RE File Nos 247-21-000553-MC and 247-21-000920-A1
Tracy Griffin
From:Karl Anuta <kga@integra.net>
Sent:Thursday, November 4, 2021 5:47 PM
To:Angie Brewer
Cc:'Jeffrey L. Kleinman'
Subject:RE: File Nos. 247-21-000553-MC and 247-21-000920-A (Central Land and Cattle
Company, LLC/DeLashmutt)
Attachments:Anuta Summary of Water Facts with Ex sm.pdf
[EXTERNAL EMAIL]
[EXTERNAL EMAIL]
Ms. Brewer – Here is an additional Memo submitted on behalf of Ms. Gould
Karl G. Anuta
503-827-0320
From: Jeffrey L. Kleinman <kleinmanjl@aol.com>
Sent: Thursday, November 4, 2021 3:34 PM
To: angie.brewer@deschutes.org
Subject: File Nos. 247-21-000553-MC and 247-21-000920-A (Central Land and Cattle Company, LLC/DeLashmutt)
Hi Angie,
Attached please find two technical memoranda from John Lambie. Kindly place them in the record in the above
proceeding.
Thank you.
Jeffrey L. Kleinman
Attorney at Law
The Ambassador
1207 SW Sixth Avenue
Portland, OR 97204
Tel: (503) 248-0808
Fax: (503) 228-4529
Email: KleinmanJL@aol.com
You don't often get email from kga@integra.net. Learn why this is important
KARL G. ANUTA
LAW OFFICE OF KARL G. ANUTA, P.C.
735 SW FIRST AVENUE, 2ND FLOOR
TRIAL ATTORNEY PORTLAND, OREGON 97204 E-MAIL
LICENSED IN (503) 827-0320 KGA@INTEGRA.NET
OREGON & WASHINGTON FACSIMILE (503) 386-2168
TO: Hearings Officer
FR: Karl G. Anuta
DT: November 4, 2021
RE: Deschutes County Case #’s:
247-21-000508-SP and 247-21-000849-A (Central Land and Cattle)
- 80 OLU Site Plan approval - Thornburgh Resort
247-21-000553-MC and 247-21-000920-A (Central Land and
Cattle) - OLU Expansion - Thornburgh Resort
SUMMARY OF WATER RELATED FACTS
SUPPORTING GOULD APPEAL
This is intended to be a Summary of the Water Permit situation. I will
attempt to just hit the proverbial high points, rather than repeating all the detailed
analysis of why the Findings in the underlying decision were defective.
Intended Use Of Water
The current applications seek approval of a Site Plan for 80 Overnight
Lodging Units (OLU), and expansion of the number of homes vs. OLU ratio
authorized at the Thornburgh Resort. Both those types of uses will result in
significant water use.
The applicant has issued a Water Management Conservation Plan
(WMCP) that documents that. A copy is provided as Anuta Ex.#1. This WMCP
outlines considerable water use.
It should be noted, this WMCP was created and the water use calculations
were completed before the proposed increase in homes to OLU ratio. It would
appear then, that the calculated water use outlined in this WMCP likely
understates the actual use at the Resort - because the WMCP was not premised
on the addition of over 200 (likely “trophy” style) homes.
It should also be noted that the underlying Staff Report appears to rely on
Page 1 of 7
the approval of this WMCP by the Oregon Water Resources Dept (OWRD).
However, the WCMP was subsequently withdrawn by the applicant and a
Stipulation filed in court that this WMCP has no further legal effect. A copy of that
Stipulation is provided as Anuta Ex. #2.
Background On Water Use Permits
When a person or company is issued a Permit to appropriate water, by the
OWRD, that Permit comes with a requirement that the permittee start
appropriating or using water by a specified date. That is called a Completion date
or C-Date.
If the holder of the Permit has not put the water to use by the C-Date, then
the permit expires. No water can then be legally withdrawn or used under that
permit.
That approach is a fundamental premise of the “use it or lose it” doctrine in
western water law. And for that doctrine to work as it was designed, that
approach makes sense.
People should not be allowed to speculate in or hold unused water. They
either need to use it in the period allowed by law, or release their claim on it so
that the next person in line - or in time - can make use of it.
A Permit holder can, if - an only if - they show that they made reasonable
efforts to put the water to use, get an Extension of a C-Date. Here, the Resort
sought just such an Extension from OWRD.
Ms. Gould opposed, because under Oregon water law a permittee has to
show that they put at least some water to use, or drilled wells, or constructed
delivery works, or made some other similar effort to physically divert or withdraw
the water at issue before the C-Date passes. We believe the evidence before the
OWRD will ultimately show that the Resort had not done any of that, by April 3,
2018.1
Here the OWRD initially issued an Extension to the Resort. However, the
agency ultimately withdrew that Extension - by an Order dated January 31, 2019.
A copy of that Order is attached as Anuta Ex. #3. The OWRD instead sent the
matter to Contested Case, after concluding as a matter of law that Ms. Gould
had raised significant issues as to whether the Resort Permit could legally be
1 There is case law in Oregon confirming that a permittee cannot rely on conduct outside of the
permit period, to meet its requirement of beneficial use. That is a legal issue that the ALJ Hearing the
OWRD Contested Case will ultimately have to address.
Page 2 of 7
extended. Id. No Hearing on that issue has to date been scheduled or occurred,
and no decision issued.
Impact Of Propose Resort
It is already proven (and accepted by the courts) that this applicant’s:
“consumptive use of groundwater is anticipated to impact an offsite
fish-bearing stream, Whychus Creek, by reducing instream water
volumes and increasing water temperatures.”
Gould v. Deschutes County, __ Or LUBA ___, ___(2021)(LUBA #2020-095 June
11, 2021 Slip Op. p.12) citing Gould v. Deschutes County, 79 Or LUBA 561
(2019), aff’d 310 Or App 868 (2021). It is precisely because of this accepted fact,
that water availability is such an important consideration in the approval process
for these two applications.
Availability Of Water
The Resort currently holds a Permit G-17036, that would have allowed
them to drill 6 wells - from which the water for the OLU’s and the rest of
previously approved Resort would ultimately have come. A copy of that Permit is
attached as Anuta Ex. #4. However, that Permit has - by its own terms - expired.
Id. Even the Resort admits the C-Date on its Permit was April 3, 2018.2
No Extension of that Permit currently exists. So under that Permit, the
Resort can only use the amount of water that it had already put to beneficial use
under the Permit before the C-Date.
That amount is zero. And the Resort admits that is the case. As the Resort
WMCP repeatedly admits: “Thornburgh’s water system has not yet been
developed and to date has not utilized any permitted water.”3
The OWRD also agrees that so far, Thornburg has reported no water
usage of any sort. I have attached a highlighted email that confirms this, dated
April 16, 2020. It is marked as Anuta Ex. #5.
2 Ex.#1 - Resort WMCP p.8 (“Water right Inventory” Table listing “Authorized C-Date” as “April 3,
2018").
3 Ex.#1 - Resort WMCP p.7 §2.04 (discussion of “Historic Water Use.”). See also, WMCP p.8
(“Water right Inventory” Table listing amount of “Actual Diversion” to date as “0 cfs (00 gpm)”); WMCP p.11
§3.02 (“Thornburgh’s water system has not yet been developed, and no water use has been measured
or reported to date.”)(emphasis added); and WMCP p.13 §4.01 (“...the water system is not yet
developed.”).
Page 3 of 7
The Resort also admitted in its own WMCP, that it “will require an OWRD
Extension of Time” in order to be able to make use of water under the Permit.4
So the bottom line here, at least for you, is that the Record in front of you
shows there is no water currently available to the Resort under the existing
Permit.
Recognizing that, the Resort has now applied for three additional Permits,
for water that it hopes to use at the Resort. Those are:
1 - LL-1879 - A Limited License for use of Quasi-Municipal water for
construction and operation of the Resort;
2 - T-13703 - A Temporary Transfer of another Permit to be
Temporarily used at the Resort; and
3 - G-19139 - An entirely new Ground Water Permit, using more
wells than the currently expired Permit.
The Limited License (LL-1879) had a host of problems, including the fact that
one of the wells proposed for use is a well that the County required be
abandoned as part of the Resort land use approval. A copy of Ms. Gould’s
comments on that application, which outlined the many problems and provided
the maps and documents proving that the Resort was proposing to act contrary to
its prior representations about well abandonment (representations on which the
County relied in approving the Resort) are attached as Anuta Ex. #6.
The Limited License has already been denied by OWRD. That denial
specifically occurred because water was not available within the capacity of
the resource. A copy of that Denial is attached as Anuta Ex. #7. The underlying
Groundwater Review by OWRD is attached (and highlight in pertinent points) as
Anuta Ex. #8.
The Temporary Transfer (T-13703) has not yet been denied, but the wells
involved in that application are the same as those involved in the Limited License.
Attached as Anuta Ex. #9 are Ms. Goulds comments on that proposed transfer,
which include specific identification (both in text and on maps) the wells involved -
as well as an outline of a host of other problems with that application, some or all
of which will likely result in the denial of the proposed transfer.
The new “back up” Ground Water Permit (G-19139) is also likely to be
denied. The map for the wells in that application is attached as Anuta Ex. #10.
4 See, Ex.#1 - WMCP p.16 §5.02.
Page 4 of 7
That application seeks to use the same wells that the OWRD already found in the
LL-1879 Denial do not have water available within the capacity of the
resource. Thus it is highly unlikely that application will be approved and a Permit
issued.
It does not appear to me that the applicant has fully disclosed all the
information that is in these comments, to the County, in its application. Thus,
even if FMP Condition #10 was hypothetically purely “informational” the applicant
has not met the requirements of that Condition.
To the extent that the applicant has to, at each stage, prove up that water
is available for this Resort - that clearly is not the case here.
Mitigation
As part of its Conditions of approval, the applicant must prove it has the
ability to provide the Mitigation it agreed to with the Oregon Department of Fish &
Wildlife (ODFW). Here, the applicant has not done that, and likely cannot do that.
The applicant has not done that because it has not obtained the instream
water right on Deep Creek that it promised. The ODFW Mitigation Agreement
(which is effectively incorporated into the land use approval conditions) requires
that cold spring surface flows of Deep Canyon Creek (after the two ponds there
are completely removed - which to date has not occurred) be put instream.
Those Deep Canyon Creek surface flows must be dedicated and
permanently protected Instream, in order to constitute mitigation for the harm
that is already known to potentially occur if the Resort ever uses the 6 wells that it
originally proposed. No such instream right currently exists.
Currently the Deep Canyon Creek surface water rights that the applicant
originally pledged as mitigation do not even exist as such. Those rights have
instead been “permanently” transferred by their former owner (Big Falls Ranch) to
use via ground water.
The Resort recently obtained an Assignment of those rights, from Big Falls
Ranch, to the Resort. As a result, the Resort appears to now own those rights.
However, in order to put those rights to use as mitigation, the applicant would
have to do the following:
(1) Apply for a transfer of those rights back from ground water to
surface water;
(2) Obtain an OWRD Order transferring those rights back to
Page 5 of 7
surface water;
(3) Apply for a transfer of those surface water irrigation diversion
rights to a different “use” i.e. to an Instream use;
(4) Obtain an Order approving that transfer of use; and
(5) Completely remove the impoundments that create the two
ponds on Deep Canyon Creek, so that the cold clean spring
water flows unimpeded to the Deschutes.5
Here is a simplistic effort at providing that outline as a Timeline:
Promise to provide Deep Canyon Creek We are Here Request to transfer rights
Deep Canyon Creek water right transferred l back to surface water
Surface water rights to Ground Water l l
protected Instream l l l
l l l l
V V V V
l-------------------------------l---------------------------l---------------------------l-----------------
Order approving Application to transfer Order approving Removal of all
transfer back use of same rights transfer Instream impoundment
l Instream l Structures
l l l l
V V V V
l-------------------------------l-----------------------------l-------------------------l-----------------
Mitigation actually in place and available
l
V
---------l--------------------
As you can hopefully see, much remains to be done before the water that was
promised under the ODFW Mitigation Agreement is actually available.
In addition, it is highly questionable whether - if all of the outlined steps
occur - there will actually be any mitigation water there. That is because the
groundwater pumping and declines in the area have likely already eliminated the
5 Currently a head gate on the lower pond has been removed, but the concrete impoundment
structure still exists, and still ponds water. The other pond has, to my knowledge, also not been removed.
Page 6 of 7
flow of the Deep Creek Canyon springs at most (if not all) time of the year.
We had two Technical Memorandum’s completed by an exceptionally well
qualified Certified Water Rights Examiner. Mr. Kleinman has already submitted
those. They clearly show that even if the surface water rights that were pledged
as mitigation are someday transferred back and and turned into instream water
rights, there is likely be no actual benefit because there will be no actual surface
flows in Deep Canyon Creek.
Staff’s approval of these two applications was error. For all the reasons
both I and Mr. Kleinman have noted, you should grant the appeal and remand
this matter to Staff.
Respectfully Submitted,
/s/ Karl G. Anuta
Karl G. Anuta
Page 7 of 7
11/5/2020 Water Right Services, LLC Page 1 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
WATER MANAGEMENT AND
CONSERVATION PLAN
PREPARED FOR
PINNACLE UTILITIES, LLC
THORNBURGH RESORT
REDMOND, OREGON
OCTOBER, 2020
PREPARED BY
WATER RIGHT SERVICES, LLC
PO BOX 1830, BEND, OR 97709
WWW.OREGONWATER.US
JOHN A. SHORT CCB # 197121
JOHNSHORT@USA.COM
541-389-2837
Anuta Exhibit 1 - Page 1 of 37
11/5/2020 Water Right Services, LLC Page 2 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
TABLE OF CONTENTS
PAGE
1. OAR 690-086-0125 WATER MANAGEMENT AND CONSERVATION PLAN ............. 4
1.01 SUPPLIER .................................................................................................................. 4
1.02 REASON FOR SUBMITTAL OF WMCP ................................................................ 4
1.03 OAR 690-086-0125(5) AFFECTED LOCAL GOVERNMENTS............................. 4
1.04 OAR 690-086-0125(6) PROPOSED DATE FOR SUBMITTAL OF UPDATES .... 4
1.05 OAR 690-086-0125(7) METER INSTALLATION STATUS ................................... 4
2. OAR 690-086-0140 WATER SUPPLIER DESCRIPTION .................................................. 4
2.01 OAR 690-086-0140(1) WATER SOURCES ............................................................. 4
2.02 OAR 690-086-0140(2) SERVICE AREA AND POPULATION .............................. 5
2.03 OAR 690-086-0140(3) PRESENT AND FUTURE ADEQUACY OF WATER
SUPPLY ..................................................................................................................... 7
2.04 OAR 690-086-0140(4) HISTORIC WATER USE .................................................... 7
2.05 OAR 690-086-0140(5) WATER RIGHTS ................................................................. 8
2.06 OAR 690-086-0140(6) WATER CUSTOMERS ....................................................... 9
2.07 OAR 690-086-0140(7) INTERCONNECTIONS WITH OTHER MUNICIPAL
SUPPLIERS ............................................................................................................. 11
2.08 OAR 690-086-0140(8) SYSTEM SCHEMATIC .................................................... 11
2.09 OAR 690-086-0140(9) SYSTEM LOSSES ............................................................. 11
3. OAR 690-086-0150 WATER CONSERVATION ............................................................... 11
3.01 OAR 690-086-0150(1) PROGRESS REPORT FROM PREVIOUSLY
APPROVED WMCP ................................................................................................ 11
3.02 OAR 690-086-0150(2) WATER USE MEASUREMENT AND REPORTING ..... 11
3.03 OAR 690-086-0150(3) OTHER CONSERVATION MEASURES ........................ 11
3.04 OAR 690-086-0150(4) PLANNED CONSERVATION MEASURES ................... 12
A. OAR 690-086-0150(4)(a) Annual Water Audits - Not currently
performed, as system is not yet constructed. ................................................ 12
B. OAR 690-086-0150(4)(b) System Metering – Water System has not
yet been developed but will be fully metered when constructed. ................. 12
Anuta Exhibit 1 - Page 2 of 37
11/5/2020 Water Right Services, LLC Page 3 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
C. OAR 690-086-0150(4)(c) Meter Testing & Maintenance Program – Not
instituted to date, but a testing and maintenance plan will be developed
after construction. ......................................................................................... 12
D. OAR 690-086-0150(4)(d) Water Use Rate Structure – Not instituted to
date, but to be developed prior to water use. ................................................ 13
E. OAR 690-086-0150(4)(e) Leak Detection if System Leakage Exceeds
10% – Not instituted to date; to be developed in conjunction with
implementation of water audit program. ...................................................... 13
F. OAR 690-086-0150(4)(f) Water Conservation Public Education
Program – None to date but will be developed prior to unit sales. .............. 13
3.05 OAR 690-086-0150(5) MUNICIPAL WATER SUPPLIERS SERVING OVER
1,000 ......................................................................................................................... 13
4. OAR 690-086-0160 WATER CURTAILMENT ................................................................. 13
4.01 OAR 690-086-0160(1) CAPACITY AND PREVIOUS SUPPLY
DEFICIENCIES. ...................................................................................................... 13
4.02 OAR 690-086-0160(2-4) ALERT STAGES, TRIGGERS, AND CURTAILMENT
ACTIONS ................................................................................................................. 14
5. OAR 690-086-0170 WATER SUPPLY ............................................................................... 16
5.01 OAR 690-086-0170(1) CURRENT AND FUTURE SERVICE AREA .................. 16
5.02 OAR 690-086-0170(2) FULL EXERCISE OF WATER RIGHTS ......................... 16
5.03 OAR 690-086-0170(3) PROJECTED WATER DEMAND .................................... 16
5.04 OAR 690-086-0170(4) PROJECTED WATER NEEDS VS. CURRENT
SOURCES ................................................................................................................ 21
5.05 OAR 690-086-0170(5) ALTERNATIVES TO EXPANSION OF
APPROPRIATION................................................................................................... 21
5.06 OAR 690-086-0170(6) EXPANSION OF APPROPRIATION ............................... 23
5.07 OAR 690-086-0170(7) MITIGATION REQUIREMENTS .................................... 23
5.08 OAR 690-086-0170(8) ALTERNATIVE SOURCE ANALYSIS ........................... 24
Anuta Exhibit 1 - Page 3 of 37
11/5/2020 Water Right Services, LLC Page 4 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
1. OAR 690-086-0125 WATER MANAGEMENT AND CONSERVATION PLAN
(“WMCP”)
1.01 SUPPLIER
Pinnacle Utilities, LLC Attn: Kameron DeLashmutt 2447 NW Canyon Dr Redmond, OR 97756 541-350-8479
1.02 REASON FOR SUBMITTAL OF WMCP
Under water right Permit G-17036 Pinnacle must submit a WMCP to affected governments for
comment and to Oregon Water Resources Department (OWRD) pursuant to Oregon
Administrative Rules (OAR) Chapter 690, Division 86. Pinnacle Utilities, LLC (hereon referred to
as Pinnacle), is the water right holder and the entity responsible for supplying water to the planned
Thornburgh Resort.
1.03 OAR 690-086-0125(5) AFFECTED LOCAL GOVERNMENTS
Copies of this draft WMCP were made available to the following affected local government at
least 30 days prior to submitting to OWRD:
Deschutes County Planning Department. No substantive comments on the plan were received (see
attached County email).
1.04 OAR 690-086-0125(6) PROPOSED DATE FOR SUBMITTAL OF UPDATES
OWRD approves WMCP’s for a standard period of 10 years and requires the water supplier to
submit a progress report at the five-year mark. We propose to follow standard OWRD protocol and
submit the next WMCP 10 years after the issuance of OWRD’s Final Order approving this
WMCP, with a progress report within 5 years. Pinnacle proposes to submit its next plan update
within 10 years of OWRD’s Final Order approving this initial WMCP. This gives sufficient time
to develop the initial phase of the resort and begin using water and implementing conservation
measures as outlined by this plan.
1.05 OAR 690-086-0125(7) METER INSTALLATION STATUS
Not applicable at this time as the system is not built. Once built it will be fully metered.
2. OAR 690-086-0140 WATER SUPPLIER DESCRIPTION
2.01 OAR 690-086-0140(1) WATER SOURCES
Water supplies will be derived from 6 groundwater wells penetrating the Deschutes Formation
aquifer. Groundwater in the supplying aquifer is replenished by snow melt and precipitation
recharge on the east slope of the Cascade Mountains. There are 6 planned wells and a pumping
system feeding up to 4 above-ground concrete or steel reservoirs, along with irrigation lakes, all
included in the original permitting process, and a buried distribution network. The water will be
used for quasi-municipal purposes, including household uses, commercial use, and irrigation of the
golf course and other common areas—all of which uses were included in the original groundwater
permit. Water will be distributed through underground pipelines and a series of lakes. The system
will be designed to pump the entire permitted 9.28 cfs. At this time, Pinnacle does not have any
Anuta Exhibit 1 - Page 4 of 37
11/5/2020 Water Right Services, LLC Page 5 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
exchange agreements, intergovernmental cooperation agreements, and/or water supply or delivery
contracts.
Proposed Source Well Table
Well
#
Township Range Section QQ Location
1 15 S 12 E 28 SE NW 1800’ S, 2335’ E of NW Cor Sec 28
2 15 S 12 E 29 SE NW 1655’ S, 2750’ W of NE Cor Sec 29
3 15 S 12 E 21 SW SW 1100’ N, 400’ E of SW Cor Sec 21
4 15 S 12 E 20 NE SE 2885’ S, 750’ W of NE Cor Sec 20
5 15 S 12 E 20 SW NE 2590’ S, 1860’ W of NE Cor Sec 20
6 15 S 12 E 17 SE NW 2375’ S, 3615’ W of NE Cor Sec 17
Storage for non-irrigation water will consist of up to 4 above-ground steel or concrete tanks that
will be sized to provide sufficient capacity to meet peak demand including fire flow throughout the
project. Pump stations and pressure-reducing valves will deliver water through a PVC water main
and distribution network, maintaining appropriate pressure levels throughout the project. Irrigation
water will be temporarily stored in ponds located throughout the project which will be sized to
meet peak irrigation demand requirements. Water from the ponds will be pumped through a
separate irrigation pipe network for irrigation of golf course areas and standard irrigation areas.
Landscaping for private lots will be irrigated through the domestic supply system.
Non-Irrigation Storage Description
Reservoir Volume
1 130,000 gallons
2 300,000 gallons
3 160,000 gallons
4 40,000 gallons
Total 630,000 gallons
2.02 OAR 690-086-0140(2) SERVICE AREA AND POPULATION
The service area for the Thornburgh Resort water system is solely the Thornburgh Resort property.
See attached schematic map and G-17036 Permit Map. Thornburgh Resort is a planned destination
resort located in Deschutes County in Central Oregon, 8 miles west of Redmond, 12 miles north of
Bend. The Thornburgh Resort property consists of approximately 1,980 acres on the southerly and
westerly flanks of Cline Buttes, with a variety of undeveloped land including sloping terrain,
natural vegetation, ridgelines, and rock outcroppings.
Anuta Exhibit 1 - Page 5 of 37
11/5/2020 Water Right Services, LLC Page 6 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
Thornburgh Resort Development Location
Thornburgh Resort is still in the planning stages and has not yet been constructed. The Final
Master Plan for the Thornburgh Resort outlines a phased development approach. In total,
Thornburgh Resort is permitted for 1,425 Equivalent Dwelling Units (EDU) including 950
homesites and 475 cabins/cottages/townhomes. For projected population calculations, this plan
will utilize a fully planned occupancy rate of 2.5 people per EDU, in-line with area resorts.
Thornburgh Resort Estimated Total Project Population
BUILDING/FACILITY TYPE ESTIMATED
EQUIVALENT
DWELLING
UNITS
ESTIMATED
PROJECT
POPULATION
950 homesites 950 2,375
Cabins/Cottages/Townhomes/Overnight Lodging
Units
475 1,188
Miscellaneous--clubhouse, restaurant, spa,
fitness center, rec. facilities, administrative
buildings
0 0
TOTALS 1,425 3,563
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11/5/2020 Water Right Services, LLC Page 7 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
2.03 OAR 690-086-0140(3) PRESENT AND FUTURE ADEQUACY OF WATER
SUPPLY
At full build-out Thornburgh Resort plans to utilize the full rate (9.28 CFS) and duty (2,129 AF)
permitted by water right G-17036 (copy attached). Planning of the Resort and subsequent design
specifications were created with this rate and duty in mind. Quasi-municipal uses including Golf
Course Irrigation, Standard Irrigation, Reservoir Maintenance, and “Other” QM use (Domestic-
Residential/Commercial/Dust Abatement-Construction Water) are limited categorically by the
permit, thus design and construction will follow suit. As the water system is developed and actual
water use and demand data is collected, more analysis can be conducted to determine the adequacy
of the water supply for the future needs of the community.
An additional system reliability component is the mitigation requirement of Permit G-17036.
Permit G-17036 states that “the use of groundwater allowed under allowed under the terms of this
permit will not be subject to regulation for Scenic Waterway flows as long as mitigation is
maintained.” Mitigation elements are discussed later in this report.
2.04 OAR 690-086-0140(4) HISTORIC WATER USE
Thornburgh’s water system has not yet been developed and to date has not utilized any permitted
water. See Water Supply Section of this plan for projected water use information.
[CONT’D ON NEXT PAGE]
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PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
2.05 OAR 690-086-0140(5) WATER RIGHTS
Thornburgh Water Right Inventory
Appl # Permit
#
Cert
#
(Transfer #,
if any)
Priority
Date
Source Use Allowed Rate (cfs)
and Duty (AF)
Actual Diversion Authorized
C- Date
Threatened or
Endangered Species Affected?
Water
Quality Listed
Source in
Critical Groundwater Area?
Maximum Instantaneous Rate Diverted to
Date (cfs)
Maximum Annual Quantity
Diverted to Date (MG)
Average Monthly Diversion
(MG)
Average Daily Diversion
(Gallons)
G-16385
G-17036 February 9, 2005 6 wells in the Deschutes
River Basin
Quasi-Municipal
Uses,
including irrigation of golf courses
and commercial areas, and
maintenance
of reservoirs
9.28 cfs (4,165 gpm), limited to a
maximum annual
volume of 2,129 AF. Further limited by the
corresponding mitigation provided.
0 cfs
(00 gpm)
0 MG 0 MG 0
Gallons
April 3, 2018 None No No
Ground Water Permit G-17036 (2-9-2005) – This permit authorizes up to 9.28 cfs and 2,129 AF for Quasi-Municipal uses including
irrigation of golf courses and commercial areas, and maintenance of reservoirs. Period of use is Year-Round except for the seasonal limits
placed on irrigation use by the permit. The rate and volume are further limited by the corresponding mitigation provided. The maximum
volume for irrigation of 320 acres of golf courses shall not exceed 717 AF annually. The amount of water used for irrigation generally under
this right is limited to a diversion of 1/80th of 1 cfs and 3 AF for each acre irrigated during the irrigation season of each year. The amount of
golf course irrigation specifically under this right is further limited to a diversion of 2.24 AF for each acre irrigated during the irrigation
season of each year. The fully developed Mitigation Obligation for this right is 1,356 AF annually, to be provided within the General Zone of
Impact. Mitigation is to be provided prior to each stage of development under the permit. The use of groundwater allowed under the terms of
the permit is not subject to regulation for Scenic Waterway flows, so long as mitigation is maintained.
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2.06 OAR 690-086-0140(6) WATER CUSTOMERS
Pinnacle will solely provide water for the Thornburgh Resort development. This development will
utilize the water for various Quasi-Municipal (QM) uses. Golf Course Irrigation will be utilized by the
portion of development at Thornburgh Resort including three 18-hole golf courses, along with extensive
practice facilities. Standard Irrigation will be utilized by the portion of development at Thornburgh
Resort including landscaped grounds and common areas not falling on private lots or golf course areas
or reservoir areas. Reservoir Maintenance use will be utilized by the portion of development at
Thornburgh Resort including planned irrigation storage, recreational, and aesthetic lakes and reservoirs.
“Other” Quasi-Municipal uses will include Residential, Commercial, and Construction Water/Dust
Abatement Water. Domestic-Residential QM uses will be utilized by the portion of development at
Thornburgh Resort including 950 single-family homesites, and 475 Cabins/Cottages/Townhomes.
Commercial QM uses will be utilized by the portion of development at Thornburgh Resort including
Clubhouses, Restaurant, Spa, Wellness & Fitness Center, Pool and Water Sports Complex, a Beach Club
facility, and various administrative and maintenance facilities. Dust Abatement and Construction Water
will be utilized throughout the Resort as development occurs.
Projected Uses by Category
Type of QM
Use/Custom
er
Areas of Use Season Projected
Accounts
Annual/Diurnal Use Pattern
Golf Course
Irrigation
Golf Courses,
Driving Range,
Practice Area
Irrigation
Season
1 Use is highest during irrigation season;
use will be highest in the late evening
through early morning when
evapotranspiration is lowest to conserve
water. Use will be higher during
establishment of vegetation.
Standard
Irrigation
Common Areas,
General Grounds
Irrigation
Season
1 Use is highest during irrigation season;
use will be highest in the late evening
through early morning when
evapotranspiration is lowest to conserve
water. Use will be higher during
establishment of vegetation.
Reservoir
Maintenance
Irrigation,
Recreation and
Aesthetic
Lakes/Reservoirs
Year
Round
1 Seasonal pattern; highest use will occur
during the summer when evaporation rates
are high, lowest use will occur in winter
when evaporation rates are low
Domestic-
Residential
QM
Single Family
Homesites,
Cabins/Cottages/
Townhomes,
Overnight
Lodging Lots
Year
Round
1,425 No study has been performed for
Thornburgh Resort, use is expected to
follow typical American residential
patterns. Expected seasonal peaks will
occur during summer months and
weekends due to visitor influx.
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Inside Use (year-round):
a) Low during night, approx. 11pm-
5am
b) Highest use in morning, approx.
7am-11am
c) High evening use, approx. 6pm-
11pm
Outside Use (summer):
a) High, approx. 5am-10am
Commercial
QM
Clubhouses,
Welcome Center,
Restaurant, Spa,
Wellness &
Fitness Center,
Pool and Water
Sports Complex,
Beach Club,
Administrative/
Maintenance
Facilities
Year
Round
Approx. 20 Highly variable. Use will vary seasonally
with highest use in summer. Daily use will
be highest during daytime hours, although
will vary depending on facility type.
Construction
/ Dust
Abatement
Water
Throughout resort
as development
occurs
Year
Round
1 Highly variable. Highest use will occur
during peak construction times, mostly
limited to daytime hours Monday –
Friday, with highest use likely during
summer months when soil conditions are
driest.
Thornburgh expects to see highest uses early in the development to follow trends seen in recent
developments of other comparable resorts such as Eagle Crest Resort and Brasada Ranch in Crook
County. (These facilities are comparable as they are similar in nature and located in similar
environments, and soil types. Golf Course Irrigation and Standard Irrigation along with Reservoir
Maintenance and Construction/Dust Abatement Water will likely be the highest uses during the early
stages of development. As residential and commercial development occurs, the need for delivery of
water to customers will rise along with the need for fire protection flow. Thornburgh’s projected
residential flow requirement is 1,095 gallons per EDU per day. Because of the semiarid environment
and the likely use of many units for vacation homes, water consumption is expected to peak in the hot
summer months. While actual water use may be lower than 1,095 gallons per day, due to proposed
conservation measures, this daily water supply estimate allows for a margin of supply safety. Following
recommendations from the Redmond Rural Fire District, a water supply for fire protection in semiarid
Oregon requires providing 2,250 gpm for the planned commercial facilities at Thornburgh Resort.
Thornburgh’s projected use by category will be comparable to area resorts. For Residential-Domestic
Use, Thornburgh projects 1,095 gpd/EDU compared to the 1,250 gpd/EDU projected at both Brasada
Ranch and Eagle Crest Resort. Eagle Crest is a fully developed destination resort with a variety of
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recreational facilities including two 18-hole golf courses, 1,463 homes, 24 commercial water users, and
143 irrigation services in its 2015 WMCP. According to Oregon Water Utilities, LLC, the owners of the
Eagle Crest utilities, Eagle Crest Resort used approximately 3,208,659 gallons per day during its peak
demand days. Of that, 1,534,598 gallons per day were used for its two 18-hole golf courses.
Thornburgh projects delivering 717 AF annually to its multiple 18-hole golf courses, and practice areas.
2.07 OAR 690-086-0140(7) INTERCONNECTIONS WITH OTHER MUNICIPAL
SUPPLIERS
No interconnections exist with other municipal supply systems. See further discussion of
interconnection below in Section 5.05(B) below, covering OAR 690-086-0170(5)(b).
2.08 OAR 690-086-0140(8) SYSTEM SCHEMATIC
As discussed herein, Thornburgh has not begun construction of the water system. Attached to this
WMCP is the approved Final Master Plan Water System map that provides a rough layout water system
and the proposed underground distribution lines discussed and described herein, along with its proposed
wells and reservoirs. As the project develops its water system it will be able to provide “schematics” of
the system as built.
2.09 OAR 690-086-0140(9) SYSTEM LOSSES
During the installation of the distribution system, the system will be pressure tested to assure water-tight
installations. Once constructed, little leakage is expected from the new water system due to new piping
and pressure testing. Following installation of the water system, a water audit estimating water loss will
begin within the first year of water usage.
3. OAR 690-086-0150 WATER CONSERVATION
3.01 OAR 690-086-0150(1) PROGRESS REPORT FROM PREVIOUSLY APPROVED
WMCP
Not applicable – this is the first plan.
3.02 OAR 690-086-0150(2) WATER USE MEASUREMENT AND REPORTING
Thornburgh’s water system has not yet been developed, and no water use has been measured or reported
to date. Water use reporting is required by Permit G-17036. As outlined in Permit G-17036, Pinnacle
will install totalizing flow meters at each source well after well development occurs. Data will be
collected, and records kept so that monthly water use reports can be submitted on an annual basis at a
minimum. The program will comply with the measurement standards in OAR Chapter 690 Division 85.
3.03 OAR 690-086-0150(3) OTHER CONSERVATION MEASURES
Conservation and preservation of natural features has been a constant throughout the resort’s planning
process. While Thornburgh Resort has not yet implemented any conservation measures as it hasn’t
begun development, it is committed to water conservation as a foundation of the development. The
resort’s Architectural Design Guidelines, a draft of which was approved by Deschutes County as part of
the Conceptual Master Plan, strongly encourage the use of techniques that limit the building’s water
demands, including the use of efficient water fixtures, drought tolerant plants, landscape materials
indigenous to the area, xeriscaping, and limited turf areas. Landscape designs require that strong
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consideration be given to the residences water usage and conservation. Thornburgh’s Architectural
Design Committee will oversee the implementation of the landscaping guidelines that address land and
water conservation. The committee has the authority to approve or disapprove of all landscape plans for
individual residences that do not meet the resort design guidelines or its intent.
In addition, the resort will implement a system of reuse of its treated wastewater for irrigation of the golf
course. The golf course irrigation system was designed complete with a mixing station to mix the fresh
water with the treated water for use on the golf course. As detailed below, all of the systems are being
designed to be fully metered allowing for accurate auditing of use and system losses.
3.04 OAR 690-086-0150(4) PLANNED CONSERVATION MEASURES
A. OAR 690-086-0150(4)(a) Annual Water Audits - Not currently performed, as
system is not yet constructed.
Five-Year Benchmarks:
By end of 2024 (within 5 years of WMCP approval): will implement an annual
water audit program utilizing a systematic and documented methodology for
estimating any un-metered authorized or unauthorized water use. The planned
annual water audit program will also include methods to estimate non-revenue
water use including real system losses (such as leakage) and apparent losses (such
as meter error, billing issues, fire hydrant testing, construction water, dust
abatement water etc.). A water audit estimating water loss will begin within the
first year of water usage.
B. OAR 690-086-0150(4)(b) System Metering – Water System has not yet been
developed but will be fully metered when constructed.
Five-Year Benchmarks:
Beginning in 2020: Develop planning measures that call for the installation of
meters throughout water service connections and source wells in the development.
2020-2024 (to begin after WMCP approval): Install totalizing flow meters as
wells are developed and install meters for individual water service connections
throughout the Resort as lots and facilities are developed. Begin collecting and
organizing water use data for all meters once installed.
C. OAR 690-086-0150(4)(c) Meter Testing & Maintenance Program – Not instituted
to date, but a testing and maintenance plan will be developed after construction.
Five-Year Benchmark:
2020-2024: Typical expected useful life of water meters is 20-25 years, therefore
few problems are anticipated during this initial phase of development. Meters will
be tested if a problem is suspected or if requested by a customer/user. Source meters
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will be tested, calibrated and maintained within 5 years after initial installation (not
expected to occur within the WMCP update timeframe).
D. OAR 690-086-0150(4)(d) Water Use Rate Structure – Not instituted to date, but
to be developed prior to water use.
Five-Year Benchmark:
2020-2024 (within 5 years of WMCP approval): Implement most appropriate rate
structures based, at least in part, on metered water use by each residential service
connection.
E. OAR 690-086-0150(4)(e) Leak Detection if System Leakage Exceeds 10% – Not
instituted to date; to be developed in conjunction with implementation of water audit program.
Two-Year Benchmark:
2020-2024 (within 2 years of WMCP approval): During the installation of the
distribution system, the system will be pressure tested to assure water-tight
installations. Following future water audits, if leakage exceeds 10%, Thornburgh
shall develop a regularly scheduled and systematic program detecting and
addressing leaks in transmission and distribution lines, consistent with the standards
of the American Water Works Association’s standards (not expected to occur within
the WMCP update timeframe).
As noted above, once the system is built Pinnacle Utilities, LLC will ensure the
systems comply with the measurement standards under OAR Chapter 690, Division
85.
F. OAR 690-086-0150(4)(f) Water Conservation Public Education Program – None
to date but will be developed prior to unit sales.
Five-Year Benchmark:
2019-2014 (within 5 years of WMCP approval): Review and select preferred
water conservation educational materials for distribution and/or made available to
residents and water customers within 5 years.
3.05 OAR 690-086-0150(5) MUNICIPAL WATER SUPPLIERS SERVING OVER 1,000
This requirement is not applicable at this time, as the Resort is not yet serving anyone. The requirement
will be addressed, if applicable, in the next plan update.
4. OAR 690-086-0160 WATER CURTAILMENT
4.01 OAR 690-086-0160(1) CAPACITY AND PREVIOUS SUPPLY DEFICIENCIES.
No supply deficiencies have occurred since the water system is not yet developed.
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4.02 OAR 690-086-0160(2-4) ALERT STAGES, TRIGGERS, AND CURTAILMENT
ACTIONS
Thornburgh Resort will employ a three-stage alert system to be overseen by Pinnacle Utilities, LLC
water system manager. Determination of stages and authority and enforcement of Water Curtailment
actions will be the responsibility of the Pinnacle Utilities, LLC water system manager.
Thornburgh’s three curtailment stages increase in severity and are as follows:
Stage I: Mild Alert
Stage II: Serious Alert
Stage III: Critical Alert
Water Shortage Stages and Initiating Conditions
Stage Initiating
Conditions
Curtailment Actions
Stage I:
Mild Alert
Water use has
reached 80% of
capacity;
or wells are
producing no more
than 90% of
capacity;
or Drought
Emergency for
Deschutes County
declared by the
Governor
Notice to the public of the water supply shortage condition level, cause
of condition, consequences of moving to next stage, and actions that
will help alleviate the shortage condition. This information will also be
posted in public areas (ex. Clubhouse, Welcome Center, Rec. Facilities
etc.), and posted within online community websites and/or social
media.
Automated Standard Irrigation of common areas will be reduced 10%
from normal watering cycles.
Request Residential water users take the following voluntary actions:
• Domestic watering of landscaping restricted to the evening or
early morning.
• Limit car washing, shower times, dishwasher and laundry use,
washing of patios and other hard-scaping, and other ordinary
types of water use.
Stage II:
Serious
Alert
Water use has
reached 90% of
capacity;
or wells are
producing no more
than 75% of
capacity.
Notice (including door to door contact) to the public of the water
supply shortage condition level, cause of condition, consequences of
moving to next stage, and actions that will help alleviate the shortage
condition. This information will also be posted in public areas (ex.
Clubhouse, Welcome Center, Rec. Facilities etc.), and posted within
online community websites and/or social media.
Automated Standard Irrigation of common area will be eliminated.
Golf Course Irrigation will be reduced at least 20%.
Eliminate the replenishment of any recreational/aesthetic lakes due to
evaporation losses.
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Eliminate dust abatement uses.
Fire hydrants to be used for emergencies only.
Prohibit new connections until shortage conditions are alleviated.
Investigate alternative sources of supply (water tank trucks, graywater,
interconnections with other water systems, new or existing wells, etc.)
in order that they be immediately available should the shortage become
elevated to Stage III: Critical Alert
Residential water user requirements:
• Domestic watering of landscaping strictly limited to alternate
day schedule in the evening or early morning to be set by
Pinnacle water system manager.
• The following uses prohibited: vehicle, boat, trailer, patio and
hardscaping, washing, planting new lawns or landscaping
requiring irrigation.
• Encourage limited shower times, dishwasher and laundry use,
toilet flushing etc.
Stage III:
Critical
Alert
Water use has
reached 95% of
capacity;
or wells are
producing less than
70% of capacity;
or there is an
immediate threat to
public health or
safety due to a
contamination or
catastrophic loss of
water.
Notice (including door to door contact and notice left on-site) to the
public of the water supply shortage condition level, cause of condition,
and actions that will help alleviate the shortage condition. This
information will also be posted in public areas (ex. Clubhouse,
Welcome Center, Rec. Facilities etc.), and posted within online
community websites and/or social media.
Automated Standard Irrigation eliminated.
Golf Course Irrigation will be eliminated, except greens and tee areas
allowed 30% reduced irrigation sets at the discretion of the Pinnacle
water system manager depending on the specific circumstances
surrounding the Critical Alert.
Eliminate the replenishment of any recreational/aesthetic lakes due to
evaporation losses.
Eliminate dust abatement uses.
Fire hydrants to be used for emergencies only.
Residential water user requirements:
• All outdoor use prohibited.
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• Indoor use limited to 68 gallons per person per day to serve
basic health and sanitation needs; or 50 gallons per day in the
case of severe or prolonged shortage or other emergency.
As needed, issue water boil notices prior to system failure.
Connect to alternative sources identified during Stage II Serious Alert
if available.
As needed, provide information about where to obtain water for
cooking and sanitation.
5. OAR 690-086-0170 WATER SUPPLY
5.01 OAR 690-086-0170(1) CURRENT AND FUTURE SERVICE AREA
Thornburgh Resort is currently undeveloped. See attached Permit G-17036 map at the end of this
document. Due to fluctuations in the real estate market, population projections are highly uncertain.
Thornburgh projected the number of EDU’s and population using a professional real estate economist
and by using data from comparable developments and destination resorts in Oregon. Projected
population is expected to be approximately 2.5 persons per Equivalent Dwelling Unit (EDU), depicted
on the following table.
Projected Equivalent Dwelling Units and Population at Thornburgh Resort
2020 2024 2029 2034 Build-out
Units 0 405 855 1305 1,425
Population 0 1,012 2,137 3,262 3,563
5.02 OAR 690-086-0170(2) FULL EXERCISE OF WATER RIGHTS
Water Right Permit G-17036 has a projected completion date of 10/1/2035. This will require an OWRD
Extension of Time. As this report depicts, Thornburgh Resort will have considerable water demand
needs including significant domestic-residential and golf course irrigation uses. As the resort develops
water demand is expected to grow in phases tied to building activity. Currently full build-out is expected
to occur in 2035, at that time Thornburgh Resort expects to fully exercise Permit G-17036. However, it
is quite possible that full beneficial use of the permit will occur prior to build-out, due to water demand
for peak flows during hot summer days when fire danger is highest, and potential uses such as fire flow
and flushing of hydrants for maintenance or entire system contamination flushing may occur.
5.03 OAR 690-086-0170(3) PROJECTED WATER DEMAND
Because Thornburgh is not yet constructed, making 10- and 20-year projections is difficult. Using
master planning information, historical growth data from similar developments, and other real estate and
economic projections, we have produced reasonable expectations for growth at Thornburgh Resort. As
Thornburgh develops in the coming years, population and demand data will be collected and analyzed to
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better develop growth projections at that time. The following table depicts the projected number of
Equivalent Dwelling Units at Thornburgh at 5-year increments until build-out.
Projected Equivalent Dwelling Units at Thornburgh Resort
2019 2024 2029 2034 Build-out
Units 0 405 855 1305 1,425
Thornburgh master planning data combined with analysis of comparable resort development data
regarding expected demand and uses by category informed Thornburgh’s projected water use
calculations. Due to the seasonal nature of comparable resort developments, Thornburgh is projected to
require a rate sufficient to meet peak summer daily demand accounting for all uses. Averaged annually,
daily demand for each use category is expected to be much lower and annual use will fall within the
annual volume limits of the permit. The projections assume the following:
• Projected use by category will follow the pattern of development outlined by the Incremental
Development Plan in 5-year increments.
• Water use for peak day Golf Course Irrigation will be 8,126 gallons per acre per day, adhering to
total annual volume caps limited by Permit G-17036. Peak day usage will be met by storage in
the reservoirs and will be recovered over approximately 12 hours each cycle. Irrigation of golf
course areas will occur over approximately 8 hours at night, when evapotranspiration rates are
lowest.
• Water use for Standard Irrigation will be 3 AF per acre, with a peak rate of 1/80th cfs per acre
irrigated, adhering to total annual volume caps limited by Permit G-17036.
• Reservoir Maintenance use will be based on an evaporation rate of 2.66 AF per acre of surface
area.
• Thornburgh Resort requires 2,250 gpm (5.01 cfs) to ensure adequate instantaneous flow for the
fire suppression system. Thornburgh’s distribution system will be capable of delivering this flow,
and the storage system once fully developed will be capable of meeting this need, but
Thornburgh may require direct groundwater flow for the fire suppression system depending on
the stage of development. This need will be addressed after more analysis and water demand data
is collected. At this time, fire flow demand will be considered met by storage capacity.
• Thornburgh’s domestic peak-day demand is assumed to be 1,250 gallons for single family
homes, 1,050 gallons for Cabins/Cottages, and 850 gallons for condominiums; using a 90%
occupancy factor we assume an overall weighted average of 1095 gallons per EDU. As
development increases, Thornburgh’s peak day demand is therefore expected to increase at the
same rate as the rate of growth as the development.
10-Year Projections:
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10 Year Projected Peak Day Demand (Domestic-Residential QM)
855 EDU’s X 1,095.26 gpd/EDU = 936,225 gpd = 0.936 MGD
936,225 gpd / 1440 min/day = 650 gpm or 1.45 cfs
10 Year Projected Peak Hour Demand (Domestic-Residential QM)
650 gpm X 2.5 P.F. = 1,625 gpm or 3.62 cfs
10 Year Projected Peak Day Demand (Commercial QM)
101,959 gpd = 0.102 MGD
101,959 gpd / 1440 min/day = 71 gpm or 0.16 cfs
10 Year Projected Peak Hour Demand (Commercial QM)
71 gpm X 2.5 P.F. = 177.5 gpm or 0.40 cfs
10 Year Projected Peak Day Demand (Reservoir Maintenance)
30 ac X 2,740 gpd/ac = 82,189 gpd = 0.082 MGD
82,189 gpd / 1440 min/day = 57 gpm or 0.13 cfs
10 Year Projected Peak Day Demand (Standard Irrigation)
36.92 ac X 1/80th cfs = 0.46 cfs or 298,276 gpd = 0.298 MGD
298,276 gpd / 1440 min/day = 207 gpm
10 Year Projected Peak Hour Demand (Standard Irrigation)
298,276 gpd / 480 min (8-hour irrigation cycle) = 621 gpm or 1.38 cfs
10 Year Projected Peak Day Demand (Golf Course Irrigation)
110 ac X 8,126 gal/ac/day = 893,860 gpd = 0.894 MGD
893,860 gpd / 1440 min/day = 621 gpm or 1.38 cfs
10 Year Projected Peak Hour Demand (Golf Course Irrigation)
893,860 gpd / 480 min (8-hour irrigation cycle) = 1,862 gpm or 4.15 cfs
10 Year Projected Peak Day Demand (Construction/Dust Abatement)
Construction/Dust Abatement Water = 22 gpm or 0.06 cfs
Total Peak Day Demand
Total MDD = 1.45 cfs (Domestic-Residential) + 0.16 cfs (Commercial) + 0.13 cfs (Reservoir
Maintenance) + 0.46 cfs (Standard Irrigation) + 1.38 cfs (Golf Course Irrigation) + 0.06 cfs
(Construction/Dust Abatement) = 3.64 cfs
Thornburgh Resort Estimated 10-year Water Demand Source Requirement
Water Use
Estimated Consumption
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Domestic-Residential QM Use
Domestic-Residential Peak Day Demand 650 gpm or 1.45 cfs
Domestic-Residential Peak Hour
Demand
1,625 gpm or 3.62 cfs, provided by stored water in
reservoir
Fire Protection Flow Requirement 2,250 gpm or 5.01 cfs, provided by stored water in
reservoir
Commercial QM Use
Commercial Peak Day Demand 71 gpm or 0.16 cfs
Commercial Peak Hour Demand 177.5 gpm or 0.40 cfs, provided by stored water in
reservoir
Fire Protection Flow Requirement 2,250 gpm or 5.01 cfs, provided by stored water in
reservoir
Reservoir Maintenance Use
Reservoir Maintenance Peak Day
Demand
57 gpm or 0.13 cfs
Standard Irrigation Use
Standard Irrigation Peak Day Demand 207 gpm or 0.46 cfs
Standard Irrigation Peak Hour Demand 621 gpm or 1.38 cfs, provided by stored water in
reservoir
Golf Course Irrigation Use
Golf Course Irrigation Peak Day Demand 621 gpm or 1.38 cfs
Golf Course Irrigation Peak Hour
Demand
1,862 gpm or 4.15 cfs, provided by stored water in
reservoir
Construction/Dust Abatement Use
Construction/Dust Abatement Peak
Demand
22 gpm or 0.06 cfs
Total 10 Year Projected Demand
Requirement
1.45 cfs (Domestic-Residential) + 0.16 cfs (Commercial)
+ 0.13 cfs (Reservoir Maintenance)
+ 0.46 cfs (Standard Irrigation) + 1.38 cfs (Golf Course
Irrigation) + 0.06 cfs (Construction/Dust Abatement) =
3.64 cfs or 1,628 gpm
Build-out Projections:
Build-out Projected Peak Day Demand (Domestic-Residential QM)
1,425 EDU’s X 1,095.26 gpd/EDU = 1,560,746 gpd = 1.561 MGD
1,560,746 gpd / 1440 min/day = 1,084 gpm or 2.42 cfs
Build-out Projected Peak Hour Demand (Domestic-Residential QM)
1,084 gpm X 2.5 P.F. = 2,710 gpm or 6.04 cfs
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Build-out Projected Peak Day Demand (Commercial QM)
198,222 gpd = 0.198 MGD
198,222 gpd / 1440 min/day = 138 gpm or 0.31 cfs
Build-out Projected Peak Hour Demand (Commercial QM)
138 gpm X 2.5 P.F. = 345 gpm or 0.78 cfs
Build-out Projected Peak Day Demand (Reservoir Maintenance)
77.44 ac X 2,740 gpd/ac = 212,158 gpd = 0.212 MGD
212,158 gpd / 1440 min/day = 147 gpm or 0.33 cfs
Build-out Projected Peak Day Demand (Standard Irrigation)
36.92 ac X 1/80th cfs = 0.81 cfs or 523,414 gpd = 0.523 MGD or 0.81 cfs
523,414 gpd / 1440 min/day = 363 gpm
Build-out Projected Peak Hour Demand (Standard Irrigation)
523,414 gpd / 480 min (8-hour irrigation cycle) = 1,090 gpm or 2.92 cfs
Build-out Projected Peak Day Demand (Golf Course Irrigation)
320 ac X 8,126 gal/ac/day = 2,600,291 gpd = 2.600 MGD
2,600,291 gpd / 1440 min/day = 1,806 gpm or 4.02 cfs
Build-out Projected Peak Hour Demand (Golf Course Irrigation)
2,600,291 gpd / 480 min (8-hour irrigation cycle) = 5,417 gpm or 12.07 cfs
Total Peak Day Demand
Total PDD = 2.42 cfs (Domestic-Residential) + 0.31 cfs (Commercial) + 0.33 cfs (Reservoir
Maintenance) + 0.81 cfs (Standard Irrigation) + 4.02 cfs (Golf Course Irrigation) = 7.89 cfs
Thornburgh Resort Estimated Build-out Water Demand Source Requirement
Water Use
Estimated Consumption
Domestic-Residential QM Use
Domestic-Residential Peak Day Demand 1,084 gpm or 2.42 cfs
Domestic-Residential Peak Hour
Demand
2,710 gpm or 6.04 cfs, provided by stored water in
reservoir
Fire Protection Flow Requirement 2,250 gpm or 5.01 cfs, provided by stored water in
reservoir
Commercial QM Use
Commercial Peak Day Demand 138 gpm or 0.31 cfs
Commercial Peak Hour Demand 345 gpm or 0.78 cfs, provided by stored water in
reservoir
Anuta Exhibit 1 - Page 20 of 37
11/5/2020 Water Right Services, LLC Page 21 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
Fire Protection Flow Requirement 2,250 gpm or 5.01 cfs, provided by stored water in
reservoir
Reservoir Maintenance Use
Reservoir Maintenance Peak Day
Demand
147 gpm or 0.33 cfs
Standard Irrigation Use
Standard Irrigation Peak Day Demand 363 gpm or 0.81 cfs
Standard Irrigation Peak Hour Demand 1,090 gpm or 2.92 cfs, provided by stored water in
reservoir
Golf Course Irrigation Use
Golf Course Irrigation Peak Day Demand 1,806 gpm or 4.02 cfs
Golf Course Irrigation Peak Hour
Demand
5,417 gpm or 12.07 cfs, provided by stored water in
reservoir
Build-out Projected Demand
Requirement
2.42 cfs (Domestic-Residential) + 0.31 cfs (Commercial)
+ 0.33 cfs (Reservoir Maintenance) +
0.81 cfs (Standard Irrigation) + 4.02 cfs (Golf Course
Irrigation) = 7.89 cfs or 3,538 gpm
5.04 OAR 690-086-0170(4) PROJECTED WATER NEEDS VS. CURRENT SOURCES
Thornburgh projects initial water use demand of 3.64 cfs to satisfy demand through 10 years following
the start of construction (2029). At build-out (2035) Thornburgh projects demand of an additional 4.25
cfs for a total of 7.89 cfs. Permit G-17036 authorizes 9.28 cfs, an 18% margin of safety over projected
demand at build out.
5.05 OAR 690-086-0170(5) ALTERNATIVES TO EXPANSION OF APPROPRIATION
OAR 690-086-0170(5) requires an analysis of alternative sources of water if any expansion or initial
diversion of water allocated under existing permits is necessary to meet future water demand. Permit G-
17036 currently limits withdrawal to 9.28 cfs. Thornburgh is projected to require access to 3.64 cfs by
2029 and an additional 4.25 cfs by 2035, for a total of 7.89 cfs by 2035. The following subsections
analyze the extent to which the projected water needs can be met through other alternatives.
OAR 690-086-0170(5)(a) – Conservation as a water source – Because it is not yet
constructed, Thornburgh’s initial water use under Permit G-17036 is necessary to meet the
needs of development. Projected water demand will be met through a combination of wells
and on-site storage, coupled with the planned conservation measures outlined in the Water
Conservation Section of this Plan. Thornburgh is being designed to minimize non-essential
water use through conservation measures including architectural and landscape design
guidelines that promote xeriscaping, protect native vegetation and maintaining open space,
using drought resistant plants, and efficient plumbing fixtures and irrigation systems.
Water use will be highly efficient as all aspects of the water system will be planned and
developed with conservation in mind. Projected water demand for the development
assumes highly efficient water use as a result of these conservation measures. Commercial
Anuta Exhibit 1 - Page 21 of 37
11/5/2020 Water Right Services, LLC Page 22 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
facilities and residential units will contain all new water fixtures and water efficiency
devices, and landscaping guidelines that emphasize water conservation. As water use is
developed for golf course and standard irrigation and vegetation is established, irrigation
practices and use will be fine-tuned in response to analysis of need and growth, likely
resulting in further conservation. Although future measures will likely result in
conservation, at this time they cannot substitute for initial development of water use under
Permit G-17036.
OAR 690-086-0170(5)(b) – Municipal interconnections – At this time, there are no
planned interconnections with nearby water systems, although some preliminary
discussions have occurred. The westerly boundary of the City of Redmond is located
approximately 5 ¼ miles east of the site, across the Deschutes River canyon. The Eagle
Crest Resort is located, at its nearest point, approximately ¼ mile east of the Thornburgh
Resort site across a parcel of BLM owned land. These interconnections are options that
could offer a redundant margin of safety, although cost prohibitive in the case of the City
of Redmond. An interconnection with the Eagle Crest Resort is most feasible because of
the nearby location. Pinnacle has held preliminary discussions with Oregon Water, the
owners of the Eagle Crest water system, about the potential to interconnect the two
systems for the benefit of both communities. However, any interconnection between Eagle
Crest water system and the early phases of Thornburgh’s development would need to cover
a substantial distance, over some very challenging terrain. A connection would entail very
substantial costs that could easily run into the millions of dollars and would require a right
of way across federal lands. While applicant believes a ROW could possibly be obtained
after completing the required environmental studies, such studies are themselves very
costly. For example, in a previous BLM right of way the developer completed, over
$500,000 was incurred on the required environmental analysis alone. That said, an
interconnection to Eagle Crest is potentially possible, and something that is being
explored, but it would be a costly and complex undertaking that would entail very
substantial discussions, negotiations, analysis, and engineering among all the parties, that
by necessity, must include the US Government. Furthermore, Pinnacle does not
understand Eagle Crest to have any excess capacity that it could share with Thornburgh.
The combined water rights for Eagle Crest amount to only about 7 cfs, less than the
amount of Thornburgh’s permit and its projected needs.
Another alternative for supply would be the city of Redmond. This would entail
connecting to a major supply line in Redmond and bringing that supply down Hwy 126,
across the Deschutes River and then down Cline Falls Highway to the property. We
currently have utility easement across the Federal Lands this route would cross so would
not have to deal with that particular element. That said the cost of this supply would
exceed $5,000,000.
Therefore, interconnecting with another system does not at this time present a feasible
alternative supply for the Resort.
Anuta Exhibit 1 - Page 22 of 37
11/5/2020 Water Right Services, LLC Page 23 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
OAR 690-086-0170(5)(c) – Other low-cost conservation measures – OAR 690-086-
0170(5)(c) requires an assessment of whether the projected water needs can be satisfied
through other conservation measures that would provide water at a cost that is equal to or
less than the cost of other identified sources. As has been discussed above in Section 3.03
OAR 690-086-0150, conservation and preservation have been central themes of the
planning around the development of the resort. As discussed herein, the architectural
design guidelines focus attention on measures to minimize water use in the buildings as
well as the landscaping surrounding them. The Architectural and Landscape guidelines
provide the Architectural Committee the ability to deny proposed residences that do not
comply with the guidelines or their intent as it relates to conservation. As the community
grows and the waste-water treatment facility is built, treated water will be available for re-
use in irrigation. If needed, some further reductions can be made to the amount of
irrigation water used at individual homes, on the golf courses, in community open spaces,
and around other commercial facilities. At this time, since the water system has yet to be
constructed, additional conservation measures beyond those already planned and
mentioned here would be unlikely to provide water at equal or lower cost than the current
planned water source. Furthermore, it should be noted that since maximum conservation
practices will be implemented from the beginning of construction of this project, the water
demand will be somewhat “hardened,” thus leaving less slack in water use for tightening
up further with conservation.
5.06 OAR 690-086-0170(6) EXPANSION OF APPROPRIATION
Projected water demand calculations shown in above Section 4.05 justify the need for initial water use at
Thornburgh Resort. Thornburgh projects an initial maximum rate of 3.64 cfs (2.35 MG/day or 72.85
MG/month) to satisfy demand through 10 years following the start of construction (2029). At build-out
(2035) Thornburgh projects demand of an additional 4.25 cfs for a total of 7.89 cfs (5.10 MG/day or
158.10 MG/month). Permit G-17036 authorizes 9.28 cfs. Monthly volumes assume water is diverted at
the maximum rate, 24 hours per day for 31 days during the maximum month (likely July or August).
5.07 OAR 690-086-0170(7) MITIGATION REQUIREMENTS
Under OAR 690-086-0170(7), for expanded or initial diversion of water under an existing permit, the
water supplier is to describe mitigation actions it is taking to comply with legal requirements of the
Endangered Species Act, Clean Water Act, and other applicable state or federal environmental
regulations.
The Deschutes Basin Mitigation Program currently requires mitigation for all new ground water permits
in The Deschutes Basin. The mitigation program is based on the findings of the USGS Water Resources
Investigations Report 00-4162, “Groundwater Hydrology of the Upper Deschutes Basin, Oregon.” The
mitigation program was developed to maintain flows for Scenic Waterways and senior water rights,
restore flows in the Middle Deschutes River, and accommodate growth by allowing new groundwater
development. Thornburgh’s mitigation efforts will make a positive contribution towards maintaining
adequate flows in the Deschutes Basin for native aquatic species.
Anuta Exhibit 1 - Page 23 of 37
11/5/2020 Water Right Services, LLC Page 24 of 24
PO Box 1830 www.oregonwater.us johnshort@usa.com
Bend, OR 97709 John A. Short CCB # 197121 541-389-2837
The fully developed Mitigation Obligation for this right is 1356 AF annually, to be provided within the
General Zone of Impact. Mitigation is to be provided prior to each stage of development under the
permit. The use of groundwater allowed under the terms of the permit is not subject to regulation for
Scenic Waterway flows, so long as mitigation is maintained. An Incremental Mitigation Plan is in place
for the water use under Permit G-17036. The Incremental Mitigation Plan is summarized in the table
below.
Incremental Mitigation Plan
Incremental
Step
Volume of Use Mitigation Mitigation Source Mitigation
Type
2013-2019 6.0 AF 3.6 AF 3.6 Credits from DRC
Mitigation Bank
Temporary
2020-2024 401.61 AF additional 315.8 AF additional
2025-2029 416.78 AF additional 212.0 AF additional
2030-2034 815.57 AF additional 515.5 AF additional
2035 489.04 AF additional 309.1 AF additional
Totals 2129.0 AF 1356.0 AF
5.08 OAR 690-086-0170(8) ALTERNATIVE SOURCE ANALYSIS
Not applicable – Under OAR 690-086-0170(8), if a municipal water supplier finds it necessary to
acquire new water rights within the next 20 years in order to meet its projected demand, an analysis of
alternative sources of the additional water is required. The analysis must consider availability, reliability,
feasibility, and likely environmental impacts and a schedule for development of the new sources of
water. No additional water rights are anticipated to meet Thornburgh’s demand in the next 20 years.
035992\00001\11687708v1
Anuta Exhibit 1 - Page 24 of 37
ATTACHMENT
DESCHUTES COUNTY EMAIL
Anuta Exhibit 1 - Page 25 of 37
Anuta Exhibit 1 - Page 26 of 37
ATTACHMENT
WATER SYSTEM MAP
Anuta Exhibit 1 - Page 27 of 37
Exhibit B1Anuta Exhibit 1 - Page 28 of 37
ATTACHMENT
PERMIT MAP
Anuta Exhibit 1 - Page 29 of 37
Anuta Exhibit 1 - Page 30 of 37
Anuta Exhibit 1 - Page 31 of 37
ATTACHMENT
PERMIT
Anuta Exhibit 1 - Page 32 of 37
STATE OF OREGON
COUNTY OF DESCHUTES
I PERMIT TO APPROPRIATE THE PUBLIC WATERS
THIS PERMIT IS HEREBY ISSUED TO
THORNBURGH UTILITY GROUP, LLC
2447 NW CANYON DR
REDMOND, OR 97756
The specific limits and conditions of the use are listed below.
APPLICATION FILE NUMBER: G-16385
SOURCE OF WATER: SIX WELLS IN DESCHUTES RIVER BASIN
PURPOSE OR USE: QUASI-MUNICIPAL USES, INCLUDING IRRIGATION OF GOLF
COURSES AND COMMERCIAL AREAS, AND MAINTENANCE OF RESERVOIRS.
MAXIMUM RATE AND VOLUME: 9.28 CUBIC FEET PER SECOND, LIMITED TO A
MAXIMUM ANNUAL VOLUME OF 2,129.0 ACRE FEET (AF) . THE RATE AND VOLUME
ARE FURTHER LIMITED BY THE CORRESPONDING MITIGATION PROVIDED. THE
MAXIMUM VOLUME FOR IRRIGATION OF 320.0 ACRES FOR GOLF COURSES SHALL NOT
EXCEED 717.0 ACRE FEET.
PERIOD OF USE: YEAR ROUND
WELL 2: SE NW 'A, SECTION 29, T15S, R12E, W.M.; 1655 FEET SOUTH
AND 2750 FEET WEST FROM NE CORNER, SECTION 29
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WELL 3: SW % SW 3, SECTION 21, T15S, R12E, W.M.; 1100 FEET NORTH
AND 400 FEET EAST FROM SW CORNER, SECTION 21
DATE OF PRIORITY: FEBRUARY 9, 2005 ~I'l
WELL LOCATIONS:
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WELL 1: SE % NW %, SECTION 28, T15S, R12E, W.M.; 1800 FEET SOUTH
AND 2335 FEET EAST FROM NW CORNER, SECTION 28
WELL 4: NE 'A SE 5, SECTION 20, T15S, R12E, W.M.; 2885 FEET SOUTH
AND 750 FEET WEST FROM NE CORNER, SECTION 20
WELL 5: SW i/4 NE %, SECTION 20, T15S, R12E, W.M.; 2590 FEET SOUTH
AND 1860 FEET WEST FROM NE CORNER, SECTION 20
WELL 6: SE 'A NW 'A, SECTION 17, T15S, R12E, W.M.; 2375 FEET SOUTH
AND 3615 FEET WEST FROM NE CORNER, SECTION 17
Application G-16385 Water Resources Department PERMIT G-17036 Ill
Anuta Exhibit 1 - Page 33 of 37
Page 2
THE PLACE OF USE IS WITHIN THE BOUNDARIES OF THE THORNBURGH RESORT,
BEING WITHIN SECTIONS 17, 20, 21, 28, 29, AND 30; TOWNSHIP 15 SOUTH,
RANGE 12 EAST, W.M.
The amount of water used for irrigation under this right, together with
the amount secured under any other right existing for the same lands, is
limited to a diversion of ONE-EIGHTIETH of one cubic foot per second and
3.0 acre-feet for each acre irrigated during the irrigation season of
each year. The amount of water used for golf course irrigation under
this right is further limited to a diversion of 2.24 acre-feet for each
acre irrigated during the irrigation season of each year.
Measurement, recording and reporting conditions:
A. Before water use may begin under this permit, the permittee shall
install a totalizing flow meter at each point of appropriation. The
totalizing flow meters must be installed and maintained in good
working order consistent with those standards identified in OAR
690-507-645(1) through (3). The permittee shall keep a complete
record of the amount of water used each month and shall submit a
report which includes the recorded water use measurements to the
Department annually or more frequently as may be required by the
Director. Further, the Director may require the permittee to report
general water use information, including the place and nature of
use of water under the permit.
B. The permittee shall allow the watermaster access to the meters;
provided however, where the meters are located within a private
structure, the watermaster shall request access upon reasonable
notice.
Use of water under authority of this permit may be regulated if analysis
of data available after the permit is issued discloses that the
appropriation will measurably reduce the surface water flows necessary
to maintain the free-flowing character of a scenic waterway in
quantities necessary for recreation, fish and wildlife in effect as of
the priority date of the right or as those quantities may be
subsequently reduced. However, the use of ground water allowed under
the terms of this permit will not be subject to regulation for Scenic
Waterway flows so long as mitigation is maintained.
GROUND WATER MITIGATION CONDITIONS
Mitigation Obligation: 1356.0 acre-feet annually in the General Zone of
Impact (anywhere in the Deschutes Basin above the Madras gage, located
on the Deschutes River below Lake Billy Chinook.)
Application G-16385 Water Resources Department PERMIT G-17036
Anuta Exhibit 1 - Page 34 of 37
Page 3
Mitigation Source: Mitigation Credits from a chartered mitigation bank,
or suitable replacement mitigation that meets the requirements of OAR
690-505-0610, in accordance with the incremental development plan on
file with the Department, meeting the requirements of OAR Chapter 690,
Division 505 (Deschutes Ground Water Mitigation Rules) and OAR Chapter
690 Division 522, within the General Zone of Impact.
Mitigation water must be legally protected instream for instream use
within the General Zone of Impact and committed for life of the permit
and subsequent certificate(s). Regulation of the use and/or
cancellation of the permit, or subsequent certificate(s) will occur if
the required mitigation is not maintained.
If mitigation is from a secondary right for stored water from a storage
project not owned or operated by the permittee, the use of water under
this right is subject to the terms and conditions of a valid contract,
or a satisfactory replacement, with the owner/operator of the storage
project, a copy of which must be on file in the records of the Water
Resources Department prior to use of water.
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 and in accordance with the standards under
690-505-0610 (2) - (5).
The permittee shall seek and receive Department approval prior to
changing the incremental permit development plan and related incremental
mitigation.
)I
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11
The permittee shall report to the Department the progress of
implementing the incremental permit development plan and related
mitigation no later than April 1 of each year. This annual notification
is not necessary if the permittee has completed development and
submitted a Claim of Beneficial Use to the Department.
The permittee shall not increase the rate or amount of water diversion
before increasing the corresponding mitigation.
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Application G-16385 Water Resources Department PERMIT G-17036 1,
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1
(1
Within five years of permit issuance, the permittee shall submit a new
or updated Water Management and Conservation Plan pursuant to OAR
Chapter 690, Division 86.
1'
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Anuta Exhibit 1 - Page 35 of 37
Page 4
Failure to comply with these mitigation conditions shall result in the
Department regulating the ground water permit, or subsequent
certificate(s), proposing to deny any permit extension application for
the ground water permit, and proposing to cancel the ground water
permit, or subsequent certificate(s).
STANDARD CONDITIONS
Failure to comply with any of the provisions of this permit may result
in action including, but not limited to, restrictions on the use, civil
penalties, or cancellation of the permit.
If the number, location, source, or construction of any well deviates
from that proposed in the permit application or required by permit
conditions, this permit may be subject to cancellation, unless the
Department authorizes the change in writing.
If substantial interference with a senior water right occurs due to
withdrawal of water from any well listed on this permit, then use of
water from the well(s) shall be discontinued or reduced and/or the
schedule of withdrawal shall be regulated until or unless the Department
approves or implements an alternative administrative action to mitigate
the interference. The Department encourages junior and senior
appropriators to jointly develop plans to mitigate interferences.
The wells shall be constructed in accordance with the General Standards
for the Construction and Maintenance of Water Wells in Oregon. The works
shall be equipped with a usable access port, and may also include an air
line and pressure gauge adequate to determine water level elevation in
the well at all times.
Where two or more water users agree among themselves as to the manner of
rotation in the use of water and such agreement is placed in writing and
filed by such. water users with the watermaster, and such rotation system
does not infringe upon such prior rights of any water user not a party
to such rotation plan, the watermaster shall distribute the water
according to such agreement.
Prior to receiving a certificate of water right, the permit holder shall
submit to the Water Resources Department the results of a pump test
meeting the Department's standards for each point of appropriation
(well), unless an exemption has been obtained in writing under OAR 690-
217. The Director may require water-level or pump-test data every ten
years thereafter.
This permit is for the beneficial use of water without waste. The water
user is advised that new regulations may require the use of best
practical technologies or conservation practices to achieve this end.
Application G-16385 Water Resources Department PERMIT G-17036
Anuta Exhibit 1 - Page 36 of 37
Page 5
By law, the land use associated with this water use must be in
compliance with statewide land-use goals and any local acknowledged
land-use plan.
The use of water shall be limited when it interferes with any prior
surface or ground water rights.
Completion of construction and application of the water shall be made
within five years of the date of permit issuance. If beneficial use of
permitted water has not been made before this date, the permittee may
submit an application for extension of time, which may be approved based
upon the merit of the application.
Within one year after making beneficial use of water, the permittee
shall submit a claim of beneficial use, which includes a map and report,
prepared by a Certified Water Rights Examiner.
This permit is issued to correctly describe the maximum annual volume.
Permit G-17009, dated February 7, 2013, is superseded by this instrument
and is of no further force or effect.
Issued April 3 , 2013
-
for Phillip C. Ward, Director
Water Resources Department
Application G-16385 Water Resources Department
Basin 5 Volume 1 DESCHUTES R MISC
PERMIT G-17036
I1 li!
Anuta Exhibit 1 - Page 37 of 37
Anuta Exhibit 2 - Page 1 of 5
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Anuta Exhibit 2 - Page 5 of 5
Oregon Water Resources Department
Water Right Services Division
In the Matter of the Application for an )
Extension of Time for Permit G-17036, Water )
Right Application G-163 85, in the name of the )
Pinnacle Utilities, LLC )
ORDER ON RECONSIDERATION
WITHDRAWING FINAL ORDER
APPROVING EXTENSION OF TIME
FOR PERMIT G-17036
The Oregon Water Resources Department (Department) on reconsideration of it~ Final Order
dated October 26, 2018, withdraws its Final Order and finds that Annunziata Gould raised significant
disputes related to the proposed agency action in a protest filed on July 20, 2018. Accordingly, a
contested case hearing to resolve the protest must be held.
FINDINGS OF FACT
1. On February 7, 2013, Permit G-17009 was issued to Thornburgh Utility Group, LLC for groundwater
use in the Deschutes River Basin. The permit specified completion of construction and complete
application of water was to be made within five years of permit issuance, being February 7, 2018. On
April 3, 2013, a superseding permit G-17036 was issued. The superseding permit specified
completion of construction and.complete application of the water was to be made within five years of
permit issuance, being April 3, 2018.
2. In 2014, the permit was assigned to Pinnacle Utilities, LLC which subsequently submitted an
"Application for Extension of Time" on April 2, 2018.
3. On May 8, 2018, the Department proposed to deny the proposed extension in a Proposed Final Order
(PFO) issued on that date.
4. On May 14, 2018, Pinnacle Utilities, LLC submitted additional information to the Department
regarding use of a well (DESC 756 or "Well 2"), which information resulted in the Department
finding that construction of the well began prior to April 3, 2018 as required by ORS 537.630(2).
Accordingly, the Department withdrew its Proposed Final Order (PFO) dated May 8, 2018 and issued
a new PFO dated June 5, 2018.
5. The PFO dated June 5, 2018 proposed to allow the extension of time and to extend the time to
complete construction to October 1, 2035. The June 5, 2018 PFO also provided notice that any person
could protest the PFO but that a protest must be received by "June 22, 2018 [sic] being 45 days from
the date of publication of the proposed final order in the Department's weekly notice."
6. Notwithstanding the typographical error in the June 5, 2018 PFO, Annunziata Gould timely filed a
protest on July 20, 2018 (45 days after public notice of the June 5, 2018 PFO). In the protest Ms.
Gould asserted errors in the June 5, 2018 PFO including raising the issue of whether the Department
correctly found that construction had begun within the time period specified in the permit. Ms. Gould
requested a contested case hearing.
Application G-163 85, Permit 17036 Order Withdrawing Final Order 1
Anuta Exhibit 3 - Page 1 of 2
7. On October 26, 2018, the Department issued a Final Order approving the Application for Extension of
Time for Permit G-1703 6, adding conditions governing development limitations, and affirming its
June 5, 2018 PFO. The Final Order noted the protest filed by Ms. Gould, but did not address the
assertions in the protest, nor grant a contested case hearing.
8. On December 7, 2018, Ms. Gould petitioned for judicial review and declaratory judgment of the
October 26, 2018 Final Order in the Marion County circuit court (Case No. 18CV55723) and in the
Court of Appeals (Case No. Al 69580).
CONCLUSIONS OF LAW
1. The Department may withdraw the October 26, 2018 Final Order approving the Application for
Extension of Time for Permit G-17036 for reconsideration. ORS 183.482(6).
2. The protest filed on July 20, 2018 raises significant disputes related to the proposed agency action.
OAR 690-315-0060(3)(b )(A).
ORDER
The Final Order Approving Extension of Time for Permit G-17036 dated October 26, 2018 is withdrawn
and the Protest filed July 20, 2018 shall be referred to the Office of Administrative Hearings for a
contested case hearing.
Dated at Salem, Oregon on January 31, 2019.
I
' I; . I / (! . //1 j ~ I ~ :.! I / I, ['dY+ , ,, _, '----
Dwighi f~ch---'--·
Water(~ht Seiv·ices Division Administrator, for
Thomas M. Byler, Director
Oregon Water Resources Department
Anuta Exhibit 3 - Page 2 of 2
STATE OF OREGON
COUNTY OF DESCHUTES
I PERMIT TO APPROPRIATE THE PUBLIC WATERS
THIS PERMIT IS HEREBY ISSUED TO
THORNBURGH UTILITY GROUP, LLC
2447 NW CANYON DR
REDMOND, OR 97756
The specific limits and conditions of the use are listed below.
APPLICATION FILE NUMBER: G-16385
SOURCE OF WATER: SIX WELLS IN DESCHUTES RIVER BASIN
PURPOSE OR USE: QUASI-MUNICIPAL USES, INCLUDING IRRIGATION OF GOLF
COURSES AND COMMERCIAL AREAS, AND MAINTENANCE OF RESERVOIRS.
MAXIMUM RATE AND VOLUME: 9.28 CUBIC FEET PER SECOND, LIMITED TO A
MAXIMUM ANNUAL VOLUME OF 2,129.0 ACRE FEET (AF) . THE RATE AND VOLUME
ARE FURTHER LIMITED BY THE CORRESPONDING MITIGATION PROVIDED. THE
MAXIMUM VOLUME FOR IRRIGATION OF 320.0 ACRES FOR GOLF COURSES SHALL NOT
EXCEED 717.0 ACRE FEET.
PERIOD OF USE: YEAR ROUND
WELL 2: SE NW 'A, SECTION 29, T15S, R12E, W.M.; 1655 FEET SOUTH
AND 2750 FEET WEST FROM NE CORNER, SECTION 29
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WELL 3: SW % SW 3, SECTION 21, T15S, R12E, W.M.; 1100 FEET NORTH
AND 400 FEET EAST FROM SW CORNER, SECTION 21
DATE OF PRIORITY: FEBRUARY 9, 2005 ~I'l
WELL LOCATIONS:
II I
WELL 1: SE % NW %, SECTION 28, T15S, R12E, W.M.; 1800 FEET SOUTH
AND 2335 FEET EAST FROM NW CORNER, SECTION 28
WELL 4: NE 'A SE 5, SECTION 20, T15S, R12E, W.M.; 2885 FEET SOUTH
AND 750 FEET WEST FROM NE CORNER, SECTION 20
WELL 5: SW i/4 NE %, SECTION 20, T15S, R12E, W.M.; 2590 FEET SOUTH
AND 1860 FEET WEST FROM NE CORNER, SECTION 20
WELL 6: SE 'A NW 'A, SECTION 17, T15S, R12E, W.M.; 2375 FEET SOUTH
AND 3615 FEET WEST FROM NE CORNER, SECTION 17
Application G-16385 Water Resources Department PERMIT G-17036 Ill
Anuta Exhibit 4 - Page 1 of 6
Page 2
THE PLACE OF USE IS WITHIN THE BOUNDARIES OF THE THORNBURGH RESORT,
BEING WITHIN SECTIONS 17, 20, 21, 28, 29, AND 30; TOWNSHIP 15 SOUTH,
RANGE 12 EAST, W.M.
The amount of water used for irrigation under this right, together with
the amount secured under any other right existing for the same lands, is
limited to a diversion of ONE-EIGHTIETH of one cubic foot per second and
3.0 acre-feet for each acre irrigated during the irrigation season of
each year. The amount of water used for golf course irrigation under
this right is further limited to a diversion of 2.24 acre-feet for each
acre irrigated during the irrigation season of each year.
Measurement, recording and reporting conditions:
A. Before water use may begin under this permit, the permittee shall
install a totalizing flow meter at each point of appropriation. The
totalizing flow meters must be installed and maintained in good
working order consistent with those standards identified in OAR
690-507-645(1) through (3). The permittee shall keep a complete
record of the amount of water used each month and shall submit a
report which includes the recorded water use measurements to the
Department annually or more frequently as may be required by the
Director. Further, the Director may require the permittee to report
general water use information, including the place and nature of
use of water under the permit.
B. The permittee shall allow the watermaster access to the meters;
provided however, where the meters are located within a private
structure, the watermaster shall request access upon reasonable
notice.
Use of water under authority of this permit may be regulated if analysis
of data available after the permit is issued discloses that the
appropriation will measurably reduce the surface water flows necessary
to maintain the free-flowing character of a scenic waterway in
quantities necessary for recreation, fish and wildlife in effect as of
the priority date of the right or as those quantities may be
subsequently reduced. However, the use of ground water allowed under
the terms of this permit will not be subject to regulation for Scenic
Waterway flows so long as mitigation is maintained.
GROUND WATER MITIGATION CONDITIONS
Mitigation Obligation: 1356.0 acre-feet annually in the General Zone of
Impact (anywhere in the Deschutes Basin above the Madras gage, located
on the Deschutes River below Lake Billy Chinook.)
Application G-16385 Water Resources Department PERMIT G-17036
Anuta Exhibit 4 - Page 2 of 6
Page 3
Mitigation Source: Mitigation Credits from a chartered mitigation bank,
or suitable replacement mitigation that meets the requirements of OAR
690-505-0610, in accordance with the incremental development plan on
file with the Department, meeting the requirements of OAR Chapter 690,
Division 505 (Deschutes Ground Water Mitigation Rules) and OAR Chapter
690 Division 522, within the General Zone of Impact.
Mitigation water must be legally protected instream for instream use
within the General Zone of Impact and committed for life of the permit
and subsequent certificate(s). Regulation of the use and/or
cancellation of the permit, or subsequent certificate(s) will occur if
the required mitigation is not maintained.
If mitigation is from a secondary right for stored water from a storage
project not owned or operated by the permittee, the use of water under
this right is subject to the terms and conditions of a valid contract,
or a satisfactory replacement, with the owner/operator of the storage
project, a copy of which must be on file in the records of the Water
Resources Department prior to use of water.
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 and in accordance with the standards under
690-505-0610 (2) - (5).
The permittee shall seek and receive Department approval prior to
changing the incremental permit development plan and related incremental
mitigation.
)I
11
11
The permittee shall report to the Department the progress of
implementing the incremental permit development plan and related
mitigation no later than April 1 of each year. This annual notification
is not necessary if the permittee has completed development and
submitted a Claim of Beneficial Use to the Department.
The permittee shall not increase the rate or amount of water diversion
before increasing the corresponding mitigation.
l1
I1
Application G-16385 Water Resources Department PERMIT G-17036 1,
i I
I
I
I
i
1 I
I
I I I
I I
1
(1
Within five years of permit issuance, the permittee shall submit a new
or updated Water Management and Conservation Plan pursuant to OAR
Chapter 690, Division 86.
1'
I'
I I
Anuta Exhibit 4 - Page 3 of 6
Page 4
Failure to comply with these mitigation conditions shall result in the
Department regulating the ground water permit, or subsequent
certificate(s), proposing to deny any permit extension application for
the ground water permit, and proposing to cancel the ground water
permit, or subsequent certificate(s).
STANDARD CONDITIONS
Failure to comply with any of the provisions of this permit may result
in action including, but not limited to, restrictions on the use, civil
penalties, or cancellation of the permit.
If the number, location, source, or construction of any well deviates
from that proposed in the permit application or required by permit
conditions, this permit may be subject to cancellation, unless the
Department authorizes the change in writing.
If substantial interference with a senior water right occurs due to
withdrawal of water from any well listed on this permit, then use of
water from the well(s) shall be discontinued or reduced and/or the
schedule of withdrawal shall be regulated until or unless the Department
approves or implements an alternative administrative action to mitigate
the interference. The Department encourages junior and senior
appropriators to jointly develop plans to mitigate interferences.
The wells shall be constructed in accordance with the General Standards
for the Construction and Maintenance of Water Wells in Oregon. The works
shall be equipped with a usable access port, and may also include an air
line and pressure gauge adequate to determine water level elevation in
the well at all times.
Where two or more water users agree among themselves as to the manner of
rotation in the use of water and such agreement is placed in writing and
filed by such. water users with the watermaster, and such rotation system
does not infringe upon such prior rights of any water user not a party
to such rotation plan, the watermaster shall distribute the water
according to such agreement.
Prior to receiving a certificate of water right, the permit holder shall
submit to the Water Resources Department the results of a pump test
meeting the Department's standards for each point of appropriation
(well), unless an exemption has been obtained in writing under OAR 690-
217. The Director may require water-level or pump-test data every ten
years thereafter.
This permit is for the beneficial use of water without waste. The water
user is advised that new regulations may require the use of best
practical technologies or conservation practices to achieve this end.
Application G-16385 Water Resources Department PERMIT G-17036
Anuta Exhibit 4 - Page 4 of 6
Page 5
By law, the land use associated with this water use must be in
compliance with statewide land-use goals and any local acknowledged
land-use plan.
The use of water shall be limited when it interferes with any prior
surface or ground water rights.
Completion of construction and application of the water shall be made
within five years of the date of permit issuance. If beneficial use of
permitted water has not been made before this date, the permittee may
submit an application for extension of time, which may be approved based
upon the merit of the application.
Within one year after making beneficial use of water, the permittee
shall submit a claim of beneficial use, which includes a map and report,
prepared by a Certified Water Rights Examiner.
This permit is issued to correctly describe the maximum annual volume.
Permit G-17009, dated February 7, 2013, is superseded by this instrument
and is of no further force or effect.
Issued April 3 , 2013
-
for Phillip C. Ward, Director
Water Resources Department
Application G-16385 Water Resources Department
Basin 5 Volume 1 DESCHUTES R MISC
PERMIT G-17036
I1 li!
Anuta Exhibit 4 - Page 5 of 6
Anuta Exhibit 4 - Page 6 of 6
1
Karl Anuta
From:COPE Kerri H * WRD <Kerri.H.Cope@oregon.gov>
Sent:Tuesday, May 12, 2020 10:12 AM
To:DOOLEY Deirdre A * WRD
Subject:FW: Pinnacle Utilities/Thornburgh Utility Group Mitigation Credits
KK ee rr rr ii HH .. CC oo pp ee | Water Management and Conservation Analyst/Reuse Coordinator
___________________________________________________________________________________________________________________________________________________________________________________________ WWaatteerr RReessoouurrcceess DDeeppaarrttmmeenntt | 725 Summer St. NE, Suite A | Salem, Oregon 97301
Ph: 503 986-0919 | Fax: 503 986-0901
Email: Kerri.H.Cope@oregon.gov | Web:http://www.oregon.gov
From: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Sent: Thursday, April 16, 2020 11:22 AM
To: COPE Kerri H * WRD <Kerri.H.Cope@oregon.gov>
Subject: RE: Pinnacle Utilities/Thornburgh Utility Group Mitigation Credits
Hi Kerri,
Yes Pinnacle Utilites/Thornburgh have purchased credits for Permit G‐17036, every year they have bought temporary
credits from DRCMB. 3.6 mitigation credits every year, and they report to the Department every year on the water
usage, which is 0.
Let me know if you need anything else.
Sarah
Sarah A. Henderson
Flow Restoration Program Coordinator
Transfer and Conservation Section
725 Summer St. NE, Suite A |Salem, OR 97301| Direct: 503‐986‐0884
Email: sarah.a.henderson@oregon.gov
Integrity | Service | Technical Excellence | Teamwork | Forward‐Looking
From: COPE Kerri H * WRD
Sent: Thursday, April 16, 2020 10:40 AM
To: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Subject: Pinnacle Utilities/Thornburgh Utility Group Mitigation Credits
Anuta Exhibit 5 - Page 1 of 2
2
Hi Sarah,
I’m reviewing Pinnacle Utilities/Thornburgh Utilities WMCP and they indicate they’ve purchased
credits for Permit G-17036, is that something you can verify for me? It’s a plan written by John Short’s
employee Bryce so I know he has a mitigation bank as well. I received multiple public comments on
the plan so just want to verify.
Thanks,
KK ee rr rr ii HH .. CC oo pp ee | Water Management and Conservation Analyst/Reuse Coordinator
___________________________________________________________________________________________________________________________________________________________________________________________ WWaatteerr RReessoouurrcceess DDeeppaarrttmmeenntt | 725 Summer St. NE, Suite A | Salem, Oregon 97301
Ph: 503 986-0919 | Fax: 503 986-0901
Email: Kerri.H.Cope@oregon.gov | Web:http://www.oregon.gov
Anuta Exhibit 5 - Page 2 of 2
KARL G. ANUTA
LAW OFFICE OF KARL G. ANUTA, P.C.
735 SW FIRST AVENUE, 2ND FLOOR
TRIAL ATTORNEY PORTLAND, OREGON 97204 E-MAIL
LICENSED IN (503) 827-0320 KGA@INTEGRA.NET
OREGON & WASHINGTON FACSIMILE (503) 386-2168
July 6, 2021
VIA ELECTRONIC MAIL (mary.f.bjork@oregon.gov)
AND FAX (1-503-986-0901)
Oregon Dept of Water Resources
Attn: Mary F. Bjork
725 Summer St., NE, Suite A
Salem, OR 97301
Re: Application LL-1879
Limited License Request
Kameron DeLashmutt/Pinnacle Utilities
Dear Ms. Bjork:
This office represents Annunziata Gould, a local public interest advocate, on
water issues. These comments are submitted on behalf of Ms. Gould.
Since the Department has not yet completed its evaluation of this application, we
hope that these comments will be helpful to your analysis and decision making.
BACKGROUND
As the Department well knows, the Deschutes Basin groundwater levels are in
decline. Scenic waterway flows are being negatively affected. The ground and suface
water resources in the area are being mined and used at a rate that is not sustainable
or stable. In fact, we understand that the 200 CFS cap on new appropriation may soon
be reached.
The Department is charged with managing and protecting groundwater and
surface water. The Department is the trustee of these resources, which are owned by
the public. The Department is prohibited from allowing over appropriation of ground or
surface water. The Department has an obligation to protect senior water right holders in
the basin, including the Instream rights on State Scenic Waterways, from harm by new
or junior users. The Department also has a public trust obligation to the owners of the
waters in question, the citizens of Oregon. See, ORS 537.110 (“All water within the
state from all sources of water supply belongs to the public.”)
Page 1 of 8
Anuta Exhibit 6 - Page 1 of 15
SPECIFIC CONCERNS ABOUT THIS PROPOSED LIMITED LICENSE
These comments are directed at the Limited License requested by Mr.
DeLashmutt and his Pinnacle Utilities LLC (aka Thornburgh Resort or TBR). The
Department should deny the requested Limited License due to one or more the
following reasons:
1. The proposed use is not for a “short term” use, as required by ORS 537-
143(1). Instead, as the applicant admits in Section 3 of the first page of the
Application, the intended use includes “Quasi-municipal uses.” The
application Description of Proposed Project similarly admits that the water
is intended in part for “initial quasi-municipal uses at the site of the
Thornburgh Resort.” Similarly, the Limited License Map submitted with the
application show “POU QM” in shaded areas throughout the propose
Resort.
2. It is unlawful for the Department to grant a Limited License for what is
really a long term or permanent proposed use. Such licenses are only
available for “short term or fixed duration” uses. Such licenses cannot
lawfully be issued as a proverbial “bridge” to a long term use. Yet that is
exactly what this application clearly proposes. The Description of
Proposed Project statement admits that this proposed License is intended
as a bridge “pending the resolution of” two other water use applications
and a Permit Extension dispute.
3. There is no need for the 4 new wells proposed in this Limited License
application, except for the Quasi-Municipal uses that are actually long
term uses. The application Description of Proposed Project similarly
admits that Well #8 in the application “will be used to immediately supply
construction water.” In addition, page 3 of the LUCS form in the
application notes that the use is for Quasi-Municipal. Nothing is said about
the need for road construction water. Clearly then, the rest of the
proposed wells are not needed for construction, but are instead intended
for the long term Resort uses.
4. Use of Well #8, which is an exempt domestic well, for commercial uses
such as the road construction or Quasi-Municipal uses proposed in this
Limited License is unlawful. Well #8 would need to go through a normal
permitting process to obtain authorization for any or all of the uses
proposed in the Limited License.
5. There is no proof that the proposed addition of 4 new wells, and what may
be a proposed expansion of use of an additional existing well, will not
cause injury to one or more existing instream water rights or minimum
perennial streamflow on Wychus Creek and/or the Deschutes River,
and/or in other nearby surface water bodies. Consequently, under the
obligations imposed by ORS 537.143(2), ORS 536.025, and consistent
Page 2 of 8
Anuta Exhibit 6 - Page 2 of 15
with OAR 690-340-0030(2)(requiring that the proposed use “will not impair
of be detrimental to the public interest”) the requested Limited License
should be denied.
6. The proposed use is also not in the public interest for a host of other
reasons. This is a proposed use of groundwater, in a Basin already under
regulation to protect existing users from further over appropriation of
groundwater. To demonstrate that a groundwater use is in the public
interest it must be demonstrated that the proposed use “would preserve
the public welfare, safety and health.” ORS 537.625(3). Specific
considerations that would need to be addressed include:
• Whether water is “available” for the proposed use, per ORS
537.621(2);
• Whether the proposed use would “injure” existing water
rights, per ORS 537.621(2);
• Whether the proposed use is within the “capacity” of the
resource and would “maintain” stable groundwater levels.
ORS 537.525(6), (7); and
• Whether the proposed use would otherwise adversely
impact “fish and wildlife” or “water quality.” OAR 690-310-
0140(3)(b).
Here groundwater in this Basin is not available, absent full mitigation that
complies with the rules. The proposed use has not been shown to protect
existing instream rights, much less local groundwater wells. The resource
at issue is already in steady decline, and allowing extensive water use for
things like golf courses in the high desert will only exacerbate that decline
and reduce - rather than maintain - stable groundwater levels. And it is
already proven that absent adequate mitigation (of which none is
proposed in this Limited License) this Resort use will harm or adversely
impact fish and wild life as well as water quality. See e.g., Gould v.
Deschutes County, __ Or LUBA ___, ___(2021)(LUBA #2020-095 June
11, 2021 Slip Op. p.12) (noting that this Resort’s proposed “consumptive
use of groundwater is anticipated to impact an offsite fish-bearing
stream, Whychus Creek, by reducing instream water volumes and
increasing water temperatures.”)(empasis added)(citing Gould v.
Deschutes County, 79 Or LUBA 561 (2019, aff’d 310 Or App 868 (2021)).
7. To the extent that the Department/Director already made a preliminary
public interest finding, before publishing Notice of the proposed Limited
License, for all the reasons outlined in this comment that finding was in
error and must be revisited.
8. There is no proof that the proposed addition of 4 new wells, and the
expansion of use of an additional existing well, will not cause measurable
reductions in the surface water flows necessary to maintain the free
flowing character of one or more scenic waterways, in quantities
necessary for recreation, fish and wildlife. Consequently, under the
Page 3 of 8
Anuta Exhibit 6 - Page 3 of 15
obligations imposed by ORS 536.025, and consistent with the Oregon
State Scenic Waterways Act ORS 390.805 et seq, the requested Limited
License should be denied.
9. The 4 new wells that are proposed will all need mitigation, to comply with
the Deschutes Groundwater Mitigation Rules found in OAR Chapter 690,
Division 505. However, there is no indication in the application if, or if so
how, that mitigation will be provided - much less a demonstration that any
proposed mitigation will meet the requirements of those Rules.
10. The extent, if any, of the current use of the existing Well #8 on the TBR
property at issue is not documented in the application. It is quite possible
that some, or all, use of that well has not occurred for 5 or more
consecutive years. If so, the use of that well may potentially subject to
forfeiture and not available for further use such as that proposed in the
Limited License application. If it proceeds with processing of this Limited
License the Department should insist that the applicant produce
persuasive evidence of the extent/amount of use that has occurred in Well
#8 over the last 5 years.
11. Well #8 is, in fact, one of the same wells that the same applicant
represented to Deschutes County in the land use proceedings over TBR,
would be abandoned. See, Exhibit #1, Map from 2008, prepared by
TBR’s consultant, listing Well #8 as having OWRD Well Log # Desc. 756.
Compare, Exhibit #2 - Well Log included with LL-1879, which is for Desc.
756. The County relied on those representations, in issuing land use
approvals for some or all of TBR. See, Exhibit #3 - Excerpt of Applicant
Consultant Newton F&W Mitigation Plan, from County with their
highlighting. Consequently, use of Well #8 as part of a Limited License
would be inappropriate, likely unlawful, and not in the public interest.
12. Since the extent, if any, of the current use of the existing Well #8 on the
TBR lands is not documented in the application, any use of that well
above and beyond the existing use levels (if any) must be treated as an
expansion of use - that should be subject to additional mitigation
requirements under the Basin Plan Groundwater Protection Rules.
13. The exact same five wells that are listed in the Limited License application
are also listed as proposed points of appropriate in a pending Temporary
Transfer applicantion - T-13703. That application proposes the use of
additional water under a Quasi-Municipal Certificate. This is in a Basin
where a Drought Declaration already exists, where groundwater is already
becoming scare, and where the local Watermaster has already indicated
in the Water Availability Statement for this Limited License that the aquifer
that these wells will tap is already showing “steady long term decline.” In
light of all that, this Limited License is not in the public interest, and it
should be denied.
Page 4 of 8
Anuta Exhibit 6 - Page 4 of 15
14. One of the new wells listed in the Limited License application is also
already listed for use in an expired Permit, also held by Pinnacle.
Specifically, Well #5 in the Limited License application is the same as Well
#4 in Permit G-17036. A copy of the G-17036 map is attached as Exhibit
#4. The same applicant proposes to withdraw 9.28 CFS of additional
water for Quasi-Municipal use under that Permit if it is Extended. The
impacts of withdrawing the requested Limited License 4.2 CFS, the
proposed transferred water, and the water that was originally authorized
under the expired Permit G-17036 could be significant. Those impacts
have not been addressed or disclosed in the application. Those impacts
will potentially create more harm to scenic waterway flows, and further
degrade an already steadily declining aquifer. Those impacts are contrary
to the public interest.
15. Admittedly, Permit G-17036 is expired. It quite likely that Permit will
ultimately be cancelled. However, the same applicant currently has yet
another application pending, for all of the same 8 wells referenced in the
also pending transfer application. Specifically, Application G-19139 seeks
the same 9.28 CFS from the same 8 wells that are referenced in the
temporary transfer application, five of which are also identified in this
Limited License application (specifically wells #1, 2, 4, 5 & 8). A copy of
the G-19139 Map is attached as Exhibit #5. In short, the concerns about
excessive use of water in a way that could harm the aquifer, near by well,
Whychus Creek and/or the Deschutes River - and that could have other
as yet unevaluated impacts on ground and surface water - remain valid
even after G-17036 is cancelled.
16. There is no evidence that the proposed 4 new wells (or the existing well)
will be operated consistent with the limitations on protection of State
Scenic Waterways. In fact, over time the proposed limited use will most
likely result in measurable reductions of the surface water flows necessary
to maintain the free flowing character of a scenic waterway in quantities
necessary for recreation, fish and wildlife. That fact is already proven and
accepted by the courts. The courts have already specifically recognized
that this Resort’s proposed “consumptive use of groundwater is
anticipated to impact an offsite fish-bearing stream, Whychus Creek, by
reducing instream water volumes and increasing water temperatures.”
Gould v. Deschutes County, __ Or LUBA ___, ___(2021)(LUBA #2020-
095 June 11, 2021 Slip Op. p.12)(citing Gould v. Deschutes County, 79 Or
LUBA 561 (2019, aff’d 310 Or App 868 (2021)).
17. Moreover, the consumptive use referenced by LUBA was only the 9.28
CFS. It did not include the 9.28 CFS from either Permit G-17036 or Permit
G-19139, nor that 9.28 CFS combined with the water sought in the
pending temporary transfer, and then further combined with the 4.2 CFS
sought in this Limited License. In short, the already known reductions in
Page 5 of 8
Anuta Exhibit 6 - Page 5 of 15
instream water volumes and increases in water temperature would almost
certainly be exacerbated by approval of this Limited License.1
18. There is no proof that the proposed 4 new wells (or the existing well) will
be operated consistent with the limitations on land uses and/or in
compliance with land use laws. To the contrary, some of the proposed
water use that is listed in the Limited License application would specifically
be on portions of a Tax Lot (#8000), which are not authorized or
approved by Deschutes County to be used by TBR. See attached maps
Exhibit #6 & #7, showing areas of Tax Lot 8000 that are not approved for
Resort use. Yet on the Map provided by the applicant for the Limited
License “POU QM” it specifically shows use of the Limited License water
on all of Tax Lot 8000, including those parts that are not authorized for the
Resort Use according to the Final Master Plan and Water System Plan
adopted and approved by the County.
19. The applications currently pending, T-13703, LL1879, G-19139, in
conjunction with Permit G-17036, constitute “layered” water rights and
approval of one or more of them would be contrary to OAR 690-380-2240.
20. The applications currently pending, T-13703, LL1879, G-19139, in
conjunction with Permit G-17036, constitute speculation in water by this
applicant and approval of one or more of them would be contrary to the
goals & policies in the Basin Plan, as well as the Deschutes Basin
Groundwater Protection Rules.
21. To the extent that the Quasi-Municipal use proposed includes irrigation,
the Department is precluded from issuing a Limited License for such a use
because the “sole purpose” of that Quasi-Municipal irrigation use is not
limited to the “water necessary to establish a crop for which no further
irrigation will be required after the crop is established.” See, ORS
537.143(6). The proposed use in this case includes irrigation of golf
courses, which need almost constant irrigation in this climate, rather than
being a crop where there is “no further irrigation” needed.
22. The Water Availability Statement from the local Watermaster contains an
error. Section #1 asks the question of whether the “basin that is the
source” for the application has ever been regulated for prior rights. The
1 The applicant will most likely claim it has mitigation water available for the 9.2 CFS. That is a
hotly disputed fact. The Big Fall Ranch water the applicant represented to ODFW and the County would
be used for mitigation, appears to have been moved to another location already. Moreover, there is no
demonstration that any or all of the wells involved in the Limited License application have any of the
necessary mitigation water approved under the Basin Plan Rules. Any new representations about there
being adequate Mitigation should be treated as highly questionable and likely unreliable, given the same
applicant’s prior representations that one of the wells now proposed for Limited License, Temporary
Transfer, and/or Permit G-19139 use would be abandoned. One is reminded of the old cliche: Fool me
once, shame on you. Fool me twice.....
Page 6 of 8
Anuta Exhibit 6 - Page 6 of 15
Watermaster mistakenly checked “No.” In fact the Deschutes Basin
Groundwater Protection program found in the Basin Plan at OAR Chapter
690, Division 505 contains and constitutes regulation of groundwater in
the Basin to protect prior rights.
23. There is no signed LUCS form in the application materials available in
WRIS. No further processing of the Limited License application should
occur until the Department has a signed LUCS on file, and the Department
clarifies with Deschutes County what lands are covered by the LUCS and
what lands are not.
24. Given the Groundwater limitations in the Basin, given the already harmed
Scenic Waterways, and given the fact that multiple uses under multiple
permits/certificates/licenses are currently proposed for this same location,
any use that was (inappropriately) approved under any of the
permits/certificates/licenses at issue must be conditioned to require
detailed and extensive measurement and reporting. Without that sort of
conditioning the local Watermaster will unable to tell whether each use is
taking only what each permits/certificates/licenses authorizes. Without that
sort of conditioning the local Watermaster will unable to tell whether the
holder is exceeding their lawful use or harming the aquifer in some other
manner. That measurement and reporting should - at a minimum -
include: (i) the installation of totalizing flow meters on each well;2 (ii) daily
tabulations of exactly how much water was used, under each
permit/certificate/license and where it was used; (iii) weekly or monthly
recordation of static water levels in each well; and (iv) monthly reporting of
all measurements to both the local Watermaster and the Department’s
Groundwater section in Salem.
SUMMARY
The requested Limited License should be denied. The applicant has not
demonstrated that the proposed use is completely lawful, and that it will not use water in
a way that is inconsistent with the law. In addition, the proposed use of constructing yet
another golf course in the high desert - at a location where it is already clear that local
streams and one or more State Scenic Waterways will be potentially harmed - is not in
the public interest.
The applicant is attempting to “stack” or “layer” or speculate with multiple
different use authorizations onto the same land from some or all of the same wells.
There has been no analysis of the impacts on the resource (both ground and surface
waters) of this sort of proposed extensive pumping under multiple rights. Nor has the
applicant shown that the proposed use complies with the Groundwater Protection Rules
that apply in this Basin.
2 The local Watermaster, in their Water Availability Statement for LL-1879, is already
recommending requiring flow meters and record keeping for all wells at issue in that application.
Page 7 of 8
Anuta Exhibit 6 - Page 7 of 15
For all the reasons articulated in this comment the Limited License application
should be denied.
If you have any questions, please do not hesitate to contact me.
Sincerely,
/s/ Karl G. Anuta
Karl G. Anuta
c: client
Page 8 of 8
Anuta Exhibit 6 - Page 8 of 15
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Anuta Exhibit 6 - Page 11 of 15
Anuta Exhibit 6 - Page 12 of 15
Anuta Exhibit 6 - Page 13 of 15
Anuta Exhibit 6 - Page 14 of 15
Anuta Exhibit 6 - Page 15 of 15
2. On June 22, 2021, the Department provided public notice of the application, as required by OAR
690-340-0030(2).
3. This limited license request is limited to an area within a single drainage basin, as required by OAR
690-340-0030(3).
4. As part of its review to determine groundwater availability, the Department has determined that
groundwater for the proposed use will not likely be available within the capacity of the groundwater
resource; therefore, water is not available for the proposed use.
5. The Department has determined that groundwater will not likely cause injury to prior water rights, as
long as the use of water under this limited license will not occur in conjunction with existing permit,
G-17036, as stated in the application.
6. In the Deschutes Basin, a joint study of groundwater resources by the Department and U.S.
Geological Survey established a hydraulic connection between groundwater and surface water
within the Deschutes Ground Water Study Area (Ground Water Hydrology of the Upper Deschutes
Basin, Oregon, Water Resources Investigations Report 00-4162, Portland, Oregon, 2001).
7. Based on the conclusions of the study, the Department has determined that groundwater
appropriations have the potential for substantial interference with surface water rights as described in
OAR 690, Division 9, and will measurably reduce scenic waterway flows as defined in ORS 390.835
unless mitigation is provided.
8. Mitigation credits have not been provided as part ofthis application.
9. The Department received public comment related to the possible issuance of the limited license from
Tana Brown, Christopher Overman, Carolyn Carry-McDonald, David Arnold, Karl G. Anuta on
behalf of Annunziata Gould, and Water Watch of Oregon.
10. In summary, the comments received expressed concern regarding impacts to the water table; lack of
adequate mitigation under the Deschutes Groundwater Mitigation administrative rules; lack of a
demonstrated need for the water requested; relationship of this application to existing permit (G-
17036) and other pending requests (Application G-19139 and T-13703); impacts on neighboring
domestic wells; the use-quasi-municipal-is not a short-term or fixed-duration use, as required by
the statutes governing limited licenses.
11. The Department has determined that the use is subject to its rules under OAR 690-33-0310. These
rules aid the Department in determining whether a proposed use will impair or be detrimental to the
public interest with regard to sensitive, threatened, or endangered fish species. Consistent with the
rules, Oregon Department of Fish Wildlife has submitted comments, noting that a mitigation plan
has been approved by Deschutes County, in consultation with ODFW, in order to achieve no net lo ss
of fish and wildlife habitat and provide a net benefit to the resource. This mitigation plan is outlined
in the Resort's Final Master Plan, with impacts to fishery resources specifically addressed in the
2008 addendum. ODFW has determined that a better understanding of the proposed uses is needed
in order to assess whether they align with the 2008 addendum.
12. The Oregon Department of Fish and Wildlife (ODFW) also commented, noting that a mitigation
plan has been approved by Deschutes County, in consultation with ODFW, in order to achieve no
net loss of fish and wildlife habitat and provide a net benefit to the resource. ODFW has determined
Application LL-1879 Page 2 of 4 Final Order
Anuta Exhibit 7 - Page 2 of 4
that a better understanding of the proposed uses is needed in order to assess whether they align with
the agreed-upon mitigation.
13. A response to the pj blic comments was received from Janet E. Newman, on behalf of the applicant,
Kameron DeLashm~tt and Pinnacle Utilities, LLC.
I
14. Deschutes County ¥s indicated that the proposed use is compatible with the applicable
acknowledged comprehensive land-use plan. A copy of the land use compatibility statement is in the
file.
Conclusions of Law
The proposed water use will impair or be detrimental to the public interest pursuant to OAR 690-340-
0030(2).
Order
Therefore, pursuant to ORS 537.143, ORS 537.144, and OAR 690-340-0030, Application LL-1879 is
denied.
Dwight
Services vision Administrator,for
Thomas M. Byler, Director
Oregon Water Resources Department
cc: Jeremy T. Giffin, District 11 Watermaster
Aaron Maxwell, ODFW
Danette Faucera, ODF)V
Deschutes, DEQ
John Short, Water Right Services, LLC, Agent -PO Box 1830, Bend, OR 97709
Kimberley Priestley, Water Watch of Oregon -213 SW Ash St STE 208 , Portland, OR 97204
Tana Brown -19820 Connarn Rd, Bend, OR 97703
Christopher Overman 19810 Connarn Rd., Bend, OR 97703
Carolyn Carry-McDonald -20058 Sunglow Court, Bend, OR 97703
David Arnold -19830 Connarn Rd, Bend, OR 97703
Karl G. Anuta & Annunziata Gould -735 SW First Ave, 2nd Floor, Portland, OR 97204
Janet E. Neuman -888 SW Fifth Ave., Suite 1600, Portland, OR 97204
Surface Water Section
File
Application LL-1879 Page 3 of4 Final Order
Anuta Exhibit 7 - Page 3 of 4
If you need further ass istance, please contact the Water Rights Section at the address, phone number,
or fax number below. When contacting the Department, be sure to reference your lim ited li cense
number for fastest service.
Remember, this limited license does not provid e a secure source of water. Water use can be revoked
at any time. Such revocation may be prompted by field regulatory activities or many other reasons.
Water Rights Section
Oregon Water Resources Department
725 Summer Street NE, Suite A
Salem OR 97301-1271
Phone: (503) 986-0817 Fax: (503) 986-0901
Application LL-1879 Page 4 of 4
·' ! "
Final Order
Anuta Exhibit 7 - Page 4 of 4
MEMO
To: Kristopher Byrd, Well Construction and Compliance Section Manager
From: Travis Kelly, Well Construction Program Coordinator
Subject: Review of Water Right Application G-19139
Date: August 24, 2021
The attached application was forwarded to the Well Construction and Compliance Section by the Groundwater Section. Mike Thoma reviewed the application. Please see Mike’s Groundwater Review and the Well Report.
Applicant’s Wells #1 through #7 (Proposed Wells): Wells #1 through #7 are proposed wells, therefore they cannot be reviewed for construction. Construction of these proposed wells shall be completed in a manner that protects ground water resources as required under Oregon Administrative Rules 690-200 through 690-240. During construction of these well, specific
attention should be paid to ensure sealing requirements are met and that the wells do not
commingle aquifers.
The construction of proposed Wells #1 through #7 may not satisfy hydraulic connection issues.
Applicant’s Well #8 (DESC 756): Based on a review of the Well Report, Applicant’s Well #8
seems to protect the groundwater resource.
The construction of Applicant’s Well #8 may not satisfy hydraulic connection issues.
Approved:
Anuta Exhibit 8 - Page 1 of 10
Anuta Exhibit 8 - Page 2 of 10
Groundwater Application Review Summary Form
Application # G _19139_
GW Reviewer _Mike Thoma_ Date Review Completed: _08/12/2021_
Summary of GW Availability and Injury Review:
☒ Groundwater for the proposed use is either over appropriated, will not likely be available in the
amounts requested without injury to prior water rights, OR will not likely be available within the
capacity of the groundwater resource per Section B of the attached review form.
Summary of Potential for Substantial Interference Review:
☒ There is the potential for substantial interference per Deschutes Basin Rules.
Summary of Well Construction Assessment:
☐ The well does not appear to meet current well construction standards per Section D of the attached
review form. Route through Well Construction and Compliance Section.
This is only a summary. Documentation is attached and should be read thoroughly to understand the
basis for determinations and for conditions that may be necessary for a permit (if one is issued).
Anuta Exhibit 8 - Page 3 of 10
WATER RESOURCES DEPARTMENT
MEMO _08/12/2021_
TO: Application G-_19139_
FROM: GW: _Mike Thoma_ (Reviewer's Name)
SUBJECT: Scenic Waterway Interference & General/Local Surface Water Evaluation for
Deschutes Ground Water Study Area
The source of appropriation is within or above the Deschutes Scenic
Waterway Use the Scenic Waterway condition (Condition 7J). PREPONDERANCE OF EVIDENCE FINDING UNDER ORS 390.835:
Department has found that there is a preponderance of evidence that the proposed use of groundwater will measurably reduce the surface water flows necessary to maintain the free-flowing character of the Deschutes Scenic Waterway in quantities necessary for recreation, fish and wildlife.
LOCALIZED IMPACT FINDING
☒ The proposed use of groundwater will have a localized impact to surface water
in the __Middle Deschutes_____ River/Creek Subbasin.
If the localized impact box above is checked, then the water use under any right issued pursuant to this application is presumed to have a localized impact on surface water within the identified subbasin. Mitigation of the impact, originating from within the Local Zone of Impact identified by the Department, will be required before a permit may be issued for the proposed use.
If the localized impact box above is not checked, then the water use under any right issued pursuant to this application is presumed to have a general (regional) impact on surface water. Mitigation of the impact, originating anywhere within the Deschutes Basin above the Madras gage, will be required before a permit may be issued for the proposed use.
Anuta Exhibit 8 - Page 4 of 10
PUBLIC INTEREST REVIEW FOR GROUNDWATER APPLICATIONS TO: Water Rights Section Date 08/12/2021 FROM: Groundwater Section Mike Thoma
Reviewer's Name SUBJECT: Application G- _19139_ Supersedes review of
Date of Review(s)
PUBLIC INTEREST PRESUMPTION; GROUNDWATER
OAR 690-310-130 (1) The Department shall presume that a proposed groundwater use will ensure the preservation of the public
welfare, safety and health as described in ORS 537.525. Department staff review groundwater applications under OAR 690-310-140 to determine whether the presumption is established. OAR 690-310-140 allows the proposed use be modified or conditioned to meet
the presumption criteria. This review is based upon available information and agency policies in place at the time of evaluation.
A. GENERAL INFORMATION: Applicant’s Name: Kameron DeLashmutt/Pinnacle Utilities, LLC County: Deschutes A1. Applicant(s) seek(s) 9.28 cfs from 8 well(s) in the Deschutes Basin,
Upper Deschutes subbasin A2. Proposed use Quasi-Municipal Seasonality: Year round A3. Well and aquifer data (attach and number logs for existing wells; mark proposed wells as such under logid):
Well Logid Applicant’s Well # Proposed Aquifer* Proposed Rate(cfs) Location (T/R-S QQ-Q) Location, metes and bounds, e.g. 2250' N, 1200' E fr NW cor S 36
1 PROP 1 Deschutes Fm 9.28 15S/12E-28SENE 2519’S, 578’W fr NE cor S 28 2 PROP 2 Deschutes Fm 9.28 15S/12E-28NWSE 2958’S, 2316’W fr NE cor S 28 3 PROP 3 Deschutes Fm 9.28 15S/12E-28SENW 1752’S, 3044’E fr NE cor, S 28 4 PROP 4 Deschutes Fm 9.28 15S/12E-29NWSE 1677’N, 1466’W fr SE cor S 29 5 PROP 5 Deschutes Fm 9.28 15S/12E-20NESE 205’S, 434’W fr E1/4 cor S 20 6 PROP 6 Deschutes Fm 9.28 15S/12E-20SWNE 244’N, 1667’W fr E1/4 cor, S 20 7 PROP 7 Deschutes Fm 9.28 15S/12E-17SENW 2446’S, 1180’W fr N1/4 cor, S 17 8 DESC 756 8 Deschutes Fm 9.28 15S/12E-29NENE 900’S, 850’W fr NE cor S 29
* Alluvium, CRB, Bedrock
Well Well Elev ft msl
First Water ft bls
SWL ft bls SWL Date
Well Depth (ft)
Seal Interval (ft)
Casing Intervals (ft)
Liner Intervals (ft)
Perforations Or Screens (ft)
Well Yield (gpm)
Draw Down (ft)
Test Type
1 3211 - - - 800-900 - -2-18 - - - - - 2 3231 - - - 800-900 - -2-18 - - - - - 3 3274 - - - 900-1000 - -2-18 - - - - -
4 3213 - - - 900-1000 - -2-18 - - - - - 5 3626 - - - 800-900 - -2-18 - - - - - 6 3457 - - - 800-900 - -2-18 - - - - -
7 3119 - - - 800-900 - -2-18 - - - - - 8 3339 830 730 1/15/1991 880-1000 0-18.5 -1.5-18.5 - - 10 0 A
Use data from application for proposed wells. A4. Comments: Applicant proposes to draw water from the Deschutes Formation, drawn from one existing 8” well and seven proposed 14” wells for general construction, road construction, and initial quasi-municipal uses. DESC 756 is open below the
18.5 ft of casing and draws water from “frac. Lava” at depths between 830 to 880 feet below land surface. Several of the POAs listed on this application are listed in application LL-1879 and T-13703. This application is requesting water as
“backup to Permit G-17036,” which is for six proposed wells in the same area.
A5. ☒ Provisions of the Deschutes (OAR 690-505) Basin rules relative to the development, classification and/or
management of groundwater hydraulically connected to surface water ☒ are, or ☐ are not, activated by this application.
(Not all basin rules contain such provisions.) Comments: The proposed POAs are within the Deschutes Ground Water Study Area
Anuta Exhibit 8 - Page 5 of 10
A6. ☐ Well(s) # , , , , , tap(s) an aquifer limited by an administrative restriction.
Name of administrative area: Comments:
B. GROUNDWATER AVAILABILITY CONSIDERATIONS, OAR 690-310-130, 400-010, 410-0070
B1. Based upon available data, I have determined that groundwater* for the proposed use:
a. ☐ is over appropriated, ☒ is not over appropriated, or ☐ cannot be determined to be over appropriated during any
period of the proposed use. * This finding is limited to the groundwater portion of the over-appropriation determination as prescribed in OAR 690-310-130;
b. ☐ will not or ☒ will likely be available in the amounts requested without injury to prior water rights. * This finding
is limited to the groundwater portion of the injury determination as prescribed in OAR 690-310-130;
This finding assumes that the existing permit, G-17036, will not be used in conjunction with this use, as is stated in the application.
c. ☒ will not or ☐ will likely to be available within the capacity of the groundwater resource; or
d. ☐ will, if properly conditioned, avoid injury to existing groundwater rights or to the groundwater resource:
i. ☐ The permit should contain condition #(s) ;
ii. ☐ The permit should be conditioned as indicated in item 2 below.
iii. ☐ The permit should contain special condition(s) as indicated in item 3 below;
B2. a. ☐ Condition to allow groundwater production from no deeper than ft. below land surface;
b. ☐ Condition to allow groundwater production from no shallower than ft. below land surface;
c. ☐ Condition to allow groundwater production only from the
groundwater reservoir between approximately ft. and ft. below land surface;
d. ☐ Well reconstruction is necessary to accomplish one or more of the above conditions. The problems that are likely
to occur with this use and without reconstructing are cited below. Without reconstruction, I recommend withholding issuance of the permit until evidence of well reconstruction is filed with the Department and approved by the Groundwater Section.
Describe injury –as related to water availability– that is likely to occur without well reconstruction (interference w/ senior water rights, not within the capacity of the resource, etc):
B3. Groundwater availability remarks: There are several wells in the area producing from the same groundwater source as the proposed POAs that have water level
records that show a long-term declining trend. There are a few wells in the immediate vicinity of Cline Buttes that do not show the same long-term declines, but the majority of wells in the broader area show significant, monotonic declines (see
hydrograph below). A joint study by the USGS and OWRD concluded that this widespread decline, which extends toward Powell Buttes to the east, is due to climate changes and canal lining (which have reduced recharge to the aquifer locally) as
well as groundwater pumping (Gannett, et. al., 2013). The specific reason why wells closer to Cline Butte are not showing the same declines may be due to local heterogeneity (lateral and vertical) within the aquifer system, less groundwater
pumping in the immediate area, or other factors, but those wells and trends do not represent the regional aquifer-system trend. Since existing groundwater appropriation has been found to be contributing to water level declines in the area, any new
appropriation will continue or increase those declines and so the proposed new use is not within the Capacity of the Resource.
Anuta Exhibit 8 - Page 6 of 10
C. GROUNDWATER/SURFACE WATER CONSIDERATIONS, OAR 690-09-040 Analysis in Section C is omitted in leu of the Deschutes Mitigation Rules
References Used:
Gannett, M. W. and Lite, K. E., 2004, Simulation of Regional Ground-Water Flow in the Upper Deschutes Basin, Oregon, USGS Water Resources Investigation Report 2003-4195, 84 p., https://pubs.er.usgs.gov/publication/wri034195 Gannett, M. W. and Lite, K. E., 2013, Analysis of 1997-2008 Groundwater Level Changes in the Upper Deschutes Basin, Central Oregon, USGS Scientific Investigations Report 2013-5092, 34p., https://pubs.er.usgs.gov/publication/sir20135092 Gannett, M. W., Lite Jr, K. E., Morgan, D. S., and Collins, C. A., 2001, Ground-Water Hydrology of the Upper Deschutes Basin, Oregon, USGS Water-Resources Investigations Report 00-4162, 74 p., https://pubs.usgs.gov/wri/wri004162/pdf/WRIR004162.pdf Gannett, M.W., Lite, K.E., Jr., Risley, J.C., Pischel, E.M., and La Marche, J.L., 2017, Simulation of groundwater and surface-water flow in the upper Deschutes Basin, Oregon: U.S. Geological Survey Scientific Investigations Report 2017–5097, 68 p., https://doi.org/10.3133/sir20175097. Lite, K. E. and Gannett, M. W., 2002, Geologic Framework of the Regional Ground-Water Flow System in the Upper Deschutes Basin, Oregon. USGS Water-Resources Investigation Report 02-4015, 44 p., https://pubs.er.usgs.gov/publication/wri024015 Sherrod, D. R., Taylor, E. M., Ferns, M. L., Scott, W. E., Conrey, R. M. and Smith, G. A., 2004, Geologic Map of the Bend 30-x-60-Minute Quadrangle, Central Oregon. U. S. Geological Survey Geologic Investigations Series Map I-2683. 49p., https://pubs.usgs.gov/imap/i2683/
D. WELL CONSTRUCTION, OAR 690-200
D1. Well #: Logid: D2. THE WELL does not appear to meet current well construction standards based upon:
a. ☐ review of the well log;
b. ☐ field inspection by ;
c. ☐ report of CWRE ;
d. ☐ other: (specify)
D3. THE WELL construction deficiency or other comment is described as follows:
D4. ☐ Route to the Well Construction and Compliance Section for a review of existing well construction.
Anuta Exhibit 8 - Page 7 of 10
Well Location Map
Anuta Exhibit 8 - Page 8 of 10
Application Review Map showing water-level wells and geology (from Sherrod et al., 2004)
Anuta Exhibit 8 - Page 9 of 10
Water-Level Measurements in Nearby Wells; water levels below 2650 ft are from wells in the immediate vicinity of Cline
Buttes
Anuta Exhibit 8 - Page 10 of 10
KARL G. ANUTA
LAW OFFICE OF KARL G. ANUTA, P.C.
735 SW FIRST AVENUE, 2ND FLOOR
TRIAL ATTORNEY PORTLAND, OREGON 97204 E-MAIL
LICENSED IN (503) 827-0320 KGA@INTEGRA.NET
OREGON & WASHINGTON FACSIMILE (503) 386-2168
July 1, 2021
VIA ELECTRONIC MAIL (corey.a.courchane@oregon.gov)
AND FAX (1-503-986-0901)
Oregon Dept of Water Resources
Attn: Corey A. Courchane
725 Summer St., NE, Suite A
Salem, OR 97301
Re: Application T-13703
Temporary Transfer Request
Kameron DeLashmutt/Pinnacle Utilities
Dear Mr. Courchane:
This office represents Annunziata Gould, a local public interest advocate, on
water issues. These comments are submitted on behalf of Ms. Gould.
Since the Department has not yet completed its evaluation of this application, we
hope that these comments will be helpful to your analysis and decision making.
BACKGROUND
As the Department well knows, the Deschutes Basin groundwater levels are in
decline. Scenic waterway flows are being negatively affected. The ground and suface
water resources in the area are being mined and used at a rate that is not sustainable
or stable.
The Department is charged with managing and protecting groundwater and
surface water. The Department is the trustee of these resources, which are owned by
the public. The Department is prohibited from allowing over appropriation of ground or
surface water. The Department has an obligation to protect senior water right holders in
the basin, from harm by new or junior users.
SPECIFIC CONCERNS ABOUT THIS PROPOSED TRANSFER
These comments are directed at the Temporary Transfer requested by Mr.
DeLashmutt and his Pinnacle Utilities LLC (aka Thornburgh Resort or TBR). The
Department should deny or condition the proposed transfer due to one or more the
Page 1 of 5
Anuta Exhibit 9 - Page 1 of 12
following reasons:
1. There is no proof that the proposed addition of 7 wells, and the expansion
of use of an additional existing well, will not cause injury to one or more
existing instream water rights on Wychus Creek and/or the Deschutes
River, and/or in other water bodies. Consequently under the obligations
imposed by ORS 536.025, and consistent with OAR 690-380-8002(2) the
proposed temporary transfer should be denied.
2. There is no proof that the proposed addition of 7 wells, and the expansion
of use of an additional existing well, will not cause measurable reductions
in the surface water flows necessary to maintain the free flowing character
of one or more scenic waterways, in quantities necessary for recreation,
fish and wildlife. Consequently under the obligations imposed by ORS
536.025, and consistent with OAR 690-380-8002(2), and consistent with
the exiting limitations present in the Certificate from which transfer is
proposed, the proposed temporary transfer should be denied.
3. Local sources report that the Tree Farm Certificate, a portion of which is
proposed for transfer, was not in fact been used year round. It was
instead, Ms. Gould is told, only been used in the summer of late.
Consequently allowing year round use of the .453 CFS at TBR for 5 years
would be an expansion of the existing water right.
4. The 7 new wells that are proposed will all need mitigation, to comply with
the Deschutes Groundwater Mitigation Rules found in OAR Chapter 690,
Division 505. However, there is no indication in the application if, or if so
how, that mitigation will be provided - much less a demonstration that any
proposed mitigation will meet the requirements of those Rules.
5. The extent, if any, of the current use of the existing well (#8) on the TBR is
not documented in the application. It is quite possible that some, or full,
use of that well has not occurred for 5 or more consecutive years. If so,
the use of that well may potentially subject to forfeiture and not available
for further use.
6. Well #8 appears to be one of the same wells that the applicant
represented to Deschutes County in the land use proceedings over TBR,
would be abandoned. See, attached Map from 2008, prepared by TBR’s
consultant. The County relied on those representations, in issuing land
use approvals for some or all of TBR. Consequently use of well #8 as part
of a temporary transfer would be inappropriate and likely unlawful.
7. Since the extent, if any, of the current use of the existing well (#8) on the
TBR is not documented in the application, any use of that well above and
beyond the existing use levels (if any) should be treated as an expansion
of use that should be subject to additional mitigation requirements under
Page 2 of 5
Anuta Exhibit 9 - Page 2 of 12
the Basin Plan Groundwater Protection Rules.
8. There is no evidence that the proposed 7 new wells (or the existing well)
will be operated consistent with the limitations in Certificate 94958. Those
include the requirement that the use of water under the Certificate will not
“measurable reduce the surface water flows necessary to maintain the
free flowing character of a scenic waterway in quantities necessary for
recreation, fish and wildlife.” To the contrary, it is already proven and
accepted by the courts that the TBR’s “consumptive use of groundwater is
anticipated to impact an offsite fish-bearing stream, Whychus Creek, by
reducing instream water volumes and increasing water temperatures.”
Gould v. Deschutes County, __ Or LUBA ___, ___(2021)(LUBA #2020-
095 June 11, 2021 Slip Op. p.12)(citing Gould v. Deschutes County, 79 Or
LUBA 561 (2019, aff’d 310 Or App 868 (2021)).
9. There is no proof that the proposed 7 new wells (or the existing well) will
be operated consistent with the limitation in Certificate 94958, that the
water use be measured with a flow meter.
10. There is no proof that the proposed 7 new wells (or the existing well) will
be operated consistent with the limitations in Certificate 94958, which
include that the land uses associated with the water use be in compliance
with land use laws. To the contrary, some of the proposed water use that
is listed in the Temporary Transfer application would be on portions of a
Tax Lot (#8000), which are specifically not authorized or approved by
Deschutes County to be used by TBR. See attached maps showing areas
of Tax Lot 8000 that are not approved for Resort use. Yet the Revised
Map provided by the applicant for the “ON” lands specifically shows use of
the proposed transferred water on those same portions of Tax Lot 8000.
See, attached annotated Map. Likewise the Table 2 Description of
Changes specifically lists in 4 different rows (on p.10) use of the proposed
transferred water on Tax Lot 8000. See, attached annotated Table
excerpt.
11. A number of the exact same wells are also proposed for additional
significant water withdrawal, under a Limited License (LL) application that
is currently pending before the Department - LL-1879. That application
proposes the use of an additional 4.5 CFS in Quasi-Municipal water from
wells #1, 2, 4, 5 & 8 in the current temporary transfer application. The local
Watermaster has already indicated in a Water Availability Statement for
that LL, that the aquifer that these wells will likely tap is already showing
“steady long term decline.”
12. Four of the new wells listed in the transfer application are also already
listed for use in an expired Permit also held by Pinnacle. Specifically, wells
# 3, 5, 6 & 7 are some of the same wells from which the same applicant
proposes to withdraw 9.28 CFS of additional water for Quasi-Municipal
Page 3 of 5
Anuta Exhibit 9 - Page 3 of 12
use under Permit G-17036. Specifically, well #3 in this transfer application
appears to be the same as well #1 in the Permit G-17036 map; Well #5 in
the transfer application corresponds to well #4 in the G-17036 map; Well
#6 in the application appears to be well #5 in G-17036 map; And well #7 in
the application appears to be well #6 in the G-17036 map. A copy of the
G-17036 map is attached. The impacts of withdrawing both the proposed
transferred water, and the water that is hypothetically authorized under the
expired Permit G-17036 could be significant and have not been addressed
or disclosed in the application. Those impacts will potentially create more
harm to scenic waterway flows, and further degrade an already steadily
declining aquifer.
13. Admittedly, Permit G-17036 is expired, and it quite likely it will ultimately
be cancelled. However, the same applicant currently has yet another
application pending, for all of the same 8 wells referenced in the transfer
application. Specifically, Application G-19139 seeks the same 9.28 CFS
from the same 8 wells that are referenced in the temporary transfer
application. A copy of that map from that application is also attached. In
short, the concerns about excessive use of water in a way that could harm
the aquifer, near by well, Whychus Creek and/or the Deschutes River -
and that could have other as yet unevaluated impacts on ground and
surface water - remain valid even after G-17036 is cancelled.
14. The applications currently pending, T-13703, LL1879, G-19139, in
conjunction with Permit G-17036 constitute “layered” water rights and
approval of one or more of them would be contrary to OAR 690-380-2240.
15. Given the Groundwater limitations in the Basin, given the already harmed
Scenic Waterways, and given the fact that multiple uses under multiple
permits/certificates/licenses are currently proposed for this location, any
use that was (inappropriately) approved under any of the
permits/certificates/licenses at issue must be conditioned to require
detailed and extensive measurement and reporting. Without that sort of
conditioning the local Watermaster will unable to tell whether each use is
taking only what each permits/certificates/licenses authorizes. Without that
sort of conditioning the local Watermaster will unable to tell whether the
holder is exceeding their lawful use or harming the aquifer in some other
manner. That measurement and reporting should - at a minimum -
include: (i) the installation of totalizing flow meters on each well;1 (ii) daily
tabulations of exactly how much water was used, under each
permit/certificate/license and where it was used; (iii) weekly or monthly
recordation of static water levels in each well; and (iv) monthly reporting of
all measurements to both the local Watermaster and the Department’s
Groundwater section in Salem.
1 The local Watermaster, in their Water Availability Statement for LL-1879, is already
recommending requiring flow meters and record keeping for all wells at issue in that application.
Page 4 of 5
Anuta Exhibit 9 - Page 4 of 12
SUMMARY
The requested temporary transfer should be denied. The applicant has not
demonstrated that the proposed use is completely lawful, and that it will not use water in
a way that is inconsistent with the law and the Certificate under which transfer is
proposed.
The applicant is attempting to stack or “layer” multiple different use authorizations
onto the same wells. There has been no analysis of the impacts on the resource (both
ground and surface waters) of this sort of proposed extensive pumping under multiple
rights. Nor has the applicant shown that the proposed use complies with the
Groundwater Protection Rules that apply in this Basin.
For all the reasons articulated in this comment the transfer application should be
denied.
If you have any questions, please do not hesitate to contact me.
Sincerely,
/s/ Karl G. Anuta
Karl G. Anuta
c: client
Page 5 of 5
Anuta Exhibit 9 - Page 5 of 12
Anuta Exhibit 9 - Page 7 of 12
Anuta Exhibit 9 - Page 8 of 12
Anuta Exhibit 9 - Page 9 of 12
Anuta Exhibit 9 - Page 10 of 12
Anuta Exhibit 9 - Page 12 of 12
Anuta Exhibit 10 - G-19139 Application Map