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2021-11-19 Applicant Rebuttal 247-21-000920-A, 553-MC
1 Tracy Griffin From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com> Sent:Friday, November 19, 2021 4:06 PM To:Angie Brewer Cc:liz@lizfancher.com; Schunk, Andrea K.; Kameron DeLashmutt Subject:Applicant Rebuttal for File No. 247-21-000553-MC; 920-A [IWOV-pdx.FID4723617] Attachments:Applicant Rebuttal for File No. 247-21-000553-MC; 920-A.pdf; 20211119 KD Rebuttal Final.pdf [EXTERNAL EMAIL] Angie – I’ve attached the Applicant’s Rebuttal documents for File No. 247-21-000508-SP; 849-A. A hard copy is also being delivered. Have a terrific weekend. Ken Schwabe Williamson & Wyatt Kenneth Katzaroff Attorney Direct: 206-405-1985 kkatzaroff@schwabe.com Admitted in Washington and Oregon. 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U.S. Bank Centre | 1420 5th Avenue | Suite 3400 | Seattle, WA | 98101-4010 | M 206-622-1711 | F 206-292-0460 | schwabe.com Kenneth Katzaroff Admitted in Washington and Oregon T: 206-405-1985 C: 206-755-2011 KKatzaroff@SCHWABE.com November 19, 2021 VIA E-MAIL Hearings Officer Frank c/o Angie Brewer, Senior Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE: Deschutes County File Nos. 247-21-000553-MC; -920-A. Our File No.: 135849-262760 Dear Hearings Officer Frank: Our office is co-counsel with Liz Fancher for the applicant (“Thornburgh”) in the above- referenced matters. This letter constitutes the applicants’ rebuttal evidence submittal and responds to new issues and evidence filed during the open record period. Unless otherwise noted abbreviations have the same meaning as established in applicants’ earlier submittals. 1. Response to COLW Lot of Record Argument COLW’s argued that the finding of the Board of Commissioners in the CMP approval that the entire Resort property is a lot of record may not be relied on by the County as a basis to approve development applications for the Resort. The applicant disagrees but provided evidence that shows that all parts of the Resort property have also been determined to be or qualify to be verified as lots of record in land use actions prior to November 1, 2017. The parcels that have been found to be lots of record are excepted from the requirement to be verified prior to or during the review of this land use application. DCC 22.04.040(B)(2)(c). The two tax lots that have not been determined to be lots of record are Tax Lots 7801 and 8000. The applicant provided documentation to show that Tax Lots 7801 and 8000 are lots of record and provides the following more detailed discussion to show that each qualify as lots of record. The approximate location of these tax lots is depicted on the following page: Hearings Officer Frank November 19, 2021 Page 2 schwabe.com State Law and County’s Interpretation of Local Lot of Record Rules Pursuant to ORS 92.017, once a lot or parcel is lawfully created it remains a separate and distinct, lawful lot or parcel with limited exceptions. ORS 92.017 protects historic lots and parcels created by deeds, as well as lots and parcels created by subdivisions and partitions, from being consolidated into a single lot or parcel due to common ownership or conveyance on a subsequent deed. ORS 92.017 provides that a “lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law.” Affirmative action to eliminate lot boundaries by platting or through vacation proceedings is required. Weyerhaeuser Real Estate Development Co. v. Polk County, 246 Or App 548 (2011)(recorded partition plat approved under law in effect in early 1983 vacated historic lot lines for lots shown on partition plat; discusses acts that eliminate lot lines); Kishpaugh v. Clackamas County, 24 Or LUBA 164, 172 (1992)(ORS 92.017 requires counties to recognize lawfully created lots and parcels “until some action is taken to erase the lawfully-established property lines”). In Deschutes County, deeds and patent deeds recorded prior to April 5, 1977 created separate and distinct lots or parcels upon recording. Subsequent conveyances of a lot or parcel with other properties in a single deed do not consolidate lawfully created lots unless the county has approved a lot consolidation application. The County has applied this rule to numerous, prior legal lot of record determination cases, including the Board’s approval of the Tumalo Irrigation District application. The Board’s interpretation was upheld by LUBA in the case of Central Oregon Landwatch v. Deschutes County (Tumalo Irrigation District), 75 Or LUBA 328 (2017). Hearings Officer Frank November 19, 2021 Page 3 schwabe.com We have searched the chain of title for the subject properties. We have also reviewed County land use records, surveyor's records of partitions, subdivisions and surveys and County Clerk deed records. The parcel lines of Tax Lot 8000 and Tax Lot 7801 have not been vacated. The parcels, also, have not been further divided as provided by law. Deschutes County Lot of Record Definition Tax Lots 7901 and 8000 meet the definition of a lot of record provided by DCC 18.04.030. The applicable sections of DCC 18.04.030 that define lots of record are: “Lot of Record” means: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: Response: Each of the lots of record are at least 5,000 square feet in area and at least 50 feet wide. According to the Tax Assessor, Tax Lot 8000 is approximately 156.27 acres and Tax Lot 7801 is approximately 38.76 acres in size. Findings demonstrating compliance with zoning and land division requirements, where applicable, are provided below. 1. By partitioning land as defined in ORS 92; Response: A County partition approval, Exhibit D of Exhibit 103, depicts and recognizes Tax Lot 7801 as a single unit of land. This approval did not partition land as the term is defined by ORS 92, however, because it did not divide land. The single parcel depicted on the partition plan (now Tax Lot 7801) already existed as a lawfully created parcel as explained below. ORS 92.010 (9) says: (9) “Partitioning land” means dividing land to create not more than three parcels of land within a calendar year, but does not include ***” 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; Response: Deschutes County adopted partition regulations in 1977. These regulations were effective on or about April 5, 1977. It was lawful to create lots or parcels by deed prior to this date. Both lots of record were created by deeds prior to this date. Tax Hearings Officer Frank November 19, 2021 Page 4 schwabe.com Lot 8000 was created on April 18, 1910 by the issuance of a patent by the USA to Lorenzo S. Thomas that is recorded at 1 Patent 532 of the patent records of the Deschutes County Clerk (Exhibit 109). Tax Lot 7801 was created on April 30, 1918 by a deed from the State of Oregon to John Park recorded at Volume 23, page 256 of the deed records of the Deschutes County Clerk (Exhibit 103, Ex C). Neither of the lots created by deed were subject to minimum lot sizes on the date of the creation. B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall be recognized as a lot of record. Response: Neither lot of record was created pursuant to ORS 92.176. C. The following shall not be deemed to be a lot of record: 1. A lot or parcel created solely by a tax lot segregation because of an assessor’s roll change or for the convenience of the assessor. 2. A lot or parcel created by an intervening section or township line or right of way. 3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject to DCC 18.04.030(A)(3). 4. A parcel created by the foreclosure of a security interest. Response: Neither lot of record was created by any of these means. 2. Timeline of Thornburgh Approvals We have attached a copy of a timeline of Thornburgh approvals that documents the history of the adoption and interpretation of FMP Conditions 10 and 38 to respond to Ms. Gould’s arguments regarding the meaning of these conditions. The timeline is Exhibit 123. 3. Findings re Matters to be Modified To respond to Ms. Gould’s argument that the changes proposed are substantial, we provide copies of the findings from the BOCC’s 2006 decision that address code requirements that the applicant is proposing to update as Exhibit 124. 4. Terms Used in Modification Criteria Webster’s Third New International Dictionary Unabridged defines “materially”, as we believe it is used in DCC 18.113.080, to mean: “to a significant extent or degree.” Hearings Officer Frank November 19, 2021 Page 5 schwabe.com 5.Ms. Gould’s Position in 2018 re Modifications Ms. Gould argued in 2018 that the approval of a substantial modification to the FMP would not require a new CMP or FMP application. A copy of the relevant part of Ms. Gould’s local appeal of Hearings Officer Olsen’s approval of the Phase A-1 is provided as Exhibit 125. 6.Matters Also Addressed in 247-21-000508-SP; -849-A Appellant Gould, COLW, and others have all submitted the same or substantially the same arguments and claims in this file (247-21-000553-MC; -920-A) as for File No. 247-21-000508- SP; -8490-A. Rather than repeat ourselves and require the hearings officer to read the same documents more than once, we submit the applicant’s November 19, 2021 in that case as Exhibit 126, and incorporate the arguments and exhibits herein. These include, but are not limited to, the issues surrounding the BLM, drought and water availability, and Appellant Gould appeal the Golf Course decision to the Supreme Court of Oregon.1 Respectfully submitted this 19th day of November, 2021. Very truly yours, SCHWABE, WILLIAMSON & WYATT, P.C. Kenneth Katzaroff PDX\135849\262760\JKKA\32300546.1 1 Exhibit 123 – Timeline of Approvals, is duplicated as Exhibit 29 in File No. 247-21-000508-SP; -849-A. EXHIBIT LIST FOR FILE 247-21-000920-A/247-21-553-MC Updated November 19, 2021 Central Land has filed the following evidence in the record of File 247-21-000920-A/247-21-553-MC in its hearing letters and in post-hearing submittals: Exhibit Description of Exhibit 101 Petition for Review (Gould) to LUBA for LUBA No. 2018-140 (Phase A-1 Tentative Plan (part) 102 Findings and Decision for MC-13-4, Modification of Caldera CMP and FMP (38 weeks of OLU rentals) 103 Lot of Record memorandum by Liz Fancher and Ken Katzaroff for Central Land and its exhibits A-E. 104 BOCC Decision Thornburgh CMP Decision, File CU-05-5, DC 2006-151 (part re lot of record) 105 Lot of Record Determination, File 247-14-000450-LR (TL 7700 and 7701) 106 Lot of Record Determination LR 91-56 (TL 7800) 107 Lot of Record Determination LR-98-44 (TL 7900) 108 File 247-140999449-LR, Lot of Record Determination for TL 5000, 5001 and 5002 109 Patent deed from USA to Lorenzo Thomas (TL 7800) 110 Illustration of Possible Lot Line Adjustment of TL 7800, 7801 and 7900 111 Decision Approving Phase A-1 Tentative Plan, File 247-18-000386-TP/454-SP/592- MA (re controlling zoning rules) 112 BOCC Decision Thornburgh CMP Decision, File CU-05-5, DC 2006-151 (part re FMP Condition 33) 113 BOCC Decision re Review of Alleged Code Violations during land use application review; File 247-18-000241-A/247-A, 247-17-000775-ZC/776-PA 114 Administrative Decision Approving Change in OLU Ratio and Availability for Pronghorn Resort, File MC-13-06 115 Administrative Decision Approving Change in OLU Ratio and Availability for Eagle Crest Resort, File MC-14-13 116 Administrative Decision Approving Change in OLU Ratio for Tetherow Resort, File MC-13-03 117 Administrative Decision Approving Change in OLU Availability for Tetherow Resort 118 Decision of Board of Commissioners for File 247-15-000464-CU/247-18-000009-A, includes hearings officer’s decision for File 247-15-000464-CU 119 Memorandum from David Newton, P.E., C.E.G. dated November 11, 2021 120 Answering Brief; ORS 197.455 & Condition 10 121 Notice of Hearing 122 Letter from K DeLashmutt Dated September 7, 2021, Detailing Owned Water Rights 123 Timeline of Approvals 124 BOCC 2006 CMP 125 Gould 2018 Appeal 126 -508-SP; -849-A Submittal and Exhibits Page 1 Timeline “PDF 2019/2018 Rec” is a reference to a PDF file the applicant filed with the County in a prior proceeding. The referenced pages are provided with this timeline in numerical order. Exhibits are attached as well following the numbered PDF documents. Action When Source of Information CMP approved by BOCC Condition 10 requires a water permit for resort water use and, at the time of each tentative plan/site plan review for each “individual phase,” an accounting of the mitigation “as required under the water right for that individual phase” (site plan and tentative plan development phases). May 10, 2006 DC No. 2006-151, CU-05-20 pp. 93 – 97, Exhibit F OWRD issues final order accepting settlement of appeal of groundwater permit application. OWRD increased required mitigation for Resort water use to “1,356.0 acre-feet in the General Zone of Impact (Anywhere in Deschutes Basin above the Madras gage, which is located below Lake Billy Chinook.)” March 22, 2007 PDF 2019/2018 Rec 408 LUBA Decision re CMP on appeal by Gould and Munson (Remand) Source of groundwater is the regional aquifer of the Deschutes Basin; mitigation credits required by Deschutes Basin groundwater program can be individually owned water rights or purchased from mitigation credit bank or holder. A showing that Thornburgh is not precluded as a matter of law from obtaining water rights permit for resort and mitigation for that use of groundwater meets showing of water availability required by DCC 18.113.070(K) per Bouman v. Jackson County, 23 Or LUBA 628, 647 (1992). An argument that the Resort must obtain Deschutes Basin mitigation credits before CMP approval is inconsistent with Bouman. May 14, 2007 54 Or LUBA 205 (2007) 54 Or LUBA at 264-265 54 Or LUBA at 265-266 54 Or LUBA at 267 Exhibit 123 Page 1 of 49 Page 2 Oregon Court of Appeals (CMP, reversed and remanded) LUBA’s finding that it is feasible for BLM, ODFW and Thornburgh to develop a wildlife plan to meet the no net loss standard was erroneous; a wildlife plan must be development and provided to the public for review. November 7, 2007 216 Or App 150 (2007) 216 Or App at 159-163 BOCC Approved and Revised the CMP on Remand BOCC adopted CMP Condition 37. It says: “Applicant shall demonstrate compliance with DCC 18.113.070(D) [no net loss] by submitting a wildlife mitigation plan to the County as part of its application for Final master plan approval. The County shall consider the wildlife mitigation plan at a public hearing with the same participatory rights as those allowed in the CMP approval hearing.” April 7, 2008 Document 2008-151, Exhibit G LUBA affirms County approval of CMP Approved deferred review of Wildlife Mitigation Plan at time of review of FMP 57 Or LUBA 403, 413-417 (2008) Approval of FMP by County hearings officer Ann Briggs Approved wildlife mitigation plan, including FWMP. Created and imposed Condition 38 to assure compliance with the WMP (including FWMP) by annual monitoring by County staff. FWMP proposes to comply with OWRD mitigation requirements and to include Big Fall Ranch water rights as a part of the OWRD program to provide cold water benefits to the main stem Deschutes River to address water quality issues raised by opponents and ODFW. The remainder of mitigation water required by the FWMP is from mitigation allowed by the OWRD permit. October 8, 2008 M-07-2/MA-08-6 pp. 2, 30, Exhibit H PDF 2019 Rec (Part) & 2018 Rec 1116 Exhibit 123 Page 2 of 49 Page 3 Applicant offered, in letter from Martha Pagel dated August 11, 2008, additional “fish” mitigation including 106-acre feet of annual flow restoration for Whychus Creek (the only mitigation specifically promised for Whychus Creek). PDF 2019/2018 Rec 384- 385 Oregon Court of Appeals (affirmed CMP) Affirmed County’s decision to defer review of the Wildlife Management Plan until review of FMP April 22, 2009 227 Or App 601, rev den 347 Or 258 (2009) LUBA remands FMP approval Ms. Gould argued that no FMP condition of approval [notably not Condition 10] assured compliance with the FWMP. In her Petition for Review, Ms. Gould argued that the only conditions of approval related to fish resources are conditions 38 and 39. LUBA agreed but found that compliance with the FWMP and Whychus Creek mitigation was assured by FMP Condition 38. LUBA remanded the FWMP due to conflicting evidence about the efficacy of TSID mitigation water to meet the no net loss standard for Lower Whychus Creek. The hearings officer found that groundwater impacts on the Deschutes River would be mitigated in part by acquiring Big Falls Ranch water rights and returning that water to Deep Canyon Creek. Ms. Gould argued that the Resort was not required by the FMP to obtain Big Falls Ranch mitigation water. In her Petition for Review, Ms. Gould argued that while OWRD would require mitigation, it would not necessarily be the mitigation water required by the FWMP. LUBA found that “the Fish WMP and August 11, 2008 letter to the hearings officer make it clear that Thornburgh is obligated to mitigate by acquiring the Big Falls Ranch water rights and returning that water to Deep Canyon Creek.” Ms. Gould next argued that mitigation water may not be available from COID and that it must be “actually available and used” to comply with the September 9, 2009 59 Or LUBA 435 (2009) 59 Or LUBA 458-459 Petition for Review LUBA 2008-203, p. 29. 59 Or LUBA 458-459 59 Or LUBA 459 Petition for Review LUBA 2008-203, p. 31, fn 8. 59 Or LUBA 459 Petition for Review p. 31. Exhibit I Exhibit 123 Page 3 of 49 Page 4 FWMP. LUBA rejected this argument and found that the feasibility of obtaining mitigation water had been addressed in Gould I which settled the issue of the availability of mitigation water for OWRD “volume” mitigation. LUBA found that COID water rights would only be secured “if necessary” to meet mitigation obligations under the water permit (Condition 10). [Note: Condition 10 requires an accounting of mitigation required under the water permit. That mitigation water may come from anywhere from the general zone of impact above the Madras gage.] 59 Or LUBA at 459-460. PDF 2019/2018 Rec 408, 2077 Oregon Court of Appeals re FMP (affirmed LUBA) FMP Condition 38 assured compliance with fish mitigation plans, including TSID mitigation for Whychus Creek. FMP Condition 39 provides in-stream water for Whychus Creek from TSID Hearings Officer treated the Wildlife Mitigation Plan as a single plan with addenda, including the M&M Plan, Fish WMP and August 11, 2008 letter (TSID mitigation) February 24, 2010 233 Or App 623 (2010) 233 Or App at 634 233 Or App at 634-635 233 Or App at 635 OWRD Issues Water Rights Permit Permit states: “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.)” April 3, 2013 PDF 2019/2018 Rec 2077- 2081 Deschutes County denies FMP on remand due to decision not to reopen the record to address issue of Whychus Creek water quality and TSID mitigation September 2015 See 78 Or LUBA 118, 121 (2018) Exhibit 123 Page 4 of 49 Page 5 LUBA remands FMP to County based on issues raised by Central Land and Cattle Co. LLC; rejects all arguments raised on cross-appeal by Ms. Gould September 23, 2016 74 Or LUBA 326 (2016) Deschutes County approves FMP on remand After October 2017 78 Or LUBA 118, 122 (2018) LUBA affirms approval of FMP August 21, 2018 78 Or LUBA 118 (2018) Deschutes County approves Phase A-1 Tentative Plan October 30, 2018 PDF 2019/2018 Rec 492 LUBA remands Phase A-1 Tentative Plan LUBA finds that FWMP mitigation plan relied on Big Falls Ranch and COID as sources of water despite its finding to the contrary in Gould v. Deschutes County, 59 Or LUBA 435 (2009). LUBA mistakenly finds that OWRD granted the water right upon a finding that 836 acre-feet of mitigation would be “from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch, and the remaining mitigation water from Central Oregon Irrigation District (COID).” The permit specifies the source of mitigation water as water from the General Zone of Impact. LUBA correctly finds that Big Falls Ranch and COID were identified as sources of mitigation water in the FWMP. Additionally, the FWMP recognizes that water rights will also come from outside the COID district. LUBA agreed that mitigation may be provided in increments by subphase of water use as long as provided in advance of a “development phase” such as the Phase A-1 tentative plan. The issue of the availability of COID mitigation water need not be addressed on remand because reliance on Big Falls Ranch water rights is sufficient to mitigate for Phase A-1 and LUBA agreed that mitigation may be provided in increments by phase of water use. June 21, 2019 79 Or LUBA 561 (2019) 79 Or LUBA at 579 79 Or LUBA at 573 PDF 2019/2018 Rec 2078 79 Or LUBA at 574 PDF 2019/2018 Rec 1114 79 Or LUBA at 574-575 Exhibit 123 Page 5 of 49 Page 6 Comment: The finding that COID water is a required source of mitigation water for the FWMP is binding on the applicant on remand but will not be binding in future development applications. As a result, the applicant wishes to make it clear that the finding is erroneous. The mitigation plan promises the following re “mitigation water”: (a) compliance with OWRD groundwater mitigation requirements which allow mitigation from the general zone of impact above the Madras Gage; (b) Big Falls Ranch water (thermal mitigation for the Deschutes River); and (c) by way of a letter addendum dated August 11, 2008, Three Sisters Irrigation District mitigation for Whychus Creek. PDF 2019/2018 Rec 1116 LUBA affirms County approval of golf course site plan. “Satisfaction of the no net loss standard is ensured through compliance with Condition 38, not Condition 10. *** [We agree with intervenor that Condition 10 is concerned only with satisfaction of DCC 18.113.070(K) regarding the availability of water for resort use and mitigation for the volume of consumptive use, as required by OWRD under the water right.” LUBA No. 2020-095, June 11, 2021 Exhibit 123 Page 6 of 49 LOLw El1. F silt'l Scuwlun, Wu,r,reusot{ & Wyl,rrATTORNEYS AT LAW i: Equitade center, 530 cent€f st., NE, suite 400, salem, 0R 97301 | Phone 503.540.a2s2 f Fa< 503.39€.1645 | wrvw,sdrwabe.coeir Menrne O. P.lcnr, Admitted in Oregon and Washington Dlrect Lire: Salem 503-54M260; Porfland S0i-796-ZAlZ E-Maift mpageJ@schwabe. com August 11, 2008 Anne Corcoran Briggs Hearings Officer c/o Deschutes County Planning Division 1f7 NW Lafayette Avenue Bend, OR 97701 Re: Clarification/Idodification of Addendum to Fish and Wildlife Mitigation Plan Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat Our File No.: 112188/138798 Dear Ms. Briggs: This letter is provided on behalf of our client, Thornburgh Resort, to confirm ' modifications to the Thornburgh Fish and Wildlife Mitigation Plan in response to comments from the Oregon Department cfFish and ri/ildlife (ODFW), and to respond to comments received during the public hearing process about the possible need for additional mitigation on Whychus Cteek. Modification of Mitigation PIan: Following Thornburgh's submission of its Addendurn Relating to Ground Water W'ithdrawals in April, 2008 f'Addendum'), ODFW requested modification of the plan to include removal of two existing dams/impoundment struchres on Deep Canyon Creek. The April Addendum described plans for removing only one dam in connection with acquisition of the water rights from Big Falls Ranch for mitigation purposes. Iu reviewing and commenting on the Addendum, ODFW requested that Thornburgh seek authorization to remove a second dam located just upstrearn of the Big Falls Ranch dam, on property owned by other parties. During the public hearing process on Thomburgh's Final Master Plan, Thornburgh indicated its willingness to remove the second dam as part of its Fish and Wildlife Mitigation Plan. This letter coafinns that intention and so modifies the Addendum. Thornburgh is also submitting into the hearing record documentation of its agreement with the owners of the second darn to authorize the dam removal. Porlland, OR 503.222.9981 j Salm .-\p "^^540.4262 | Bend, OR 541.749.4044 Seatde,WA 2W.622j711 | Vancower,Wd cti'.;,o94.7551 I Washington,OC ZOe.+ea,ag[tUBA NO, 20I5-I07 LUBA 00378 ,t PD)Ul I 2 I 88/l 38798A40p/2841 617.3 fasurw {4', /',.9LUBA 2019-136 AMENDED RECORD - Page 0983 Exhibit 123 Page 7 of 49 Anne Corcoran Briggs August 11, 2008 Page 2 Possible Additional Modification Retating to Mitigation on Whychus Creek: During the hearing process, much attention was devoted to asserted impacts to Whychus Creek. The Yinger Report indicates a potential annual reduction of 106 acre-flet of flow in Whychus Creek (assuming 100% consumptive use) as a result of the proposed new glound water development for Thomburgh. Although Thornturgh disagrees with this contention - as described in detail other materials we have submitted for the record - Thornburgh does not want to be caught short if you determine that additional mitigation is required for possible impacts to Whychus Creek. Therefore, we are providing evidence to d.emonstrate that it would be feasible for Thomburgh to provide additional flow of 106 acre-feet per year in Whychus Creek, ifneeded to meet the county approval standard. This would be in addition to the amount of mitigation water already described in Thornburgh's Addendum. 'W'e have submitted into the record a leffer from Marc Thalacker, Manager of the Three Sisters ftrigation District, describing a proposed conservation project by the district that is expected to generate up to 500 acre-feet of water that will be protected as instream flow. This will be the final stage of a multi-phased project by the district that has already dennonstrated proven results in restoring stream flow in Whychus Creek by reducing irrigation diversions. Mr. Thalacker's letter confirms that Thornburgh could participate in this effort byproviding funding to offset the creation of 106-acre feet of water for instream flow through the consoryation project. Thornburgh strongly believes that all potential impacts to surface water resources and fish habitat are akeady completely mitigated under the terms and conditions of Thornburgh's water right approval, coupled with the additional measures described in the Addendum (as modified above by the commitrnent to remove the second dam on Deep Canyon Creek). Acquiring additional flow mitigation will be very costly - approximately $300,000 - and this offer is being made solely to preclude the possibilify of application denial on the basis of a finding that the mitigation Thornburgh has already proposed is insuffrcient. If you are persuaded that additional mitigation is required for impacts specific to Whychus Creek in order to meet the county approval standard, Thomburgh can provide such mitigation by participating in the Three Sisters Imigation District project. Sincerely, Martha O. Pagel MOP:kdo .,.-:- LUBA NO. 2015-IO7 LUBA ffiUU3fi)D 00379PD)Vt I 2 I 88/l 38798,ft40p/284 I 637.3 SM'LUBA 2019-136 AMENDED RECORD - Page 0984 Exhibit 123 Page 8 of 49 s ! it "J Oregon Water Regources Department Water Rigfrts Division Water Rights APPlication Number G-15395 ilEegtvEt)Final Order Incorporat,iug $ettlemeut Agraement lt,tAR 2 S Z00iIlearing and Appeal Righto und,er Lhe provrsions of oRS 53?.1-?0 and oRS s37.622, rhe:iHii%g['flson&wtati may request a contested case hearing by submittirrg informat,ionrequired for a protest under ORS 53?.L53(6) or oRS 53'7.62L('1l. tothe Department within 14 days after t.he date of mailing of thieorder ae shown below. If a contested case hearing is regueeted,the Department musl schedule one. In the conEesEed case hearing, however, only Lhose iseuee based on the modificat,ions eo the proposed final order listed below may be addreesed. ORS 536.075 allows for additional appeal rights for other than contested case. rhis ie a final order in other than a contestedcase. Thie order is subject, to judicial review under ORS l-83.484.l\ny petition for judicial review of this order must be filed within the 60. day time period specified by oRS rS3.484(2). This statemenb of judicial review rights does not create a right tojudicial review of this order, if judicial review is otherwlseprecluded by 1aw. Where no changes have been made to a ProposedFinal Order on a water right application and no protests hawe beenfiled duri.ng the protest period, t,he final order is not subject Lojudicial review. AppTieation History On February 9, 2005, TIIORNBUReII UtfIJIrI GROUP, LLC. submitted anappllcaCion to the Departrnent for a water use perrnit. The Department, issued a Proposed Flnal Order on JuIy 25, 2006. Theprotest, period closed $eptember 8, ZCIO6- As requlred by OAR 690-505-05i.55, the applicant must submit proposed mitigatlon that meet,a th€ requirements of OAR 690-505- 0510 (2) - (5) . Pursuant to OAR 690.505-0620, a permit shalL not beiseued unt,il the applicanE provides documentary evidence thaEmiLigation water, in an amount satisfying t,he mit igationobligation, is legally protected instream. The applicant submitted a mitigation proposal to provide 1197.0acre feet of mibigat,ion water in the General Zone of Inpact on anincremental basis. On September 8, 2006, WaterWatch of Oregon, Inc., ("WaterWat,chn) submitted a proEesE, against t,he Proposed Final Order. As of March 22, 2007, Wat,erWatch, the applicant, and OWRD entered LUBA NO. 2015-107 LUBA *Eoct-1301 '11 ,# -..h..t " .,f o2712 LUBA 2019-136 AMENDED RECORD - Page 1007 Exhibit 123 Page 9 of 49 .i i into a Set,tleqent, Agreement under which the igsues raised in the protesE were fully resolved with regard to this application, A copyof t,he Set,tlernent Agreement, ie atbached hereto and by Ehisreference incorporated herein. On i'tarch 22, 2AO7, Lhe applicant, through its agent, Martha O.Pagel, of Schwabe, williamson and Wyatt, subrnitted a revised incremental mitigation plan refleceing the termr of the Settlemenl Agreement,. Purguant to the Eerme of the Set,Llernent, Agrreement,. a water rightperrnit may be issued for up to 2,129 acre-feet per year of waEerfor quasi*municipal use, as follows: TASLE I Egtlmetcd Fall Bulld-out Watar Nccdr for Prdlnriuuy Plrnnlng Poal Flow B.rtc cFs Annsrl Yohrao Mlrlgr60n Obllgrtlor 5 St rter Urc TOTALS 9.t7 2,L29 tl 115{ rf Pursuant to the Settlernent Agreement, consuqptive use, and therelated rn:itigation obligation for eaeh component of bhe quasi- municipal use is calculated as follows: Golf Course lrrigation: During the first year of irrigation for each of the t,hree proposed go3.f coursea, applicant may uee up to3.0 acre-feet per acre so long as the toLal volume of r*at.erapplied in any given year does not exceed the maximum vol-umeauthorized under the permit or the applicable approved ptrase of development under an incremental development p1an. After thefirst year of irrigation, Lhe permanent, anrrual duty for golf courae irrigation shall be reduced to 2.24 acre-feet per acre. Consumptive use and the mitigation obligation shall be calculated aL lhe rate of 9Ot of the maximum perTrunent duty. St,andard Irrigati.on: The duty for standard irrigation shall be3.0 acre-feet per acre, The consulrptive uee and rnitigaEionobligation eha1l be calculated at a rate of 60t of the maximusrpelinanent duty. Reeenroir Maintenance: The consumptlve use and mitigationobligabion for reservoir mainEenance shall be calculated at therate of 100& of Uhe annual evaporation rat,e which is eet,ablished LUBA NO. 2015-107 LUBA #WF.-ffig o271s l-2n 195 rl l.ao 2lti tI 2.lg 971 tl ,.3 LUBA 2019-136 AMENDED RECORD - Page 1008 Exhibit 123 Page 10 of 49 l aE ?.66 acre-feet per year. Other Quasi-Municipal: ihe consumptive use and mit,igationobligation for all other quasi-rm"rnicipal use under the permit shal1 be calculated at the rate of 40t of the maximum annual volume authorlzed under the permit. At any t,ime prior to iseuance of t,he permit, applicant shall have the option to modify bhe total annual volume of water authorizedfor any component of the guael-municipal use by submitting a rbvised Incremental Development Plan, provided that themodLfication doee not increase the total arrnual volume of water authorized under the Final Order. If Applicant, exercises thisoption, the water right permit and the mitigation obligat,ionshall be revised !o reflect tho *-l.ified volurnee of waEer, based on Ehe consurnptive use rates described above, as applicable. The permiE shal1 include a condit,ion reguiring measureilEnt andreporting of water use, ineluding a break-down for golf courseirrigaEioh, along with a]l other terms and eondit,ions describedin Lhe Final Order. The mitigation conditi-ons, along with other conditions in ttre attached draft permit, eha1l be contained 1n the permit, whenissued, for Application G-L6385. Mitlgat,ion Obligation :1,356.0 acre-feet in. Lhe Generalzone af Impact (Anywhere i-n Deechutes Basln above the Madrasgage, which is located belovr take Billy Chinook.) Mitigation Source;Mitigation Credit.s or a MitigationProject, in accordance viit,h Lhe incremental developmenr plan on fileu/ith the DepartmenE, meeting the requiremente of. OAR Chapber 690,Divislon 505 (Deschutee Ground WaLerMit,igation Rules) . Mitigation water must be IegalIy protected instream forinstream use within the General River Zone of ImpacL and committ,ed for the.life of the permit and subsequentcerEificate(s). Regulat,ion of the use and/or cancellation of Lhe permi!, or subsequent certificate (s) , will occur if therequired mitigation ie not maintained. The perrnittee ehall provide addit.ionaL mit,igation if the Department determines t,hat average annual consumptive uee ofthe subJect appropriation has increased beyond the originallyrnitigated amount. If mitigation ie from a secondary right for ELored water froma sEorage project not owned or operated by the permittee, the use of water under Lhis right ie subject to the terms and !f i,-3 LUBA NO. 2015-t07 LUBAffi42tm o2714 LUBA 2019-136 AMENDED RECORD - Page 1009 Exhibit 123 Page 11 of 49 at! conditions of a valid contract. or a satisfactoryrepLacement, with the owner/operaEijr of the storag'e project,a copy of which must be on flle in the records of the WaterResources Departrftent prior eo use of water Fallure to comply with these mitsigation conditions shallresult in the Department regulating Ltre ground waLer permit,or eubeeguent cerLificate(e), proposing to deny any .permitextension applicaEion for the ground water permit, andproposing to cancel the ground water permit, or subsequentcert,if icaEe (s) . The following shall aleo apply to the irrigation cowq)onent ofof this applicat,ion: The amount of wat,er used for irrigatlon under this right,together with the arnount secured r:nder any other rightexisting for the same lands, is limited to a diverslon of ONE-EIGHTIETH of one cubic foot per second and 3.0 acre-feetfor each acre irrigated during the irrigation season of eachyear. The pennanent duL.y of water uge for golf courgeirrigation under Lhie right ie further limiued !o a diversionof 2.24 acre-feet for each acre irrigat,ed durlng theirrigation season of each year, as provided herein, Order Application G-16385 therefore ie approved with the abowemodificaEions to the Proposed Finat Order, and agconditioned. will ensure the preservat,ion of the publicwelfare, safety and health. A permlt coneietent with the attached draft. permiE shall beisgued only upon submleeion of documentary evidencedemonstrati.ng that the appropriate amount of mitigatsionwater {credits or rnit,igali-on project), or an alternate amountof mitigation in conjunetion with a npdified incrementalmitigation development plaF, meeting the reguirements of oAR690-505-05L0(2)-(5), within the General Zone of Impact, hasbeen obtained and Eatiefy the first Etage of incremental development. Thie flnal, order is issued approwing application G-1639scont,ingent upon tkre regulred first increment of nr-itigation be:,ng provided before a permit may be issued. Thie finalorder shall e>qgire 5 years after issuance unless the requiredfirst incrernent of mitigation 1s provided. OAR 690-505- 0620 (2) . Applicat.ion G-L5385 is rherefore approved as providedherein. Upon paymene of outstanding fees in the anpunt of $250.00, and upon submission of land use approval for theproposed user a permi.t, shalI be lssued authorizing the It' *F LUBA NO. 2015-107 LUBA #qffie{a$ I 02715LUBA 2019-136 AMENDED RECORD - Page 1010 Exhibit 123 Page 12 of 49 ..,'.'.. 'l proposed water uge, Failure to mee,t, thie requlrement, wiehin 60 days from the date of this Final Order may result in the propoged rejection of the application. If you need to request. additional time, your wricten request should be received in the Salem office of the Department'within 60 days of Ehis F,inal order. Tbe DeparEment vrill evaluate the request and deEermine rrlhether or . not t'he reguest'may be approved DATED Mareh 22, 2097 uvtL Wat French, Administrator A Rights and Adjudicatione Di.visionforPhillip C. Ward, Director Qregon WaLer Resources Department 'l LUBANO.2015-107 lusa #he4ab2 o2716LUBA 2019-136 AMENDED RECORD - Page 1011 Exhibit 123 Page 13 of 49 247-18-000386-TP/454-SP/592-MA Hearings Officer Decision HEARINGS OFFICER DECISION FILE NUMBER: 247-18-000386-TP / 454-SP / 592-MA APPLICANT/OWNER: Central Land and Cattle Company, LLC ATTORNEY: Liz Fancher REQUEST: Tentative Plan (TP) for Phase A-1 of the Thornburgh Destination Resort subdivision, Site Plan Review (SP) for associated utility facilities including a well, well house, pump house, reservoir, and interim subsurface sewage disposal system, and a Modification of Application (MA) for the Site Plan Review. STAFF CONTACT: Jacob Ripper, Senior Planner HEARINGS OFFICER: Dan R. Olsen This decision adopts and incorporates the Staff Report with minor edits and except as noted by “Hearings Officer”. I. BASIC FINDINGS: A. LOCATION: The proposed Thornburgh Destination Resort is large and is comprised of numerous tax lots. The lots which are subject to this application are in the southern portion of the destination resort are denoted with a (*) below. Map Number & Tax Lot Address 15-12-5000 11800 Eagle Crest Blvd. 15-12-5001 11810 Eagle Crest Blvd. 15-12-5002 11820 Eagle Crest Blvd. 15-12-7700* 67205 Cline Falls Rd.* 15-12-7701 67705 Cline Falls Rd. 15-12-7800* 67555 Cline Falls Rd.* 15-12-7801* 67525 Cline Falls Rd.* 15-12-7900* 67545 Cline Falls Rd.* 15-12-8000 67400 Barr Rd. B. LOT OF RECORD: The property subject to these applications is comprised of multiple lots of record. See file numbers LR-91-56 (tax lot 7800, one lot of record), LR-98-44 (tax lot 7900, one lot of record), and 247-14-000450-LR (tax lot 7700, four lots of record). Mailing Date: Tuesday, October 30, 2018 LUBA 2018-140 Record - Page 0041LUBA 2019-136 AMENDED RECORD - Page 1114 PDF 492Exhibit 123 Page 14 of 49 The point of diversion for the Big Falls water rights is located at the confluence of the creek and the Deschutes River as shown on Figure 3. When the initial 175 acres of irrigation water rights are transferred to instream flow for Phase A mitigation, up to 2.07 cubic feet per second of flow that would otherwise be diverted from the creek for irrigation will remain in the creek as an instream water right. This additional flow will be protected instream from the authorized diversion point on the creek to the Deschutes River near River Mile 132.8, and downstream in the Deschutes River to Lake Billy Chinook near River Mile 120, a distance of nearly 13 miles. 2.OWRD Mitigation for Phase B/Full Build-Out Mitigation water for Phase B will come first from the transfer of the remainder of the Big Falls Ranch water rights. The locations of the Big Falls Ranch water rights for Phase B mitigation are shown on Figure 4. The remaining mitigation water will come primarily from water rights acquired within the COID that will be converted into mitigation credit through permanent instream transfers. The COID currently serves a total of approximately 45,000 acres of land. A significant portion of this land is expected to become converted to urban land uses in the next three to five years. Under the Ground Water Patron Policy, COID Patrons are given preference for the acquisition of water rights associated with these lands, before such water rights could be transferred outside of the District. As a result, Thornburgh is in a position to gain priority access to water rights available within COID for mitigation purposes. When such rights are acquired and transferred instream, they will be protected as instream flow rights from the COID diversion on the Deschutes River at Bend, downstream to Lake Billy Chinook. The Resort also has an agreement to purchase land with an additional 100.7 acres of water rights outside of the COID (McCabe Family Trust property.) Transfer of these rights to instream use would result in permanent protection under an instream flow right in the Deschutes River from the river River Mile 140 downstream to Lake Billy Chinook, a distance of about 20 miles. River Mile 140 is about 6.5 miles upstream from Lower Bridge. The location of the mitigation area is shown on Figure 5. Thornburgh does not plan to provide any of its required mitigation for Phase A or B through canal lining or piping projects that save water through increased efficiency of water use. Although such conservation measures can be beneficial by reducing current diversions of surface waters, the practice has been questioned as a means of providing mitigation water to offset new ground water pumping. In recognition of these concerns, Thornburgh will not utilize this option. E.Summary of OWRD Mitigation Plan Implementation of Thornburgh's water right mitigation plan would result in a total of 1,356 AF annual mitigation at full build-out. Approximately 836.82 AF,per year and 5.5 cfs of flow during the irrigation season would come from Deep Canyon Creek as a result of transferring the Big Falls Ranch water rights to instream flow rights. The remaining 6 LUBA 2018-140 Record - Page 0663LUBA 2019-136 AMENDED RECORD - Page 1736 Exhibit 123 Page 15 of 49 519.18 AF per year is expected to come from upstream sources through the COID water rights that would be acquired and transferred instream, or in combination with the McCabe water rights. These mitigation measures, as required by OWRD, are specifically designed to offset impacts of ground water pumping. The initial Big Falls transfer of 175 acres is projected to result in 315 AF per year of mitigation water. This water, originating from springs, will flow to the Deschutes River. Transfer of the remaining 289.9 acres under the Big Falls water rights, as mitigation for Phase B, will generate an additional 521.82 AF per year from Deep Canyon Creek flow that otherwise would be diverted for irrigation use. This water, along with that resulting from the transfer of 175 acres for Phase A mitigation, will be protected as instream flow from approximately River Mile 132.8 downstream to Lake Billy Chinook, near River Mile 120. The Big Falls mitigation water offers the additional temperature benefit of providing relatively cool waters from Deep Canyon Creek. Mitigation transfers for remaining Resort needs (approximately 288.5 acres of water rights generating a total of at least 519.18 AF per year of mitigation water) will involve rights from the COID and the other sources under purchase options and agreements with the Resort. The instream flow created by these transfers is expected to be protected instream from the COID diversion at Bend, near River Mile 166.5, to Lake Billy Chinook near River Mile 120. Figure 5 shows the distribution of mitigation flows between the COID diversion at Bend and Lake Billy Chinook. IV.Fish Habitat Potentially Affected by Ground Water Use During the consultation process, ODFW identified two specific concerns with respect to potential impacts of ground water pumping on fish habitat: First, the potential for flow reduction due to hydraulic connection that could impact flows necessary for fish and wildlife resources in the Deschutes River system; and second, the potential for an increase in water temperature as a result of flow reductions from ground water pumping. Six species of fish were identified that could potentially be impacted: Redband Trout, Bull Trout, Brown Trout, Mountain Whitefish, Summer Steelhead and Spring Chinook. The general distribution of these fish species is shown on Figure 6. In its consultation with Thornburgh regarding these issues, ODFW recognized that the OWRD ground water mitigation program was specifically designed to identify and mitigate for the impacts of flow reduction as a result of new ground water pumping in the basin. Although the OWRD rules and USGS study on which the rules are based do not directly address temperature issues, ODFW also recognized that with the flow replacement required under OWRD rules the potential impact to temperature as a result of the Thornburgh project -or any similar individual project -is expected to be negligible... However, ODFW acknowledged a concern about the potential for cumulative impacts from on-going ground water development in the basin, over time. 7 LUBA 2018-140 Record - Page 0664LUBA 2019-136 AMENDED RECORD - Page 1737 Exhibit 123 Page 16 of 49 In early correspondence on this issue, ODFW identified concerns about impacts on cold water springs and seeps in the Whychus Creek sub-basin as a result of Thornburgh ground water use, and indicated that the potentially affected resources would be classified as "Habitat Category 1" under the ODFW Fish and Wildlife Habitat Mitigation Policy ("ODFW Mitigation Policy", OAR Chapter 635, Division 414.) (Letter from Glen Ardt to Thornburgh, dated January 31, 2008.) Under the ODFW Mitigation Policy, Habitat Category 1 means the affected habitat is irreplaceable. In response to the letter, Thornburgh provided additional information to ODFW documenting the OWRD findings regarding the location of impact from Thornburgh wells in the Main Stem Deschutes River. Additionally, ODFW met with staff from OWRD and the Department of Environmental Quality concerning the potential Thornburgh impacts. As a result of this process and further internal review, ODFW revised its preliminary determination regarding the type of habitat potentially affected by the Resort, concluding the habitat would be classified as Habitat Category 2, not Habitat Category 1. This conclusion was based on ODFW's determination that temperature impacts to stream flow, if present, can be mitigated with appropriate actions. As used in the ODFW Mitigation Policy, "Habitat Category 2" describes essential habitat for a fish or wildlife species. Mitigation goals for this category of habitat are no net loss of either habitat quantity or quality and to provide a net benefit of habitat quantity or quality. OAR 635-414-0025(2). Based on input from ODFW during the consultation process, Thornburgh has identified the following mitigation and enhancement measures designed to ensure no net loss of habitat quantity or quality and to provide a net benefit for fish habitat. The measures reflect findings by OWRD that the Thornburgh project is expected to affect flow in the Main Stem Deschutes River. Given that finding, NCI determined the potential temperature impacts attributable to the project are expected to be slight and below levels that can be effectively measured. V.Mitigation and Enhancement Measures The proposed mitigation measures identified in consultation with ODFW are designed to ensure no net loss of habitat quantity or quality and net benefits to the resource: (A) compliance with OWRD mitigation requirements; (8) inclusion of the Big Falls Ranch water rights as part of the OWRD mitigation program to provide additional cold water benefits; (C) removal of an existing instream irrigation pond in connection with the transfer of Big Falls water rights; (D) elimination of existing ground water uses on the Resort property; and (E) a measure to provide $10,000 in funding to complete an on going thermal modeling project on Whychus Creek or a suitable alternative enhancement project. Collectively, these measures will address ODFW mitigation policy requirements and ensure compliance with the County land use standard. A.Compliance with OWRD Mitigation Requirements 8 LUBA 2018-140 Record - Page 0665LUBA 2019-136 AMENDED RECORD - Page 1738 PDF 1116Exhibit 123 Page 17 of 49 S'I'ATE OF OREGON COUNTY OF DESCHUTES PERMIT TO APPROPRIATE THE PUBLIC WATERS THIS PERMIT IS HEREBY ISSUED TQ 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 . 2 8 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 DATE OF PRIORITY: FEBRUARY 9, 2005 WELL LOCATIONS: WELL 1: SE% NW%, SECTION 28, T15S, Rl2E, W.M.; 1800 FEET SOUTH AND 2335 FEET EAST FROM NW CORNER, SECTION 28 WELL 2: SE~ NW~. SECTION 29, TlSS, R12E, W.M.; 1655 FEET SOUTH AND 2750 FEET WEST FROM NE CORNER, SECTION 29 WELL 3: SW~ SW 1,4, SECTION 21, T15S, R12E, W.M.; 1100 FEET NORTH AND 400 FEET EAST FROM SW CORNER, SECTION 21 WELL 4: NE 1A SE 14, SECTION 20, ·r15S, R12E, W.M. i 2885 FEET SOUTH AND 750 FEET WEST FROM NE CORNER, SECTION 20 WELL 5: SW~ NE~. SECTION 20, T15S, R12E, W.M.; 2590 FEET SOUTH AND 1860 FEET WEST FROM NE CORNER, SECTION 20 WELL 6: SE~ NW~' SECTION 17, Tl5S, R12E, W.M.; 2375 FEET SOUTH AND 3615 FEET WEST FROM NE CORNER, SECTION 17 Application G-16385 Water Resources Department PERMIT G-17036 EXHIBITS LUBA 2018-140 Record - Page 1626LUBA 2019-136 AMENDED RECORD - Page 2699 Exhibit 123 Page 18 of 49 Page 2 THE PLACE OF USE IS WITHIN THE BOUNDARIES OF THE THORNBURGH RESORT, BEING WI'I'HIN SECTIONS 17 I 20 I 21, 28 I 29 I AND 3 0; TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M. Th e amount o f water u sed f o r i rri gation und e r thi s right, together wi t h t he amount s ecu r ed under any o ther right existing f o r the same land s , i s l i mite d to a diversion of ONE-E I GHTIETH of one cubic foot per s ec ond and 3 .0 acre-feet for each acr e irrigat ed during t he i r rigati on s e ason o f eaab y ear . The amount of water us ed for golf cour s e i rrigation under thi s right is further l i mited to a di version of 2 .24 acre-feet for each acre irr i gat ed d uring t h e irr igation sea son 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 perrnittee to report general water use information, including the place and nature of use of water under the permit. B. 'I'he permi ttee shall allow the waterrnaster 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 appropria.tion 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 LUBA 2018-140 Record - Page 1627LUBA 2019-136 AMENDED RECORD - Page 2700 Exhibit 123 Page 19 of 49 ' Page 3 Mitigation source: 111itigation 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, Di.vision 505 (Deschutes Ground Water Mitigation Rules} and OAR Chapter 690 Division 522, within the General Zone of Impact. Mitigation water must be legally protected ins l:ream 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 an file in the records of the Water Resources Department prior to use of water. The permit tee shall provide additional mi tiga ti on 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 not increase the rate or amount of water diversion before increasing the corresponding mitigation. The permittee shall seek and receive Department approval prior to changing the incremental permit development plan and related incremental mitigation. The permittee shall report to the Department the progress of implementing the incremental permit development plan and related mitigation 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. 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. Application G-16385 Water Resources Department PERMIT G-17036 LUBA 2018-140 Record - Page 1628LUBA 2019-136 AMENDED RECORD - Page 2701 Exhibit 123 Page 20 of 49 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 an y 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 t .o jointly develop plans to mitigate interferences. The we l ls shall be constructed in accordance with the General Standards for the Const.ruction 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 file d by such wa ter users with the wat.ermaster, 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- 21'7 . The Director may require water-level or pump-t est 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 LUBA 2018-140 Record - Page 1629LUBA 2019-136 AMENDED RECORD - Page 2702 Exhibit 123 Page 21 of 49 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 pennitted 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 permi ttee 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 /.~tt:r~ for Phillip C. Ward, Director Water Resources Department Application G-16385 Basin 5 Water Resources Department Volume 1 DESCHUTES R MISC PERMIT G-17036 11 LUBA 2018-140 Record - Page 1630LUBA 2019-136 AMENDED RECORD - Page 2703 Exhibit 123 Page 22 of 49 Exhibit F Exhibit 123 Page 23 of 49 Exhibit F Exhibit 123 Page 24 of 49 Exhibit GExhibit 123 Page 25 of 49 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER THORNBURGH RESORT COMPANY FINAL MASTER PLAN FILE NUMBER: APPLICANT! OWNER: M-07-2; MA -08-6 Thornburgh Resort Company PO Box 264 Bend, OR 97702 APPLICANT'S Schwabe, Williamson & Wyatt, PC REPRESENTATIVE: Peter Livingston, Attorney at Law 1211 SW Fifth Avenue, Suite 1600 Portland, OR 97204 REQUEST: The Applicant requests approval of a Final Master Plan (FMP) and a Modification of Application (MA) for a 1,970 -acre Destination Resort located near Cline Buttes, west of Redmond. STAFF CONTACT: Ruth Herzer, Associate Planner HEARING DATES: DECISION ISSUED: June 17, 2008, continued to July 15, 2008 Record held open for written submittals until September 11, 2008 Final written legal argument submitted September 17, 2008 October 6, 2008 I. APPLICABLE CRITERIA: Title 18, Deschutes County Code, County Zoning Ordinance Chapter 18.113.090, .100, .110 Title 22, Deschutes County Land Use Procedures Ordinance Title 23, The Deschutes County Comprehensive Plan CU -05-20 CMP, issued by the Board of County Commissioners on May 11, 2006, and revised on remand from the Oregon Court of Appeals on April 9, 2008 Oregon Revised Statutes (ORS) Chapter 197.435 to 197.467 II. BASIC FINDINGS: A. LOCATION: The subject property consists of approximately 1,970 acres of land located west of Redmond, Oregon, on the south and west portions of a geologic feature known as Cline Buttes. The property is bordered on three sides by BLM land, and is also in close proximity to Eagle Crest, another destination resort development. The subject property is identified on County Assessor's Index Map 15-12, as tax lots 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900 and 8000.' 1 The applicant also has leased inholding parcels from the Department of State Lands for buffer and access roads. See August 12, 2008 rebuttal testimony, Ex. F-2. Exhibit HExhibit 123 Page 26 of 49 B. ZONING: The subject properties are zoned Exclusive Farm Use (EFU-TRB). The subject properties are also mapped within the Destination Resort (DR) overlay zone for Deschutes County. C. SITE DESCRIPTION: The resort site is located on an approximately 1,970 -acre parcel located adjacent to Cline Buttes. This parcel was formerly a large ranch and has a varied terrain which includes rock outcroppings and drainage washes. On the upper portion of the property there are panoramic views of the Cascade Mountains. Vegetation consists of Juniper woodland with many old growth juniper trees. Three dwellings are located on the property along with the associated roads/driveways. Access to these dwellings is via Cline Falls Highway. D. SURROUNDING LAND USES: The site is surrounded by public land. Over seventy five percent of surrounding property is managed by the US Bureau of Land Management BLM). A central section is managed by the Oregon Department of State Lands (DSL). The applicant has acquired lease rights for the DSL property. Eagle Crest destination resort is located close to the northern portion of the proposed development. E. PROPOSAL: The applicant is requesting Final Master Plan (FMP) approval for the 1,970 -acre destination resort. The applicant has amended the Final Master Plan application to include the Wildlife Mitigation Plan as required by the remand decisions from the Court of Appeals and the Land Use Board of Appeals (LUBA). F. LAND USE HISTORY: CONCEPTUAL MASTER PLAN: The Conceptual Master Plan application was approved by the Board of County Commissioners (BOCC) on May 11, 2006 (file no. CU -05-20). The decision was appealed to LUBA and portions of that decision were further appealed to the Court of Appeals. Gould v. Deschutes County, 54 Or LUBA 205 (Gould I), rev'd and remanded 216 Or App 150, 171 P3d 1017 (Gould II.) These courts remanded the decision back to Deschutes County. The BOCC held a remand hearing on March 19, 2008. On April 9, 2008, the BOCC signed a decision that adopted much of the initial decision, and included additional findings and conditions. (Gould Ill.) The BOCC decision on remand was appealed to LUBA, which affirmed on September 11, 2008 Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2008-068, September 11, 2008), Court of Appeals review pending (Gould IV.) FINAL MASTER PLAN: An application for Final Master Plan approval was submitted on August 1, 2007 (file no. M-07-2). The application was deemed complete and accepted for review on August 31, 2007. On September 18, 2007 the applicant tolled the deadline for a final decision for 45 days. On December 14, 2008, the applicant again tolled the deadline for 45 days. A hearing was scheduled for February 12, 2008, and interested parties were notified of the hearing on January 4, 2008. The February 12, 2008 hearing was canceled at the applicant's request. In response to the Gould 111 decision, the applicant submitted a Modification of Application on April 21, 2008 which re -started the 150 day clock. This application was M-07-2; MA -08-6 Exhibit HExhibit 123 Page 27 of 49 27. Road width shall be consistent with the requirements set forth in the County's subdivision ordinance, DCC Chapter 17.36. 28. See conditions #38 and #39. 29. Applicant shall abide at all times with the MOU with ODOT, regarding required improvements and contributions to improvements on ODOT administered roadways (Agreement Number 22759, dated 10/10/05). 30. Satisfied. 31. All exterior lighting must comply with the Deschutes County Covered Outdoor Lighting Ordinance per Section 15.10 of Title 15 of the DCC. 32. No permission to install helicopter landing zone (helipad) at the Resort is given or implied by this decision. 33. The Resort shall, in the first phase, provide for the following: A. At least 150 separate rentable units for visitor -oriented lodging. B. Visitor -oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. C. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 10.113.060 (A) (1) and (2) shall be at least $2,000,000 (in 1984 dollars). D. At least $2,000,000 (in 1984 dollars) shall be spent on developed residential facilities. E. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots. 34. Where construction disturbs native vegetation in open space areas that are to be retained in a substantially natural condition, Applicant shall restore the native vegetation. This requirement shall not apply to land that is improved for recreational uses, such as golf courses, hiking or nature trails or equestrian or bicycle paths. 35. The contract with the owners of units that will be used for overnight lodging by the general public shall contain language to the following effect: "[Unit Owner] shall make the unit available to [Thornburgh Resort/booking agent] for overnight rental use by the general public at least 45 weeks per calendar year through a central reservation and check-in service." 36. Applicant shall coordinate with the Sheriffs Office and its designated representative to address all public safety needs associated with the resort and the development process. 37. Satisfied. M-07-2; MA -08-6 29 Exhibit HExhibit 123 Page 28 of 49 38. The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of off-site mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek. 39. The applicant shall provide funding to complete a conservation projectby the Three Sisters Irrigation District to restore 106 acre-feet of instream water to mitigate potential increase in stream temperatures in Whychus Creek. The applicant shall provide a copy of an agreement with the irrigation district detailing funding agreement prior to the completion of Phase A. Dated this 6th day of October, 2008. Mailed this day of October, 2008. OriAnneCorcoranggsHearings'Officer THIS DECISION IS FINAL UNLESS APPEALED IN ACCORDANCE WITH THE PROVISIONS OF DOG TITLE 22. M-07-2; MA -08-6 30 Exhibit HExhibit 123 Page 29 of 49 Exhibit I Exhibit 123 Page 30 of 49 Exhibit I Exhibit 123 Page 31 of 49 Exhibit I Exhibit 123 Page 32 of 49 Exhibit I Exhibit 123 Page 33 of 49 Exhibit I Exhibit 123 Page 34 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.1 79 Or LUBA 561 (Or Luba), 2019 WL 11505037 Land Use Board of Appeals State of Oregon ANNUNZIATA GOULD, Petitioner, vs. DESCHUTES COUNTY, Respondent, and CENTRAL LAND & CATTLE CO., LLC, Intervenor-Respondent. LUBA No. 2018-140 REMANDED June 21, 2019 Appeal from Deschutes County. **1 Jeffrey L. Kleinman, Portland, filed a petition for review and argued on behalf of petitioner. No appearance by Deschutes County. Liz Fancher, Bend, filed a reply brief and argued on behalf of intervenor-respondent. Exhibit 123 Page 35 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.2 ZAMUDIO, Board Member; RUDD, Board Member, participated in the decision. RYAN, Board Chair, did not participate in the decision. 1. 1.1.1 Administrative Law - Interpretation of Law - Generally. 30.4 Zoning Ordinances - Interpretation. 31.3.12 Permits - Particular Uses - Destination Resorts. The fact that a tentative plan for a destination resort proposes a different pace of development than the final master plan, such as by sub-phasing development, does not materially affect the findings of fact on which the final master plan approval was based so as to constitute a “substantial change” to the final master plan, thereby requiring a new application, where neither the final master plan nor applicable regulations require that all development authorized in the first phase of the final master plan occurs at the same time. 2. 1.1.1 Administrative Law - Interpretation of Law - Generally. 30.4 Zoning Ordinances - Interpretation. *562 31.3.12 Permits - Particular Uses - Destination Resorts. Where the final master plan for a destination resort includes a mitigation plan requiring the applicant to replace the water consumed by the resort with a quantity and quality of water that will maintain fish habitat in an impacted stream, the fact that the tentative plan for one phase of development modifies the timing, but not the overall amount, of the mitigation water required to be provided does not materially affect the findings of fact on which the final master plan approval was based so as to constitute a “substantial change” to the final master plan, thereby requiring a new application, where there is no evidence that such modification will impact the efficacy of mitigation and there is evidence that such modification will result in more gradual, spread out impacts. 3. 25.3 Local Government Procedures - Compliance with Statutes - Hearings. 25.5 Local Government Procedures - Delegation of Authority. 31.3.12 Permits - Particular Uses - Destination Resorts. Where a local code provision requires applicants for destination resorts to demonstrate that “[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource,” where a proposed resort's consumptive use of groundwater is anticipated to impact the quantity and quality of water in an offsite stream, and where the applicant's final master plan includes a mitigation plan requiring the applicant to replace the water consumed by the resort with a quantity and quality of water that will maintain fish habitat in the stream, the local government may not impose a condition of approval allowing the applicant to demonstrate that the source of the mitigation water provides the requisite quantity and quality of water at a later date without review or input by interested persons. **2 *563 Opinion by Zamudio. NATURE OF THE DECISION Petitioner challenges a decision by a county hearings officer approving a tentative plan, site plan review, and site plan review application modification for phased development of a destination resort. Exhibit 123 Page 36 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.3 REPLY BRIEF Petitioner moves to file a reply brief to respond to new matters raised in the response brief filed by intervenor-respondent Central Land & Cattle Company, LLC (intervenor). Intervenor does not oppose the reply brief and it is allowed. FACTS A destination resort is a “self-contained development providing visitor-oriented accommodations and developed recreational facilities in a setting with high natural amenities.” Oregon Statewide Planning Goal 8 (Recreation); see also ORS 197.445 (providing similar destination resort definition). Local governments may plan for the siting of destination resorts on rural lands, subject to the provisions of state law. Id.; ORS 197.435 - 197.467. A destination resort may include residential dwellings, but the number of residential units is limited by the number of visitor-oriented overnight lodging units (OLUs), as explained further below. In 2006, the county approved the Thornburgh Resort conceptual master plan (CMP) and, in 2008, approved a final master plan (FMP). Those approvals were ultimately upheld after multiple rounds of appeals. This case is the eighth time that this land use dispute around the proposed Thornburgh Resort has been before this Board. We last summarized our prior cases in Gould v. Deschutes County, 78 Or LUBA 118, 119 (2018). A general summary of those prior appeals is not necessary or useful for this case. We discuss specific prior appellate decisions in our analysis of the assignments of error below. The subject property consists of approximately 1,970 acres of land zoned for exclusive farm use and mapped within the destination resort overlay zone. The property was formerly used as a large ranch and is surrounded by public land managed by the US Bureau of Land Management (BLM) and Oregon Department of State Lands. The FMP provides for phased development and fish and wildlife habitat mitigation (the mitigation plan) to offset the impacts of the resort development. *564 The resort will include residential dwellings and OLUs. Recreational amenities will include two golf clubhouses, a recreation center, a spa and fitness center, and swimming pools and associated structures. Planned visitor-oriented facilities will include restaurants, convention facilities, business center, art gallery, and cultural center. The resort will include approximately 1,293 acres of open space, (approximately 66% of the entire acreage of the resort) planned as a golf course, common areas, and buffer areas. Record 196-97. The FMP divides the development into seven phases. The first phase, Phase A, includes development of transportation infrastructure, golf course, restaurant, meeting facilities, open space, 300 residential units, and 150 OLUs, with the first 50 OLUs to be constructed before any sale of residential lots, and financial assurance (bonding) for another 100 OLUs, and implementation of the mitigation plan. Record 4. **3 As noted, the county's decision approving the FMP was ultimately affirmed after multiple rounds of appeals. In May 2018, intervenor sought approval for the first phase of development. Intervenor requested approval of a tentative plan for a portion of the approved Phase A, calling the partial subphase “Phase A-1,” which includes a tentative subdivision plat for 192 single-family residential dwelling lots, 24 single-family deed restricted OLU lots, and 13 OLU lots, together with roads, utility facilities, lots, and tracts for future resort facilities and open space. Intervenor also applied for site plan review for a well, well house, pump house, reservoir, and sewage disposal. In this decision we refer to the approvals, collectively, as the tentative plan or TP. Record 1551. The county hearings officer approved with conditions the tentative plan for Phase A-1. This appeal followed. FIRST ASSIGNMENT OF ERROR In the first assignment of error, petitioner challenges the hearings officer's decision that the tentative plan meets the requirements in the FMP and destination resort regulations for phased development of OLUs and visitor-oriented recreational facilities. Exhibit 123 Page 37 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.4 A. Overnight Lodging Units A destination resort may include residential units, limited by the number of OLUs.1 A destination resort CMP must include a mechanism to *565 ensure a minimum of 150 OLUs, and a maximum ratio of 2.5 residential units for each OLU (OLU Ratio). DCC 18.113.050(B)(21).2 The first 50 OLUs must be constructed prior to the closure of sales, rental, or lease of any residential dwelling or lot. DCC 18.113.060(A)(1)(a). At least 50 of the remaining 100 required OLUs must be constructed or guaranteed through surety bonding or equivalent financial assurance within five years of the close of the sale of individual lots or units, and the remaining 50 required OLUs must be constructed or guaranteed through surety bonding or equivalent financial assurance within 10 years of the close of the sale of individual lots or units. DCC 18.113.060(A)(1)(b). The maximum 2.5:1 OLU Ratio may not be exceeded at any phase of the development. DCC 18.113.060(A)(1)(b)(iv). If the resort does not phase development of the OLUs, then the required 150 OLUs must be constructed prior to the closure of sales, rental, or lease of any residential dwelling or lot. DCC 18.113.060(A)(1)(c). In the FMP phasing, Phase A involved the development of 300 residential units and 150 OLUs for a 2.0 OLU Ratio. Record 4, 61, 63. FMP Conditions of approval 21 and 33 required 50 OLUs be constructed in the first phase of development and an additional 100 OLUs be constructed or bonded.3 *566 1 The FMP provides that the approval was “based upon the submitted plan,” and that “[a]ny substantial change to the approved plan will require a new application.” Record 217. DCC 18.113.080 provides that any substantial change proposed to an approved CMP must be reviewed in the same manner as the original CMP.4 “Substantial change to an approved CMP, as used in DCC18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected.” DCC 18.113.080 (emphasis added). The hearings officer reasoned that DCC 18.113.080, which applies to changes between the CMP and FMP, provides guidance for evaluating whether the tentative plan conforms to the FMP. The hearings officer concluded that the subphasing proposed in the tentative plan did not constitute a substantial change to the FMP. Petitioner argues that Phase A-1 is not approved by the CMP and FMP, and that subphasing is a substantial change to the approved plan. **4 *567 Phase A-1 provides for division and development of 192 residential lots, division of 37 lots for approximately 110 OLUs, and bonding for approximately 40 OLUs, for a 1.28 OLU Ratio (192 RUs to 150 OLUs). Record 63. The hearings officer found that the different pace of development (subphasing) in Phase A-1 did not modify the FMP, because the FMP and applicable resort regulations do not require all development authorized in Phase A occur at the same time and that the different pace of development does not affect the material facts or compliance with relevant approval criteria. Record 63. The hearings officer observed that 50 OLUs must be constructed, and 150 total OLUs must be constructed or bonded prior to the sale of a residential lot.5 Petitioner has not established that the different pace of development in Phase A-1 alters the phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected. Under Phase A-1, no residential lot can be sold or rented until the OLU requirements are satisfied. This is consistent with the FMP and applicable regulations. The hearings officer did not misconstrue applicable law in concluding that Phase A-1 did not materially affect the FMP approval for phased development of OLUs. Petitioner argues that the decision is based on inadequate findings because no part of the plan for Phase A-1 shows how the first 50 OLUs will be constructed. Intervenor responds, and we agree, that it may obtain approval of a tentative plan without providing details about the OLU construction. The residential units may not be sold, leased, or rented until the OLUs are built and assured through financing. Intervenor states that after the tentative site plan is approved, intervenor will subsequently submit site plans that show how the *568 lots will be developed to provide the OLUs and recreational amenities. Record 1562. Exhibit 123 Page 38 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.5 Petitioner argues that the hearings officer erred in approving the tentative plan because the plan does not describe the OLU structures in sufficient detail to establish whether they qualify as OLUs as defined in DCC 18.04.030. See n 1. Petitioner argues that the proposed ownership, location, and design of the OLUs factor into whether a structure qualifies as an OLU. Intervenor responds that the county's prior CMP/FMP decision, and related appeals, resolved the OLU issue. We agree. In Gould v. Deschutes County, 54 Or LUBA 205, 232 rev'd and rem'd on other grounds, 216 Or App 150, 171 P3d 1017 (2007) (Gould CMP II), we reasoned that the resort CMP proposed construction of 50 cottages with lockout facilities (to ensure 150 separate rentable units are available within the first phase) satisfied DCC 18.113.050(B)(8), which requires “A description of the proposed order and schedule for phasing, if any, of all development including an explanation of when facilities will be provided and how they will be secured if not completed prior to closure of sale of individual lots or units[.]” Petitioner does not contend that anything in the tentative plan changes the CMP/FMP provision for OLUs, and we do not understand that it does. The hearings officer did not err by failing to require intervenor to submit detailed plans for the cottages that will provide the required OLUs. **5 Petitioner argues that the challenged decision conflicts with the decisions in a line of destination resort cases that we have referred to as the Caldera cases. See Central Oregon Landwatch v. Deschutes County, 74 Or LUBA 540 (2016) (Caldera I), rev'd and remanded, 285 Or App 267, 396 P3d 968 (2017) (Caldera II); Central Oregon Landwatch v. Deschutes County, 76 Or LUBA 6 (2017) (Caldera III). The Caldera cases concerned an expansion of an existing destination resort called Caldera Springs Resort. The existing resort included 38 single-family vacation homes with three to five bedrooms. Each bedroom has an en suite bathroom and outside entrance and could be locked off from the main cabin and the outside (lock-off rooms). The county approved the expansion, including 395 new single-family dwellings and an additional 95 OLUs. Caldera I, 74 Or LUBA at 544. On appeal, the petitioner argued that the lock-off rooms in the existing resort could not be counted as separate OLUs. The intervenor responded that argument was an impermissible collateral attack on the existing resort approval. We reasoned that the petitioner's argument that the existing lock-off rooms that were part of the prior-approved resort could not be counted to satisfy the overall OLU requirement for the expansion was not an impermissible collateral attack on a prior decision because the challenged *569 expansion approval criteria, DCC 18.113.025(B), required the county to determine that the entire resort facility, including the existing facilities, satisfied all the requirements for a destination resort. Caldera I, 74 Or LUBA at 552.6 The Court of Appeals affirmed that part of our decision. Caldera II, 285 Or App at 282. On the merits, the intervenor in Caldera invoked Gould CMP II, 54 Or LUBA 205, arguing that we had approved inclusion of similar lock-off rooms in the calculation of OLUs in that case. We explained that the petitioner's challenge in Gould CMP II was narrow--the petitioner had argued to us that the fact that the OLUs could be converted to residential units in the future required denial of the CMP. In Caldera I, we explained that, in Gould CMP II, no party argued that the proposed lock-off units did not qualify as OLUs. Caldera I, 74 Or LUBA at 552-55. In Caldera I, we determined that the individual lock-off rooms do not qualify as OLUs under the statutory definition in ORS 197.435(5)(b). See n 1; Caldera I, 74 Or LUBA at 552-55. The Court of Appeals reversed and remanded our decision on that statutory interpretation issue. Caldera II, 285 Or App 267. Ultimately, we remanded the decision to the county for further findings. Caldera III, 76 Or LUBA 6. As an initial matter, the Caldera cases do not provide a definitive rule regarding what type of rentable accommodations satisfy the OLU definition. Instead, the Caldera cases concluded that whether an accommodation meets the OLU definition requires a fact-specific inquiry. Thus, the Caldera cases do not provide a general rule that lock-off accommodations cannot qualify as OLUs. **6 *570 Second, and more importantly, this case is distinguishable from the Caldera cases on the issue of collateral attack. The Caldera cases involved the review of a CMP for a resort expansion, and specific resort expansion criteria reopened the issue of whether the lock-off rooms in the approved resort qualified as OLUs. Differently, the challenged decision in this appeal Exhibit 123 Page 39 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.6 is a tentative plan under an approved CMP/FMP. Even if the Caldera cases controlled the issue of what type of accommodations qualify as OLUs, the tentative plan approval could not violate the Caldera cases because the tentative plan approval does not decide whether the specific design of the OLUs meets the definition of OLU. The character of the OLUs, and whether they met the definition of OLU, was decided in the CMP approval and not challenged on appeal from the CMP approval in Gould CMP II. That issue is settled, unless and until the resort seeks approval from the county to modify the design of the required OLUs. See Safeway, Inc. v. City of North Bend, 47 Or LUBA 489, 500 (2004) (“As a general principle, issues that were conclusively resolved in a final discretionary land use decision, or that could have been but were not raised and resolved in that earlier proceeding, cannot be raised to challenge a subsequent application for permits necessary to carry out the earlier final decision.”). Thus, even if we agreed with petitioner that the approved OLU design is inconsistent with the decisions in the Caldera cases, an issue on which we express no opinion, that conclusion would provide no basis for reversal or remand in this appeal because that issue is not subject to collateral attack in subsequent applications carrying out the FMP. The hearings officer did not err in approving a tentative plan that did not include detailed plans for the cottages that will provide the required OLUs. B. Visitor-oriented Recreational Facilities In addition to establishing compliance with the FMP, each development phase of a destination resort must receive additional approval through site plan review or the subdivision process. DCC 18.113.040(C).7 Petitioner argued to the hearings officer that the tentative plan failed to provide information required for a subdivision approval. Specifically, DCC *571 17.16.030(C) requires that the following information “be shown on the tentative plan or provided in accompanying materials”: “5. Location, approximate area and dimensions of any lot or area proposed for public use, the use proposed, and plans for improvements or development thereof; 6. Proposed use, location, approximate area and dimensions of any lot intended for nonresidential use.” DCC 17.16.030(C) provides that “[n]o tentative plan shall be considered complete unless all such information is provided.” Petitioner argues that the tentative plan fails to show the required information for the recreational amenities, restaurant, and meeting facilities. Intervenor responds that DCC 17.16.030(C) provides application submittal requirements but does not constitute approval criteria. Intervenor argues that petitioner has not established that the absence of specific information required by DCC 17.16.030(C)(5) and (6) results in noncompliance with any approval criteria. **7 Intervenor relies on Conte v. City of Eugene, 78 Or LUBA 289 (2018), aff'd, 295 Or App 789, 434 P3d 984 (2019). Like this case, Conte involved multiple trips up and down the appeal ladder. The petitioner appealed a city hearings officer's decision approving an application for final planned unit development (PUD) approval. The tentative plan approval imposed a condition, Condition 20, to ensure that the PUD provide “safe and adequate” transportation systems to nearby areas as required by the city's code. Id. (slip op at 4). The petitioner argued that the intervenor was required to submit new or amended ““final maps and supplemental materials” as supplements to its final PUD application. Id. (slip op at 9). Similar to petitioner in this case, the petitioner in Conte invoked an application requirements for a final PUD that requires applications contain, among other things, final maps and supplemental materials to demonstrate compliance with tentative plan conditions of approval, including evidence that all required public improvement have been completed or financially assured. The city hearings officer observed that the application requirements are not approval criteria, “and that the failure to satisfy application requirements can only serve as a basis to deny an application if the required information is necessary to demonstrate compliance with an applicable approval criterion.” Id. (slip op at 10). The hearings officer also concluded that maps and supplemental drawings are not required to be submitted in order to demonstrate that the final PUD plan conforms with the tentative PUD plan and all conditions. The hearings officer observed that Condition 20 required the *572 street improvement Exhibit 123 Page 40 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.7 be completed “[p]rior to occupancy” rather than prior to final PUD approval. Id. We affirmed the hearings officer's interpretation of the city's final PUD submission requirements. Our reasoning in Conte requires the same result in this appeal. DCC 17.16.030(C) requires that certain information be provided in an application for a tentative subdivision plan. 18.113.040(C) requires that “[e]ach * * * development phase of the destination resort must receive additional approval through the required site plan review (DCC 18.124) or subdivision process (DCC Title 17).” Petitioner has not explained how, absent the information required by DCC 17.16.030(C)(5) and (6), approval of a tentative plan would violate some portion of the destination resort approval criteria or the FMP. The FMP requires that the recreational amenities, restaurant, and meeting room facilities be provided or bonded before the sale of lots. See also ORS 197.465(3) (requiring that in phased developments recreational amenities intended to serve a phase must be constructed prior to sales of residential units in that phase). Petitioner has not demonstrated that the violation of the submission requirements contained DCC 17.16.030(C) resulted in non-compliance with at least one mandatory approval criteria. We agree with inventor that petitioner's argument under DCC 17.16.030(C) provides no basis for reversal or remand. See Le Roux v. Malheur County, 32 Or LUBA 124, 129 (1996) (the fact that application requirements may not have been satisfied provides no basis for remand unless the failure to satisfy the requirements resulted in noncompliance with at least one mandatory approval criteria). Like Conte, where the required street improvements were required to be completed “[p]rior to occupancy” rather than prior to final PUD approval, it appears to us that subsequent application and review for the resort development will ensure compliance with the subdivision and FMP requirements. **8 The first assignment of error is denied. SECOND ASSIGNMENT OF ERROR In the second assignment of error, petitioner argues that the approved tentative plan violates mitigation requirements for impacts of the development on protected fish and wildlife resources. To satisfy destination resort approval criteria, intervenor is required to demonstrate that “[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource.” DCC 18.113.070(D). The resort's impact on fish and wildlife, and the efficacy of required mitigation, was litigated over the course of multiple prior appeals, as we explained in Gould v. *573 Deschutes County, 78 Or LUBA 118 (2018). We have referred to the DCC 18.113.070(D) standard as the “no net loss/degradation” standard. Id. In Gould v. Deschutes County, 216 Or App 150, 171 P3d 1017 (2007), the Court of Appeals held that the county's determinations on wildlife impacts and mitigation were inadequate to satisfy the applicable criteria for the CMP. The FMP includes a revised fish and wildlife mitigation plan that the applicant prepared in coordination with Oregon Department of Fish and Wildlife (ODFW) and BLM (mitigation plan). The mitigation plan was challenged in multiple rounds of appeals, and ultimately upheld in Gould, 78 Or LUBA 118. In this appeal, petitioner does not challenge the mitigation plan, but instead challenges the Phase 1-A approval as inconsistent with the mitigation plan, as explained further below. A. Water There are no existing natural streams, ponds, wetlands, or riparian areas on the site. The resort water supply will be groundwater obtained from six wells on the property. The applicant obtained 2,129 acre-feet of water rights to support the resort development year-round.8 The Oregon Water Resources Department (OWRD) granted the water right upon finding that intervenor is responsible for providing 1,356 total acre-feet of mitigation water: 836 acre-feet from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch, and the remaining mitigation water from the Central Oregon Irrigation District (COID).9 *574 The resort'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. The mitigation plan requires intervenor to replace the Exhibit 123 Page 41 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.8 water consumed by the resort with volumes and quality of water that will maintain fish habitat, especially cold water thermal refugia. The county found that the mitigation plan will result in no net loss/degradation to fish and wildlife resources. 1. Sub-phasing The mitigation plan requires intervenor to provide in-stream mitigation water ““in advance for the full amount of water to be pumped under each phase of development,” including an estimated 610 acre feet (AF) of water in Phase A and 1,201 AF in Phase B. Record 661-63. Big Falls Ranch and COID were identified as sources of the mitigation water. Record 661. The impact of the resort water use on thermal refugia for fish was central to disputes in prior appeals. See Gould, 78 Or LUBA 118. **9 Petitioner argues that sub-phasing Phase A impacts the mitigation plan so that it is unknown whether any negative impact on fish will be completely mitigated. Petition for Review 40. Petitioner contends that the changes required a new application for CMP and FMP review, or an application for a modification of the FMP. Petition for Review 42. Intervenor responds, and we agree, that the mitigation plan was not specifically tied to or dependent upon the stages of phased development approved in the FMP. Instead, mitigation is planned to occur as development occurs. FMP Condition 10 requires intervenor to submit documentation that mitigation and a water rights permit has been issued for each development phase. See n 9. We do not read that condition to require the specific phasing stages approved in the FMP. Instead, we agree with intervenor that because water mitigation is based on consumptive use, the condition requires proof of adequate water rights and mitigation commensurate with the estimated consumptive use of water for the development approved at each phase of development, and in advance of actual water consumption. While intervenor ultimately bears the burden to establish that the resort development will result in no net loss/degradation to fish and wildlife resources, petitioner has not *575 argued or established that subphasing materially affects the findings underlying the mitigation plan for phased development. The hearings officer did not err in concluding that subphasing did not require a new application for CMP and FMP review, or an application for a modification of the FMP. This subassignment of error is denied. 2. Incremental Development Plan In July 2018, OWRD approved a change to an OWRD permit related to the incremental development plan (IDP).10 Petitioner contends that the IDP includes changes to the amount of mitigation water and timing of providing mitigation water. Consumptive use for Phase A is estimated at 610 AF per year.11 Record 659. Petitioner argues that the IDP reduces mitigation water in Phase A from 610 AF to 203 AF, with 50 AF to be provided as part of Phase A-1, and violates the FMP condition that all mitigation water be provided in Phases A and B. 2 The hearings officer found that the tentative plan did not propose to modify the overall amount of mitigation water required to be provided in the mitigation plan but, instead, modified the timing of when the mitigation water would be provided based on consumptive use. Record 67-68. The hearings officer reasoned that the mitigation plan and related IDP “provide a framework for estimating use, consumptive use and mitigation, but were not intended to lock in a certain development pattern or timing.” Record 68. The hearings officer observed that the record contained “no evidence that modifying the IDP to reflect the current resort development schedule in any way impacts the efficacy of mitigation and [intervenor's] expert's testimony is that it will not. To the contrary, there is evidence that the longer timeframe for water consumption will result in more gradual, spread out impacts.” Record 68. The hearings officer found that the tentative plan for Phase A-1 refinement to the mitigation plan regarding timing of mitigation is not substantial. Id. **10 Petitioner argues that the changes to the mitigation plan require intervenor to apply for a modification to the CMP/FMP to justify the changes. Petition for Review 50. However, petitioner has not established that any finding of fact on which the original Exhibit 123 Page 42 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.9 approval was based would be materially *576 affected by the alteration in mitigation water timing, which remains attached to consumptive use. Accordingly, petitioner's argument regarding the timing of mitigation provides no basis for remand. The mitigation plan provides that “mitigation must be provided in advance for the full amount of water to be pumped under each phase of development.” Record 65. “The mitigation obligation for Phase A is 610 AF, equal to consumptive use. Maximum water use for Phase B is 2,129 AF per year (full build-out, including Phase A use).” Record 661. FMP Condition 10 provides: “10. Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase.” Record 217. In an attempt to demonstrate compliance with FMP Condition 10, in material submitted in support of the application in this proceeding, intervenor stated, ““the full amount of the mitigation that will be required by this TP is approximately 50 acres of water[,]” and “the amount of mitigation that will be required for the entirety of the Phase A development, including numerous elements to be applied for in subsequent site plans, is 203 acres of mitigation.” Record 997. Before the hearings officer, petitioner argued that amount of mitigation was inadequate to satisfy the FMP mitigation requirement. Intervenor responded with expert opinion that the proposed subphasing would spread water impacts over a longer period, but that the overall amount of mitigation would not be changed and must provide mitigation water in advance of water use. Record 65-66. Petitioner objected to the submission of the expert evidence on procedural grounds but does not appear to have attempted to respond with contrary evidence. Record 66. The hearings officer accepted intervenor's expert evidence over petitioner's objection. Id. On appeal, petitioner does not assert any procedural error with respect to that evidence. The hearings officer agreed with petitioner that the approximately 50 AF refers to the water use for the 192 residential units planned in Phase A-1, which does not include the OLUs or any other use required to be provided in Phase A. Record 65. The hearings officer also appears to have agreed with petitioner that the tentative plan reduced the mitigation from 610 to 203 AF for Phase A and changed the timing from in advance of each phase to after construction. Id. Nevertheless, the hearings officer found that the change or refinement in the mitigation plan is not a substantial change because the required mitigation plan requires mitigation for use of water and, “if there is no water use, there is no impact.” Record 67-68. The hearings officer observed *577 that the record contained no evidence that modifying the mitigation to reflect the current resort development schedule in any way impacts the efficacy of mitigation and the only evidence in the record is that “the longer timeframe for water consumption will result in more gradual spread out impacts.” Record 68. **11 Petitioner argues that, even if intervenor could alter the mitigation plan without an application modification approval, as we have concluded, intervenor's proposed 50 AF of mitigation water for Phase A-1, will cover consumptive use of water for 192 residential dwellings, but does not include consumptive use of water for the OLUs and other uses required to be provided in Phase A-1. Petition for Review 51. Intervenor responds that that it has not requested, and the county has not approved, any reduction in required mitigation. Instead, intervenor contends that the 50 AF consumptive use for Phase A-1 was provided as an estimate to satisfy the information requirement of FMP Condition 10, quoted above. Intervenor concedes that the 50 AF estimate does not include the OLUs proposed to be developed in Phase A-1. Intervenor argues that omission does not violate the FMP mitigation plan because, under the current IDP, intervenor is required to provide 319.4 AF of mitigation water before pumping water for the uses allowed by the tentative approval for Phase A-1. Response Brief 40-41. We agree with intervenor that the challenged decision does not approve a reduction in the mitigation water or modify the requirement that mitigation water be provided in advance of water consumption. Petitioner has not established that the changes in the amount and timing of mitigation water materially affect the findings underlying the mitigation plan. Exhibit 123 Page 43 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.10 Petitioner also argues that the IDP change in mitigation quantity was carried out without an opportunity for public comment. Petition for Review 51. That argument is not developed sufficiently for our review. Deschutes Development Co. v. Deschutes County, 5 Or LUBA 218, 220 (1982). This subassignment of error is denied. 3. Mitigation Water Sources 3 The hearings officer found that the mitigation plan relies on mitigation water acquired from the COID and Big Falls Ranch. Record 69-70. Petitioner submitted a statement from COID that there are no current or active agreements between COID and the resort and a document suggesting that Big Falls Ranch proposes to transfer surface water rights that the resort had intended to acquire for mitigation water. Record 69. Intervenor responded that *578 the mitigation plan did not “mandate” COID and Big Falls Ranch water, but instead authorized mitigation water within a general zone. Id. The hearings officer rejected intervenor's argument and found that, in approving the mitigation plan as part of the FMP, “both ODFW and the Hearings Officer relied on those sources in reaching their respective conclusions that mitigation was adequate.” Id. The hearings officer concluded that petitioner's evidence was “sufficient evidence to call into question whether obtaining water from those sources remains feasible,” and found that a change in the source of mitigation water “may constitute a substantial modification to the FMP approval.” Record 70. The hearings officer further found that the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. However, the hearings officer concluded that compliance with the mitigation plan and, implicitly, the no net loss/degradation standard that the mitigation plan was designed to satisfy, could be met by imposing the following condition of approval: **12 “17. Site design approval. Prior to issuance of building permits for the single-family dwellings, obtain design approval for at least 50 OLUs, which approval shall demonstrate that: (a) the OLUs qualify as such and (b) the Big [Falls] Ranch and COID water referenced in the Mitigation Plan and FMP decision have been secured, [or] demonstrate that the proposed alternate source is acceptable to ODFW and provides the same quantity and quality mitigation so as not to constitute a substantial modification or justify a modification to the FMP.” Record 117 (boldface omitted). Petitioner argues that TP Condition 17 impermissibly allows a modification of the mitigation plan without providing an opportunity for further public input on the issue of whether any proposed alternate source of mitigation water provides “the same quantity and quality mitigation” to satisfy the no net loss/degradation standard. Petition for Review 54. We agree. A local government may defer a decision on approval criteria to a later date, so long as the local government finds that it is feasible to satisfy the approval criteria and “so long as interested parties receive a full opportunity to be heard before the decision becomes final.” Meyer v. City of Portland, 67 Or App 274, 280, 678 P2d 741, 744 (1984). As pertinent here, the court explained in Gould v. Deschutes County, 216 Or App 150, 163, 171 P3d 1017 (2007): “The code mandates that the approval standards be evaluated ‘from substantial evidence in the record.’ DCC 18.113.070(D). That provision requires that the justification be based on evidence submitted at public hearings on the application. The county's decision, however, allows the mitigation plan justification to be established by future discussions among Thornburgh, ODFW, and BLM, and not on evidence submitted during the *579 public hearings. That robs interested persons of the participatory rights allowed by the county ordinance.” Intervenor responds that the FMP did not require mitigation water be sourced from water provided by the COID and Big Falls Ranch and that the issue of feasibility of obtaining water from COID was settled in prior appeals. Intervenor's response misses the mark. As the hearings officer found, the mitigation plan relies on both quantity and quality of mitigation water acquired from the COID and Big Falls Ranch and the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. The no net loss/degradation issue has been litigated at length Exhibit 123 Page 44 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.11 and affirmed based on facts and expert evidence modeled on assumptions of water sourced from COID and Big Falls Ranch, which includes the quality of those sources, including water temperature, and impacts on downstream fish habitat. As the court explained in Gould, the public is entitled to a hearing on whether the no net loss/degradation standard will be satisfied by mitigation. See DCC 18.113.070(D) (requiring that “[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource”). The hearings officer's decision and TP Condition 17 allow a change in mitigation water source with the question of whether the new source satisfies the “no net loss/ degradation standard” to be evaluated solely among intervenor, ODFW, and the county without review or input by interested persons. That process would deny interested persons their participatory rights allowed by DCC 18.113.070(D). **13 Intervenor argues in its response brief that “the hearings officer had no legal basis to reopen the issue,” and “there is no legal basis for imposing Condition 17.” Response Brief 43, 46. Intervenor argues that the issue of water availability was settled by the FMP and intervenor did not propose to change the source of mitigation water as part of the tentative plan for Phase A-1. Intervenor asks that we reverse TP Condition 17. Response Brief 46. Intervenor did not file a cross-petition for review seeking remand or cross-assigning error to the imposition of TP Condition 17. We have authority to affirm, reverse, or remand a land use decision. ORS 197.835(1) (“The Land Use Board of Appeals shall review the land use decision or limited land use decision and prepare a final order affirming, reversing or remanding the land use decision or limited land use decision.”). We do not have authority to reverse an individual condition of approval and affirm the remainder of the decision. We do not have authority to grant intervenor's request for relief. Further, even if we did have such authority, the request for relief is not appropriate in a response brief. *580 Intervenor argues in the response brief that the FMP approval did not rely on mitigation water from COID and Big Falls Ranch. Response Brief 46-50. However, intervenor did not challenge the hearings officer's finding that the FMP approval relied on those water sources by way of cross-petition. Accordingly, we accept the hearings officer's findings on that issue. The hearings officer found that petitioner's evidence calls into question whether intervenor will be able to satisfy the requirements of procuring and providing the quantity and quality of water required to execute the mitigation plan to satisfy the no net loss/degradation standard. The hearings officer concluded that the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. The hearings officer determined that a change in the source of mitigation water “may constitute a substantial modification to the FMP approval.” Record 70. We conclude that TP Condition 17 violates the right to a public hearing on whether the no net loss/degradation standard will be satisfied by mitigation from water sources not specified in the mitigation plan. Accordingly, the county may not rely on TP Condition 17 to conclude that, as conditioned, the tentative plan approval will comply with the mitigation plan and thus satisfy the no net loss/degradation standard. On remand, the county must consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water constitutes a substantial change to the FMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and DCC destination resort regulations. **14 This subassignment of error is sustained. 4. Water Permit FMP Condition 10, requires “at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit.” See n 9. The hearings officer concluded that FMP Condition 10 requires “documentation of the state water permit and an accounting of mitigation ‘under the water right,”D’ and that the condition was satisfied by the “complete documentation of the status of the permit and IDP.” Record 73. Prior to expiration of the deadline for using the water under its water rights permit, intervenor applied to extend the permit. OWRD denied the request Exhibit 123 Page 45 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.12 for permit extension. OWRD later withdrew the denial and approved the extension. Petitioner filed a protest of the OWRD order. Subsequently, OWRD informed the county that the resort “has done everything needed to be in compliance and good standing with OWRD in *581 regards to [the permit] as well as purchasing mitigation credits and providing instream flow benefits without even using any water yet.” Record 1152. In September 2018, OWRD stated that the permit is in full force and effect, which the hearings officer concluded means that the extension approval remains valid pending resolution of the appeal. Record 501. Petitioner argues that the challenged decision is invalid because the initial OWRD water permit expired and, thus, the tentative plan cannot be approved in the absence of a condition of approval requiring intervenor to demonstrate that it has obtained a valid water permit. Intervenor first responds that petitioner waived the water permit expiration argument because petitioner argued before the hearings officer only that intervenor's water permit extension was subject to petitioner's protest. Petitioner replies, and we agree, that petitioner raised the issue of the validity of the water right permit and that issue is not waived. See DLCD v. Tillamook County, 34 Or LUBA 586, aff'd, 157 Or App 11, 967 P2d 898 (1998) (ORS 197.835(3) and ORS 197.763 require that petitioners at LUBA have raised the issues they wish to raise at LUBA during the local proceeding; however, that restriction does not apply to individual arguments regarding those issues). Intervenor argues that the current record demonstrates that intervenor has a valid water right and petitioner's protest of the extension “does not render the permit void.” Response Brief 54. We agree that the hearings officer did not err in construing FMP Condition 10 to require documentation of the water right and concluding that, based on the record before him, intervenor had established a valid water right. The subassignment of error is denied. B. Wildlife Mitigation Petitioner next argues that the hearings officer erred in approving the tentative plan because intervenor has failed to provide details for wildlife mitigation. The wildlife mitigation plan requires intervenor to restore wildlife habitat on the property. Onsite mitigation is required for each phase of development. For example, wildlife road underpasses are required to be completed at each phase and intervenor must control noxious weeds and preserve native vegetation, logs, and snags. With respect to off- site mitigation, the FMP wildlife mitigation plan requires intervenor to provide 2.3 acres of mitigation for every developed acre or pay a fee in lieu into escrow if mitigation land is not available. Specific mitigation actions must be determined through consultation with wildlife management agencies. Record 84. **15 *582 FMP Condition 38 requires intervenor to “abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of off-site mitigation efforts[,] and “submit an annual report to the county detailing mitigation activities that have occurred over the previous year.” See n 9; Record 221. Before the hearings officer, petitioner argued that the intervenor was required to demonstrate in the tentative plan how intervenor would carry out the FMP wildlife mitigation plan. Intervenor argued that the wildlife mitigation and consultation would occur during a later subphase of Phase A. The hearings officer observed that wildlife mitigation measures are required to be incrementally implemented at each phase of development and that specific on-site implementation measures are dependent on the manner in which construction activities occur on the subject property. With respect to on-site mitigation measures, the hearings officer found no basis to deny the tentative plat or site plan applications. Record 84. However, the hearings officer reasoned that the subphasing of Phase A could potentially lead to noncompliance with the wildlife mitigation plan. For example, if the dwellings that are subject to the Phase A-1 approval are constructed, but further development stops, then development could potentially occur without compliance with Exhibit 123 Page 46 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.13 the wildlife mitigation plan. To prevent that result, the hearings officer imposed two conditions requiring ongoing restoration of native vegetation where construction disturbs native vegetation in open space areas that are planned to be retained in a substantially natural condition and requiring intervenor to obtain BLM and ODFW concurrence that no mitigation is required, or provide required mitigation or deposit escrow funds in lieu of mitigation. Record 118.12 Petitioner does not challenge the adequacy of those conditions, but instead simply reiterates her argument before the hearings officer that intervenor was required to provide a detailed mitigation plan prior to tentative *583 plan approval. Petition for Review 56. Intervenor responds that FMP Condition 38 assures compliance with the wildlife mitigation plan by requiring an annual report of mitigation activities. As established in prior appeals, the mitigation plan satisfies the substantive no net loss/degradation standard for destination resort development. We agree with intervenor that the details of the mitigation plan are established by the FMP, and compliance (or noncompliance) with the mitigation measures will be established by annual reporting required by FMP Condition 38. We reject petitioner's argument that the FMP required intervenor to “fill in the details” to obtain approval of a tentative plan during phased development. Petition for Review 56. Petitioner has not demonstrated that the approved subphasing, as conditioned, alters any mitigation requirement under the FMP mitigation plan. Petitioner's argument provides no basis for remand. **16 The subassignment of error is denied. C. Related Conditions of Approval The mitigation plan involves (1) the removal of two wells on the subject property, (2) the removal of two dams that impede the flow of spring water from Deep Canyon Creek to the Deschutes River, and (3) transfer of water from Deep Canyon Creek that Big Falls Ranch uses for irrigation for mitigation. Record 215. Petitioner argues that the hearings officer erred in failing to require as a condition of approval for the tentative plan that, prior to beginning construction, intervenor remove the dams and the wells. Petitioner argues that while the body of the hearings officer's decision states that the first dam will be removed prior to construction under the tentative plan, he failed to include dam removal as a condition of approval. Intervenor responds, and we agree, that removal of the dams and provision of mitigation water is required by the FMP approval and the tentative plan does not alter the mitigation plan. Response Brief 55. The hearings officer was not required to impose additional conditions to the approval of the tentative plan. Petitioner also argues that the hearings officer's discussion of compliance with FMP Condition 38 is inadequate and that the hearings officer inappropriately allowed deposit of funds in lieu of required mitigation. Petitioner's argument appears to be repetitive of other arguments in the petition for review, which are addressed earlier in this decision. If, instead, petitioner intended to present a different and distinct argument, then that argument is not *584 sufficiently developed for our review and, thus, provides no basis for remand. Deschutes Development Co., 5 Or LUBA at 220. This subassignment of error is denied. The second assignment of error is sustained, in part, and denied, in part. The county's decision is remanded. Footnotes Exhibit 123 Page 47 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.14 1 DCC 18.04.030 defines overnight lodgings: “‘Overnight lodgings' with respect to destination resorts, means permanent, separately rentable accommodations that are not available for residential use. Overnight lodgings include hotel or motel rooms, cabins and time-share units. Individually-owned units may be considered overnight lodgings if they are available for overnight rental use by the general public for at least 38 weeks per calendar year through a central reservation and check-in service operated by the destination resort or through a real estate property manager, as defined in ORS 696.010. Tent sites, recreational vehicle parks, mobile homes, dormitory rooms and similar accommodations do not qualify as overnight lodging for purposes of this definition.” See also ORS 197.435(5)(b) (providing similar OLU definition). 2 DCC 18.113.050(B)(21) provides that the CMP shall include: “A description of the mechanism to be used to ensure that the destination resort provides an adequate supply of overnight lodging units to maintain compliance with the 150-unit minimum and 2 and one-half to 1 ratio set forth in DCC 18.113.060(D)(2). The mechanism shall meet the requirements of DCC 18.113.060(L).” 3 FMP Condition 21 provides, in part: “Each phase of the development shall be constructed such that the number of overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of individually owned units to overnight lodging unit standards set out in DCC 18.113.060 (A) (1) and 18.113.060 (D) (2). Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in services. As required by ORS 197.445(4)(b)(B), at least 50 units of overnight lodging must be constructed in the first phase of development, prior to the closure of sale of individual lots or units.” Record 219. FMP Condition 33 provides: “The Resort shall, in the first phase, provide for the following: “A. At least 150 separate rentable units for visitor-oriented lodging. “B. Visitor-oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. “C. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 10.113.060 (A) (1) and (2) shall be at least $2,000,000 (in 1984 dollars). “D. At least $2,000,000 (in 1984 dollars) shall be spent on developed residential facilities. “E. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots.” Record 220. 4 DCC 18.113.080 provides: “Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP. An insubstantial change may be approved by the Planning Director. Substantial change to an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected.” 5 TP Condition 18 provides: “18. Construction. Prior to closing on the sale, lease or rental of any residential lots or dwellings: “a. Obtain land use approvals for development of the remaining elements of Phase ‘A,’ including the remaining OLUs, restaurant, meeting rooms and recreational facilities. “b. Construct at least 50 OLUs “c. Construct or provide financial assurance for construction of the remaining 100 OLUs “d. Construct or provide financial assurance for construction of the restaurant, meeting rooms and recreational facilities for Phase ‘A’ and as noted in FMP Condition 33.” Record 117 (boldface omitted). 6 DCC 18.113.025 provides: “Expansion proposals of existing developments approved as destination resorts shall meet the following criteria: “A. Meet all criteria of DCC18.113 without consideration of any existing development; or Exhibit 123 Page 48 of 49 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.15 “B. Meet all criteria of DCC18.113 for the entire development (including the existing approved destination resort development and the proposed expansion area), except that as to the area covered by the existing destination resort, compliance with setbacks and lot sizes shall not be required. “If the applicant chooses to support its proposal with any part of the existing development, applicant shall demonstrate that the proposed expansion will be situated and managed in a manner that will be integral to the remainder of the resort.” 7 DCC 18.113.040(C) provides: “Site Plan Review. Each element or development phase of the destination resort must receive additional approval through the required site plan review (DCC 18.124) or subdivision process (DCC Title 17). In addition to findings satisfying the site plan or subdivision criteria, findings shall be made that the specific development proposal complies with the standards of DCC 18.113 and the FMP.” 8 Ground water will be used for domestic and commercial uses, golf course and landscape irrigation, reservoir and pond maintenance, and fire protection. As we understand it, the current water right holder is an entity called Pinnacle, which we understand is a separate entity from intervenor, however for the sake of simplicity in this decision we refer to intervenor as the water right holder. 9 The FMP included the following conditions of approval: “10. Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase.” Record 217. “38. The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of offsite mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek. “39. The applicant shall provide funding to complete a conservation project by the Three Sisters Irrigation District to restore 106 acre-feet of instream water to mitigate potential increase in stream temperatures in Whychus Creek. The applicant shall provide a copy of an agreement with the irrigation district detailing [the] funding agreement prior to the completion of Phase A.” Record 221. 10 The IDP approves the following in-stream mitigation water uses: 2013-2019 3.6 AF; 2020-2024 315.8 AF; 2025-2029 212 AF; 2030-2034 515.5 AF. Record 1154. 11 “Consumptive use” means the amount of ground water appropriation that will not return to surface water flows. Record 67; see also OAR 690-505-0605(2) (OWRD definitions for Deschutes Basin Ground Water Mitigation Rules). 12 The TP includes the following conditions of approval: “19. FMP Condition 34: As an ongoing condition of approval, where construction disturbs native vegetation in open space areas that are to be retained in substantially natural condition, the applicant shall restore the native vegetation. This requirement shall not apply to land that is improved for recreational uses, such as golf courses, hiking or nature trails or equestrian or bicycle paths. “20. FMP Condition 38. Prior to issuance of building permits for any Phase ‘ ‘A’ development: obtain BLM/ODFW concurrence that no mitigation is required; provide such mitigation or establish the escrow and deposit funds equal to the area of such mitigation.” Record 118 (boldface omitted). 79 Or LUBA 561 (Or Luba), 2019 WL 11505037 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Exhibit 123 Page 49 of 49 For Recording Stamp Only DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBER: CU -05-20 HEARING DATE: December 20, 2005 APPLICANT: Thornburgh Resort Company, LLC Kameron DeLashmutt c/o Schwabe, Williamson & Wyatt, P.C. 354 SW Upper Terrace Dr., Suite 101 Bend, OR 97702 541) 318-9950 OWNER'S Schwabe, Williamson & Wyatt, P.C. REPRESENTATIVE: Peter Livingston, Attorney at Law 1211 SW Fifth Ave., Suite 1600 Portland, OR 97204 503) 796-2892 Myles Conway, Attorney at Law 354 SW Upper Terrace Dr., Suite 101 Bend, OR 97702 541) 749-4019 Martha Pagel, Attorney at Law 1011 Liberty St., SE Salem, OR 97302 503) 796-2872 STAFF REVIEWER: Devin Hearing I. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, Zoning Ordinance: Chapter 18.16. EXCLUSIVE FARM USE Tumalo/Redmond/ Bed Subzone (EFU- TRB): Page 1 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-1D C s 2 0 0as 151 Exhibit 124 Page 1 of 8 22. If the proposed destination resort is in a SMIA combining zone, DCC 18.56 shall be addressed; The resort property is not in a Surface Mining Impact Area (SMIA) combining zone. This standard does not apply. 23. If the proposed destination resort is in an LM combining zone, DCC 18.84 shall be addressed; The resort property is not in a Landscape Management (LM) combining zone. This standard does not apply. 24. A survey of historic and cultural resources inventoried on an acknowledged Goal 5 inventory; The County's acknowledged Goal 5 inventory does not include any historic or cultural resources located on the resort property; therefore, the Board finds a survey is not required. Further, even if there are significant resources on the site that are not included on the inventory, they cannot be treated as added for purposes of this application. Urquhart v. Lane Council of Governments, 80 Or App 176, 721 P.2d 870 (1986). Applicant submitted a "Historic and Cultural Resources Survey," BOP, Ex. 22, B-1.27, in which Tetra Tech discusses its review of cultural resources literature and applicable records pertinent to historic and cultural resources on the site. Applicant then asked Tetra Tech to do an Archaeological Survey and Evaluation" of those parts of the resort that the survey suggested might locate significant cultural resources. RM, Ex. 22, B-1.27. Applicant's submission of these studies goes beyond what is required by this criterion. Opponent Gould argues that DCC 18.113.050 B.1 requires consideration of impacts of proposed development on archaeological resources. The Board disagrees and interprets DCC 18.113.050 B.1 to address only impacts on natural resources, a category that does not include archaeological resources. DCC 18.128.015, also mentioned by Gould, does not apply to this application. This criterion is met. STANDARDS FOR DESTINATION RESORTS (DCC 18.113.060) The following standards shall govern consideration of destination resorts: A. The destination resort shall, in the first phase, provide for and include as part of the CMP the following minimum requirements: 1. At least 150 separate rentable units for visitor -oriented lodging. 2. Visitor -oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. Page 42 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 2 of 8 3. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 18.113.060(A)(1) and (2) shall be at least $2,000,000 (in 1984 dollars). 4. At least $2,000,000 (in 1984 dollars) shall be spent on developed recreational facilities. 5. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots. As noted above, Applicant proposes to develop the resort in seven phases. Applicant states it will comply with the above requirements for the first phase of development, including construction of 50 golf cottages with lockout facilities to ensure 150 separate rentable units are available within the first phase. Applicant also will develop (or bond) a restaurant with seating for at least 100 persons in the first phase. The Board finds that Applicant must provide the meeting and eating areas in the first phase. Although Applicant must show the location of the meeting and eating areas in Phase A, DCC 18.113.110(B) allows Applicant to provide financial assurances satisfactory to the County for those improvements rather than actually constructing them prior to recording the final plat. Condition ofApproval #33 outlines this requirement. This criterion is met. B. All destination resorts shall have a minimum of 160 contiguous acres of land. Acreage split by public roads or rivers or streams shall count toward the acreage limit, provided that the CMP demonstrates that the isolated acreage will be operated or managed in a manner that will be integral to the remainder of the resort. The site comprises 1,970 acres, exceeding the 160 -acre minimum. This criterion is met. C. All destination resorts shall have direct access onto a state or County arterial or collector roadway, as designated by the Comprehensive Plan. The resort has direct access to the Cline Falls Highway, which is designated as an arterial roadway in the Deschutes County Comprehensive Plan and which will be utilized as a main entrance point for the resort development. The Cline Falls Highway bisects the southeast corner of the resort property in Section 28 and provides a direct connection to the county road system. This access alone is sufficient to satisfy the criterion. The Board also finds that Applicant will be able to obtain a second direct access to a state or County arterial or collector roadway designated by the Comprehensive Plan, Oregon State Highway 126, if Applicant's pending right-of-way application with the U.S. Bureau of Land Management is approved. Applicant prepared an "Application for Transportation and Utility Systems and Facilities of Federal Lands" (hereafter the "BLM Right-of-way Application") that is Page 43 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 3 of 8 proposal will ensure that there is more open space than is required through all stages ofthe project. This is made clear by AHM, Section 2, Ex. B-4 (corrected). The Board finds further that Applicant demonstrated that it is feasible to maintain the 50 percent open space requirement during the life of the resort. As discussed under DCC 18.113.050 B.5, in response to the concerns of opponents, Condition #14 ensures that Applicant's continuing compliance with this standard throughout subsequent development phases, as shown on the Open Space Map (Revised), RM, Ex. 9, B-1.04, and the Open Space Phasing Plan (Revised), RM, Ex. 9, B-1.09. The 50 percent open space requirement and the adopted conditions will be further enforced during the subdivision approval process and subsequently, when a subdivision plat for each phase is presented to the County for approval, since no subdivision plat within the resort will be approved if it allows the total amount of open space in the resort to drop below 50 percent or does not comply with the conditions. This criterion is met. 2. Individually -owned residential units shall not exceed two such units for each unit of visitor -oriented overnight lodging. Individually - owned units shall be considered visitor -oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in service(s). The revised application proposes a total of 1,425 dwelling units, of which 950 units are proposed to be single-family dwellings and are not anticipated to be used for overnight rental. Of the remaining 475 units, 425 will be residential units available for rental for at least 45 weeks of the year through one or more central reservation and check-in services, and 50 units will be provided in a hotel. AHM, Section 3, "Exhibit A-5 (Corrected)" ("Overnight and Density Calculations"). The 2:1 standard will be met at the end of each phase of development and at the end of full development. Opponents correctly observe that the Overnight and Density Calculations page contains a note stating, "It is likely that the Phase A buildings will be modified so that the lockoffs will not be used on a long term basis." This note is speculative. In view of the protections given overnight lodging by DCC 18.113.070 U. (designation on the plat of overnight lodging units, deed restrictions limiting use of such identified premises to overnight lodging, inclusion of the CC&Rs limiting such units to overnight lodging, language in the rental contract between the owner of the unit and the central reservation and check-in service, and registration of the unit with an annual required report), Applicant could not modify the use of the Phase A buildings without returning to the County for a modification of this conceptual master plan. If that were to occur, the overnight lodging calculations would be reviewed anew before approval. Since the note is inconsistent with the calculations in the table, the Board disregards it. Opponents also point out three inconsistencies between the types of development shown on the Overnight and Density Calculations page and the Phasing Plan, RM, Ex. 13, B-1.8. Page 46 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 4 of 8 Specifically, the Overnight and Density Calculations page shows the hotel being developed in Phase F and Phase G, while the Phasing Plan shows it as being developed in Phase D. The Overnight and Density Calculations page shows 75 units of overnight lodging being developed in Phase B and 75 units of overnight lodging being developed in Phase C, while the Phasing Plan shows all 150 of these units as being developed in Phase B (in area 27). The "62.5" units to be developed in Phase D are not shown in the Phasing Plan. These inconsistencies are insignificant. Even without correction, the Overnight and Density Calculations table and the Phasing Plan make clear that the overnight lodging units and the individually owned residential units will be distributed throughout the resort. More importantly, the mistakes in the table and the plan, which can easily be corrected, do not raise a genuine issue concerning whether the distribution of units will meet DCC 18.113 standards since, during the preparation of the final master plan, as required by DCC 18.113.090 I. and J., the number and location of residential lots and overnight lodging units will be reviewed to assure consistency with code requirements. Compliance with the 2:1 ratio will be enforced during the construction permitting process and Applicant has demonstrated, by providing a total ratio meeting the criterion and demonstrating that the ratio is possible with each phase. The enforcement also includes Condition #33 requiring 150 units of overnight lodging in Phase A. Again, Applicant may provide financial assurances for these 150 units prior to recording the final plat for Phase A. DCC 18.113 itself does not require the level of specificity that Applicant tried to provide. DCC 18.113.050 A.4 requires only "Types and general location of proposed development uses, including residential and commercial uses." It does not require that overnight lodging units and individually owned residential units, which are both residential uses, be identified, distinguished and located separately on a plan. As relevant, DCC 18.113.050 B.8 requires only, "A description of the proposed order and schedule for phasing, if any, of all development including an explanation of when facilities will be provided." Because Applicant furnished information that exceeds what is required at this stage and a condition of approval is included to assure compliance with the criterion, the County views the errors as harmless and subject to correction later in the development process. In Applicant's Final Argument to Board of Commissioners, p. 25, Applicant demonstrated one way such errors could be corrected; however, it is not necessary to adopt Applicant's demonstration exactly for this criterion to be met. In her decision, the Hearings Officer concluded that Applicant does not intend to maintain the Thornburgh development as an integrated resort but, rather, as a mix of private residential development surrounded by golf course and limited resort facilities that may be operated by a single entity or separate entities. The Board finds, however, that there is no requirement that all of the improvements in a destination resort be owned and managed by a single entity. A destination resort is defined by the development constraints imposed through the conceptual master planning process and subsequent land use reviews, the management of the overnight lodging, and the investment in amenities that make the resort attractive to visitors. The Board interprets DCC 18.113.060 D.2 to acknowledge that by allowing individually owned residences and by establishing a maximum ratio of 2:1 between residences and overnight lodging, a destination resort may include a mix of private residential development, overnight lodging, and resort amenities. Because Applicant's conceptual plan is consistent with this criterion and because of the strict requirements of DCC 18.113.070 U., the conditions imposed Page 47 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 5 of 8 by the County, the subsequent land use reviews, and the enforcement of code and decision approval requirements during the permitting process, the County concludes this criterion is and will be met. E. Phasing. A destination resort authorized pursuant to DCC 18.113.060 may be developed in phases. If a proposed resort is to be developed in phases, each phase shall be as described in the CMP. Each individual phase shall meet the following requirements: 1. Each phase, together with previously completed phases, if any, shall be capable of operating in a manner consistent with the intent and purpose of DCC 18. 113 and Goal 8. DCC 18.113.010 states that the DR overlay is intended to provide for "properly designed and sited destination resort facilities which enhance and diversify the recreational opportunities and the economy of Deschutes County," and which can be developed consistently "with the purpose and intent of DCC 18.113 and Goal 8." DCC 18.113.010. A. and B. As noted above, the development of the resort will be completed in seven phases. The Phasing Plan, RM, Ex. B-1.08, provides that a majority of the initial development will occur on the southern portion of the property, and will include the construction of a golf course, residential (not overnight) units, overnight units, internal roads and attendant utilities. Later phases provide for the construction of two additional golf courses, commercial facilities, a hotel facility and a range of residential and overnight housing. The final phase includes two residential areas that parallel Barr Road, an unimproved County road, which is not presently suited for access to and from the resort. As noted above under DCC 18.113.060, Applicant will comply with the early investment requirements for visitor -oriented lodging and visitor -oriented eating and meeting rooms either through actual construction or through financial assurance pursuant to DCC 18.113. 110, prior to closure of sales, rental or lease of any residential dwellings or lots. The recreational infrastructure and an appropriate ratio of overnight lodging to non -overnight residential established in the first phase and maintained thereafter through subsequent phases means that, at any stage in the development, the phases completed to date will be capable of operating in a manner consistent with the intent and purpose of DCC 18.113 and Goal 8. This criterion is met. 2. The first phase and each subsequent phase of the destination resort shall cumulatively meet the minimum requirements of DCC 18.113.060 and DCC 18.113.070. The Board finds that it is possible to assure that each phase meets the appropriate development standard. To ensure this further, the Board adopted conditions of approval that clarify the requirements Applicant must meet to assure the provision of adequate overnight lodging, infrastructure investment and open space in the first and each subsequent phase of the development. Page 48 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 6 of 8 S. Temporary structures will not be allowed unless approved as part of the CMP. Temporary structures will not be allowed for more than 18 months and will be subject to all use and site plan standards of DCC Title 18. Applicant states that temporary structures may be utilized for sales and construction purposes. Applicant expects to move specific structures as development of the resort progresses. Temporary structures that are ancillary to construction activities will be used for multiple stages of development requiring periodic changes in locations. They may include interim facilities or temporary structures or trailers for offices, work areas, and storage of construction materials. RM, Ex. 19, B-13. Anticipated temporary structures and their locations are identified in the Interim Development Plan, RM, Ex. 19, B-1.12. Opponents contend that temporary structures themselves should be approved as part of this CMP application, and that the precise location of each structure should be identified. However, the Board interprets this criterion not to require specific siting information at the time of application for CMP approval, but to require only that Applicant state whether it intends to use temporary structures. The precise location of each such structure will be reviewed by the County for compliance with the use and site plan standards of DCC Title18. Given the conceptual nature of the subject application, the Board finds that it is not necessary to address the applicable site plan standards now. Specific locations are appropriately handled at the subdivision and site plan stage ofdevelopment. This criterion is met. T. The open space management plan is sufficient to protect in perpetuity identified open space values. As explained under DCC 18.113.050 B.5, Applicant provided a satisfactory open space management plan. With the adoption of conditions suggested by Applicant, including the modification of the proposed CC&Rs and the requirement of specific deed restrictions, the open space and open space values shall be protected in perpetuity. The Board finds that these conditions satisfy the objections of opponents, who expressed concerns about Applicant's willingness or capability to protect identified open space values in perpetuity through deed restrictions and other means. This criterion is met. U. A mechanism to ensure that individually -owned units counting toward the overnight lodging total remain available for rent for at least 45 weeks per calendar year through a central reservation and check-in service. Such a mechanism shall include all of the following: 1. Designation on the plat of which individually -owned units are to be considered to be overnight lodging as used in DCC 18.113; 2. Deed restrictions limiting use of such identified premises to overnight lodging purposes under DCC 18.113 for at least 45 weeks each year; Page 85 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 7 of 8 3. Inclusion in the CC&R's of an irrevocable provision enforceable by the County limiting use of such identified units to overnight lodging purposes under DCC 18.113 for at least 45 weeks each year; 4. Inclusion of language in any rental contract between the owner of the unit and any central reservation and check-in service requiring that such units be made available as overnight lodging facilities under DCC 18.113 for at least 45 weeks each year; and 5. A requirement that each such unit be registered and a report be filed on each such unit yearly by the owner or central booking agent on January 1 with the Planning Division as to the following information: a. Who the owner or owners have been over the last year; b. How many nights out of the year the unit was available for rent through the central reservation and check-in service; and c. How many nights out of the year the unit was rented out as an overnight lodging facility under DCC 18.113. The Board finds that in complying with each of the five stated requirements, which establish a mechanism to ensure that individually owned units counting toward the overnight lodging total remain available for rent for at least 45 weeks per calendar year through a central reservation and check-in service, Applicant will comply with this criterion. However, opponents contended that the "mechanism" required by this criterion is not adequately described by Applicant. In response, Applicant suggested a condition of approval, which the Board accepts, requiring that Applicant, its successors and assigns, maintain a registry of the individually owned units subject to a deed restriction under this criterion; an office in a convenient location as a reservation and check-in facility at the resort; and a separate telephone reservation line and website in the name of "Thornburgh Resort" to be used by members of the public to make reservations. In lieu of or in addition to the telephone reservation line and website, Applicant may enter into an agreement with a booking agent that specializes in the rental or time-sharing of resort property, providing that Applicant will share the information in the registry and cooperate with the booking agent to solicit reservations for available overnight lodging at the resort. If Applicant contracts with a booking agent, Applicant and the booking agent shall cooperate in filing the report required under subsection 5 of this section. As noted above, the Board interprets this criterion itself to describe a mechanism to ensure that individually owned units counting toward the overnight lodging total remain available for rent for at least 45 weeks per calendar year. With the imposition of the condition of approval suggested by Applicant, this criterion is met. Page 86 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-151 Exhibit 124 Page 8 of 8 STATEMENT OF SPECIFIC REASONS FOR APPEAL BY NUNZIE GOULD THORNBURGH RESORT TENTATIVE PLAN AND SITE PLAN APPLICATIONS APPEAL OF OCTOBER 30 AND NOVEMBER 2, 2018 HEARINGS OFFICER DECISION FILE NOS. 247-18-000386-TP/454-SP/542-MA The decision of the Hearings Officer on the above applications is incorrect and Appellant Annunziata Gould ("Appellant"), who participated in the proceedings below, requests that the Board review and reverse the Hearings Officer's decisions. This appeal is timely where the decision was mailed on October 30, 2018 and a corrected decision was mailed November 2. The appeal is due November 14. As explained below, Appellant requests de novo review. There is a dispute regarding the end date of the 150-day period and it is the Applicant's position that the tentative plan 150-day deadline ends on November 8. That is not correct where all the applications are inter-related, the Applicant filed a modification which extended the deadline and the Applicant at the hearings, not Appellant, requested two-week follow-up comment periods. To avoid potential mandamus litigation in circuit court and associated potential attorneys' fees, the County decided to make a final decision before the 150-day deadline. I.STANDARD OF REVIEW The tentative plan and site plans did not comply with what is required by the first phase of a destination resort. A fundamental requirement is that the tentative plan and site plans must follow the provisions of the Final Master Plan ("FMP"). DCC 18.l 13.040(C) provides: "Site Plan Review. Each element or aeveiopment phase of the destination resort must receive additional approval through the required site plan review (DCC 18.124) or subdivision process (DCC Title 17). In addition to findings satisfying the site plan or subdivision criteria, findings shall be made that the specific development proposal complies with the standards and criteria of DCC 18.113 and the FMP." As found by the Hearings Officer at page 20 of his decision, DCC 18.113.080 and Condition of Approval #1 also require evaluating whether a tentative plan conforms to the final master plan ("FMP") of the resort. If not, a new or a modified application is required if there is a substantial change. DCC 18.113.080 explains that a substantial change to a destination resort CMP is one that alters "the type, scale, location, phasing or other characteristic of the proposed development such that the findings of fact on which the original approval was based would be materially affected." FMP Condition of Approval #1 provides that "[a]ny substantial change to the approved plan will require a new application." 1 LUBA 2018-140 Record - Page 0002 Exhibit 125 Page 1 of 3 \ Further, though the Hearings Officer apparently recognized that the Applicant's proposals for these matters were, in fact, deficient, he did not reject the proposal but instead came up with conditions of approval which are themselves not adequate. Condition of Approval #3 merely states that "clear vision areas" shall be maintained without defining what that is. A left-tum lane is provided for northbound Cline Falls Road for the main access but not for the other access despite for the special needs of large construction vehicles that are slow to stop and require a big turning radius. The Bennett Road access drive off Cline Falls Road is also not addressed in a traffic study. The Hearings Officer at page 55 of his decision describes it as "an emergency access road only" and requires signs to be posted "for emergency access only." The Applicant's maps, however, show the road connecting with residential areas and it will be used for construction traffic. B. Water Issues 1.Quantity Issues The Hearings Officer has inappropriately allowed the Applicant to make significant changes in the FMP water mitigation requirements without going through a required modification process. The Hearings Officer avoided the required mitigation process by concluding that the Applicant's changes are not "substantial." He reached this conclusion despite clear numerical and timing changes from what was adopted in the CMP/FMP, including the reduction of mitigation water in Phase A from 610 AF to 203 AF (and down to only 50 AF in this sub-phase of Phase A) and the elimination of the provision for all mitigation water to be provided in Phases A and B. The Hearings Officer's justification at pages 27-28 of his decision for these and other changes is that "the resort phasing plan largely was conceptual," the references to specific dates and numbers "were not intended to lock in a certain development pattern," and the primary focus of the Fish and Wildlife Management Plan ("FWMP") was mitigating when use of water occurred. The Hearings Officer asserts that the water mitigation was intended just to follow Oregon Water Resources Department ("OWRD") rules and whatever OWRD later approved. These findings do not jive with the language of the FWMP Addendum which is very specific as to mitigation requirements. The FMP Condition of Approval #38 specifically required compliance with the FWMP Addendum: "The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of off-site mitigation efforts." The enforceability of the FWMP Addendum was also addressed by LUBA in Gould v. Deschutes County, 59 Or LUBA 435, 458-459 (2009), which confirmed it is enforceable as a condition of approval. Essentially, the Applicant promised a number of things upfront in order to get approval of the CMP/FMP and now, having gotten the approval, wants to renege on what it initially offered. 10 LUBA 2018-140 Record - Page 0011 Exhibit 125 Page 2 of 3 That is not appropriate and certainly cannot be done without complying with the rules providing that a modification process should be followed. The Hearings Officer at page 28 of his decision states that opponents don't argue that failure to meet the timelines in the original IDP is itself a violation but rather that the Applicant has to "start over" because it missed some timeframes. The county process does not require a "start over" but it does require that a modification be filed. It is in that process where justification for the changes is assessed. The Applicant and Hearings Officer cannot supplant that process within ad hoc amendment being made in the context of a tentative plat application. The not-applied-for modification is based on a July of 2018, approval by the OWRD of a request by the Applicant "to modify the incremental development plan for Permit G-17036." That change is significantly different from what had been utilized and adopted in the CMP/FMP, including: 1)The original mitigation plan was for 610 Acre Feet ("AF") in Phase A and 1,201 AFin Phase B. (See Ex. 2 to our September 11 letter, pp. 4-6) 2)The original mitigation was also to "be provided in advance for the full amount ofwater to be pumped under each phase of development." (Ex. 2, p. 4) 3)The sources of the mitigation water were identified as COID and Big Falls Ranch. The new OWRD mitigation plan that was proposed to be adopted as part of this tentative plan application is not oriented to any particular phase, but rather to time periods. It includes: "2013-2019 3.6 AF 2020-2024 315.8 AF 2025-2029 212.0 AF 2030-2034 515.5 AF" Though not stated in the OWRD letter or anywhere else identified for the FMP, the Applicant stated without foundation that the amount of mitigation required for the development to be allowed under the current tentative plan application is 50 AF. (Fancher letter, p. 4) The Applicant's attorney further added: "The full amount of this mitigation is only required as full pumping is achieved. This won't occur until all cabins and facilities within the phase are constructed and in use." (Fancher letter, p. 4) (Emphasis added.) The approved Mitigation Plan required mitigation to be provided in advance of the development of Phase A and Phase B. The Addendum provided in part: "The amount and timing of water needs for the Resort are tied to a phased development plan. Water needs were estimated for the first phase (Phase A) and for total resort build-out, as shown below. 11 LUBA 2018-140 Record - Page 0012 Exhibit 125 Page 3 of 3 Vancouvercenter | 700 Washington Street | Suite 701 | Vancouver, WA | 98660 | M 360-694-7551 | F 360-693-5574 | schwabe.com Kenneth Katzaroff Admitted in Washington and Oregon T: 206-405-1985 C: 206-755-2011 KKatzaroff@SCHWABE.com November 19, 2021 VIA E-MAIL Hearings Officer Frank c/o Angie Brewer, Senior Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE: Deschutes County File Nos. 247-21-000508-SP; -849-A. Our File No.: 135849-262760 Dear Hearings Officer Frank: Our office is co-counsel with Liz Fancher for the applicant (“Thornburgh”) in the above-referenced matters. This letter constitutes Thornburgh’s rebuttal submittal and includes new evidence to respond to issues and evidence submitted during the open record period. Unless otherwise specified, any abbreviations correlate to those from applicant’s previous submittals. 1. BOCC on Water Appellant Gould continues to muddy the water by arguing that Thornburgh’s various water permits are being challenged, are “expired” (which is incorrect), or that there is some other defect in Thornburgh’s compliance with FMP and FWMP requirements. Appellant Gould is incorrect and we will address this issue, again, in our final legal argument. Further, the BOCC has routinely opined on water requirements as it relates to Deschutes County Code standards or those of this particular resort. In its hearing on August 12, 2020 (full transcript in relevant part included as Exhibit 26), the BOCC address Condition 10: Will Groves: That takes us to number 10 and this has to do if the proposal complies with final master plan condition #10 and that provision requires that the applicant shall provide at the time a tentative plan and site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation required under the water rights for that individual phase. This is really I think kind of the core of what the opponents and the applicants are arguing about. The opponents argue that although the resort holds a permit which hasn’t been cancelled that the Exhibit 126 Page 1 of 204 Hearings Officer Frank November 19, 2021 Page 2 permit hasn’t been properly extended and the applicant has admitted that an extension is needed before they can use the permit. … So the applicant takes the position generally speaking that they have in fact provided accounting compliant with condition 10. Opposition argues that some of the underlying permits are in doubt and that the water needs of the resort are more complicated than previously accounted for. Staff has recommended here for the board to consider whether to direct staff in a decision generally in accordance with the applicant’s arguments or in some other direction. Anthony DeBone: So I’ve been through a few decisions over the years now and when it comes to water we have you know it talks about the mitigation debit table and the permitting and everything. Water is controlled by the state there’s Oregon water resources department and if water is not available or appropriated it will be obvious so the paperwork associated with this application is in order through the previous steps. So I mean I always… so then I take water and kind of separate it to the other entity that does water, which is the state and knowing that if things aren’t in order it’s not going to proceed so it’s not a decision point as much for us. It’s part of the application process to make sure that items are in order and are gonna be in order. But it’s not a stopping point at this time I would conclude. There aren’t any specific cases on this, well it’s kind of surprising to me that there aren’t. There’s this whole like list of steps that they’re saying haven’t been done, it’s been expired it hasn’t been used, aren’t there other cases where that’s been brought up? It’s kind of obvious you need water to have a … Will Groves: I think there are a couple factors involved here. The first is that most of this happens kind of as a black box outside the County. So in previous county approvals for similar developments there’s been a, we’ve just assumed that water would turn out correctly and that you know to the extent that there was a state letter that says you know water rights are available that was the level of our inquiry. In this case because there have been lawyered and dedicated opponents throughout I think there is additional scrutiny on this question and I think that lawyered opponents have been interested in trying to draw the board into litigating how water rights work. And you know the applicant’s argument to the contrary would be to say this is something that’s dealt with by water resources. You know the board is obliged certainly to make sure that generally water is available and accounted for but the specific details of how the permits are issued or not issued or extended is something that’s outside the board’s level of concern. Phil Henderson: I think I agree with commissioner DeBone on this. Patty Adair: So we’ll quote you on that – outside our level of concern. Exhibit 126 Page 2 of 204 Hearings Officer Frank November 19, 2021 Page 3 Anthony DeBone: Well, it’s a big issue but it’s a reference point to this application. It’s not our domain for decision. Patti Adair: Exactly well, but we have heard from a lot of community members that are you know feeling very impacted by our water table. Phil Henderson: I was reading some of the stuff on this topic last night and I was thinking that that’s everybody’s conclusion is we’re in a water shortage and therefore we shouldn’t you what they’re saying is we shouldn’t do golf courses in a water shortage basically and but that kind of even goes back to that concept of a drought. We declared a drought because Wickiup was not full to serve Madras farmers at North Unit. It wasn’t because we had a water shortage right here right now, it was up in the valley, it was a surface water shortage, not a groundwater. So this is a groundwater source I think is a big part of this so, it’s different. Will Groves: I think to that point the applicant materials make clear is this was something that was evaluated in the final and conceptual master plan. When mitigation plans are put together at least at the time the board agreed and agencies agreed that the golf course on the whole was, well certainly they’re going to put a straw in the ground and pull a lot of water out, and so other water was allocated to offset that loss. That was chosen in part you know to make sure that fish and wildlife resources are maintained and improved. But this is the issue of will the golf course’s water uses be adequately offset by mitigating other water back in stream and taking other water rights offline and the applicant would argue that decision was made in the final and conceptual master plan. Phil Henderson: And they showed that process, they showed how that would be done to the agreement in the master plan? Will Groves: That’s correct. Patti Adair: Well they really seemed like they were very aware of water even back when they were planning it and with the concept that they weren’t planning on like a green soaked course. That isn’t what I was reading in all of the documents. They were aware that we are in a high desert and you know water is gold so you can’t waste it. Will Groves: Alright thank you commissioners I appreciate your time today. . . Emphasis added. Exhibit 126 Page 3 of 204 Hearings Officer Frank November 19, 2021 Page 4 2. Appellant’s Continued Arguments Related to Condition 10 and Condition 38 Appellant Gould submits substantial sections of the FWMP (and the entire document) in an attempt to argue that Condition 10 and Condition 38 are interdependent and inter-related. Appellant Gould has made this argument in multiple other proceedings only to have it rejected. For example, in its appeal of the BOCC’s Golf Course decision (Exhibit 2), this exact argument was raised and rejected by LUBA. This argument was further articulated in Appellant Gould’s Opening Brief to the Court of Appeals, who rejected it when they affirmed LUBA’s Order without a decision. A copy of the Opening Brief is included as Exhibit 27.1 This hearings officer should similarly reject this argument. Further, Appellant Gould seems to suggest that Thornburgh is noncompliant with the FWMP or is somehow abandoning it. It is not. We comply with the FWMP and Appellant Gould has not stated we do not – they merely seem to be attempting to make a point that Condition 10 somehow implicates Condition 38 (which it does not), and that water from Big Falls Ranch must be secured. Pinnacle Utilities, LLC, Thornburgh’s water utility, has already purchased 90 acres of the Big Falls Ranch Deep Canyon Creek water rights (162 acre feet of mitigation water) and assignments of those rights to Pinnacle are included as part of Exhibit 11. Pinnacle has also a binding agreement with Big Falls Ranch to purchase an additional 85 acres of its Deep Canyon Creek water rights (153 acre feet of mitigation water) when that mitigation is required based upon development of the Resort. Exhibit 28. A history of Thornburgh approvals that documents the history of the adoption and interpretation of Conditions 10 and 38 to respond to Appellant Gould’s regarding the meaning of these conditions is included as Exhibit 29. 3. Deschutes County Precipitation, Drought, and Water Appellant Gould claims that drought and climate change conditions have adversely affected the area. To support this claim, Appellant Gould submits a number of documents that lack attribution to any source. Appellant Gould further argues that groundwater modeling and the USGS modeling did not consider aspects of climate change. Lastly, Appellant Gould argues that drought risks have lowered water levels delivered to farmers and increased fire risks. Notwithstanding the fact that none of Appellant Gould’s arguments are related to applicable criteria, they are also factually suspect. With regards to drought conditions, the NOAA precipitation data for Deschutes County, since 1895, is submitted as Exhibit 30. The graphical representation shows extreme climate cycles, commensurate with testimony submitted from OWRD stating cyclical climate impacts to water resources. Importantly, Applicant points out that the FMP and FWMP were considered and 1 Contrast this with Thornburgh’s Answering Brief, Exhibit 16, which carried the day. Exhibit 126 Page 4 of 204 Hearings Officer Frank November 19, 2021 Page 5 adopted during a similar period of drought (2008), which is supported by Appellant Gould’s documents as well as the precipitation numbers from NOAA. Second, with regards to water deliveries to farmers, Thornburgh has no impact on water deliveries to farmers. Farmers, generally, receive water through irrigation districts which hold some of the Deschutes Basin’s most senior water rights. Over the past few years, the districts have been forced to release significant quantities of water during the winter storage season instead of storing water to release during the irrigation season to protect the habitat of the spotted frog. By one report, North Unit Irrigation District Farmers received eighty percent less water this season as a result of this. Exhibit 31. Although not relevant to applicable criteria, in response to Appellant Gould’s claims regarding drought and lack of water, as well as various testimony (including COLW’s filing of letters from ODFW), it may be prudent for the hearings officer to have additional background on the issues related to water in the Deschutes Basin. The primary reason there is currently a lack of water for farmers is because irrigation districts are releasing water during the winter months instead of storing it for irrigation season use. This is echoed by Commissioner Phil Henderson’s comments in the BOCC transcript, Exhibit 26. This is a surface water issue and is not related to Thornburgh’s groundwater use. It does not have any causal or other link to Thornburgh in any way. For example, OPB commented that “[t]here actually is enough water in the entirety of the Deschutes Basin to meet all these needs — from frogs to farming. But the allocation of that water and how to bring the upper river back to a healthy state is a conversation that’s been going on for years. . . . Irrigators agreed to increase water releases to 100 cubic feet per second in a temporary settlement last year. That's a notable increase from the 25 cubic feet per second in years past that left the river a mere trickle.” Exhibit 32. Bend Magazine also did a similar story, which includes helpful maps as to the river system. Exhibit 33. And, local news station KTVZ reported on August 17, 2021 that “[t]he current shortage is driven by an antiquated, inefficient, and wasteful irrigation system. The water users with first priority to the river are also the most inefficient. Irrigators in Deschutes County divert three times more water than Jefferson County farmers, even in this severe drought year.” Exhibit 34. In fact, Thornburgh has actually aided in restoring flows over the stretch of river from upstream of Bend to Lake Billy Chinook, including (but not limited to), the instream lease of what applicant refers to as the “LaBeau” water. Exhibit 35. Lastly, as it relates to fire, Condition 4 of the FMP requires emergency access and Condition 17 requires that the resort meet all fire protection requirements of the Redmond Fire Department. The Redmond Fire Department submitted comments on June 21, 2021 that all requirements were met. Exhibit 126 Page 5 of 204 Hearings Officer Frank November 19, 2021 Page 6 ODFW has already endorsed the Resort’s water mitigation as it relates to wildlife, including the FWMP, which is binding and cannot be collaterally attacked by the appellant. Exhibit 36. 4. BLM Approvals Appellant Gould argued at the Hearing and in her open record submittal received by the County on November 12, 2021, that Thornburgh has failed to meet commitments with the BLM. Not only are these claims irrelevant to the current proceeding, they are also incorrect. Thornburgh has filed construction drawings with the BLM and been told to proceed. Exhibit 37. BLM has also recently issued an amendment to its right-of-way grant to properly describe the property. Exhibit 38. 5. Response to COLW Lot of Record Argument COLW’s argued that the finding of the Board of Commissioners in the CMP approval that the entire Resort property is a lot of record may not be relied on by the County as a basis to approve development applications for the Resort. The applicant disagrees, but provided evidence that shows that all parts of the Resort property have also been determined to be or qualify to be verified as lots of record in land use actions prior to November 1, 2017. The parcels that have been found to be lots of record are excepted from the requirement to be verified prior to or during the review of this land use application. DCC 22.04.040(B)(2)(c). The two tax lots that have not been determined to be lots of record are Tax Lots 7801 and 8000. The applicant provided documentation to show that Tax Lots 7801 and 8000 are lots of record and provides the following more detailed discussion to show that each qualify as lots of record. The approximate location of these tax lots is depicted on the following page: Exhibit 126 Page 6 of 204 Hearings Officer Frank November 19, 2021 Page 7 State Law and County’s Interpretation of Local Lot of Record Rules Pursuant to ORS 92.017, once a lot or parcel is lawfully created it remains a separate and distinct, lawful lot or parcel with limited exceptions. ORS 92.017 protects historic lots and parcel created by deeds, as well as lots and parcels created by subdivisions and partitions, from being consolidated into a single lot or parcel due to common ownership or conveyance on a subsequent deed. ORS 92.017 provides that a "lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law." Affirmative action to eliminate lot boundaries by platting or through vacation proceedings is required. Weyerhaeuser Real Estate Development Co. v. Polk County, 246 Or App 548 (2011)(recorded partition plat approved under law in effect in early 1983 vacated historic lot lines for lots shown on partition plat; discusses acts that eliminate lot lines); Kishpaugh v. Clackamas County, 24 Or LUBA 164, 172 (1992)(ORS 92.017 requires counties to recognize lawfully created lots and parcels "until some action is taken to erase the lawfully-established property lines"). In Deschutes County, deeds and patent deeds recorded prior to April 5, 1977 created separate and distinct lots or parcels upon recording. Subsequent conveyances of a lot or parcel with other properties in a single deed do not consolidate lawfully created lots unless the county has approved a lot consolidation application. The County has applied this rule to numerous, prior legal lot of record determination cases, including the Board’s approval of the Tumalo Irrigation District application. The Board’s interpretation was upheld by LUBA in the case of Central Oregon Landwatch v. Deschutes County (Tumalo Irrigation District), 75 Or LUBA 328 (2017). Exhibit 126 Page 7 of 204 Hearings Officer Frank November 19, 2021 Page 8 We have searched the chain of title for the subject properties. We have also reviewed County land use records, surveyor's records of partitions, subdivisions and surveys and County Clerk deed records. The parcel lines of Tax Lot 8000 and Tax Lot 7801 have not been vacated. The parcels, also, have not been further divided as provided by law. Deschutes County Lot of Record Definition Tax Lots 7901 and 8000 meet the definition of a lot of record provided by DCC 18.04.030. The applicable sections of DCC 18.04.030 that define lots of record are: "Lot of Record" means: A. A lot or parcel at least 5,000 square feet in area and at least 50 feet wide, which conformed to all zoning and subdivision or partition requirements, if any, in effect on the date the lot or parcel was created, and which was created by any of the following means: Response: Each of the lots of record are at least 5,000 square feet in area and at least 50 feet wide. According to the Tax Assessor, Tax Lot 8000 is approximately 156.27 acres and Tax Lot 7801 is approximately 38.76 acres in size. Findings demonstrating compliance with zoning and land division requirements, where applicable, are provided below. 1. By partitioning land as defined in ORS 92; Response: A County partition approval, (Exhibit D of Exhibit 39), depicts and recognizes Tax Lot 7801 as a single unit of land. This approval did not partition land as the term is defined by ORS 92, however, because it did not divide land. The single parcel depicted on the partition plan (now Tax Lot 7801) already existed as a lawfully created parcel as explained below. ORS 92.010 (9) says: (9) “Partitioning land” means dividing land to create not more than three parcels of land within a calendar year, but does not include ***” 3. By deed or contract, dated and signed by the parties to the transaction, containing a separate legal description of the lot or parcel, and recorded in Deschutes County if recording of the instrument was required on the date of the conveyance. If such instrument contains more than one legal description, only one lot of record shall be recognized unless the legal descriptions describe lots subject to a recorded subdivision or town plat; Response: Deschutes County adopted partition regulations in 1977. These regulations were effective on or about April 5, 1977. It was lawful to create lots or parcels by deed prior to this date. Both lots of record were created by deeds prior to this date. Tax Lot Exhibit 126 Page 8 of 204 Hearings Officer Frank November 19, 2021 Page 9 8000 was created on April 18, 1910 by the issuance of a patent by the USA to Lorenzo S. Thomas that is recorded at 1 Patent 532 of the patent records of the Deschutes County Clerk (Exhibit 40). Tax Lot 7801 was created on April 30, 1918 by a deed from the State of Oregon to John Park recorded at Volume 23, page 256 of the deed records of the Deschutes County Clerk (Exhibit 39, Ex C). Neither of the lots created by deed were subject to minimum lot sizes on the date of the creation. B. Notwithstanding subsection (A), a lot or parcel validated pursuant to ORS 92.176 shall be recognized as a lot of record. Response: Neither lot of record was created pursuant to ORS 92.176. C. The following shall not be deemed to be a lot of record: 1. A lot or parcel created solely by a tax lot segregation because of an assessor's roll change or for the convenience of the assessor. 2. A lot or parcel created by an intervening section or township line or right of way. 3. A lot or parcel created by an unrecorded subdivision, unless the lot or parcel was conveyed subject to DCC 18.04.030(A)(3). 4. A parcel created by the foreclosure of a security interest. Response: Neither lot of record was created by any of these means. 6. Appeal of Golf Course Site Plan Approval to Supreme Court Appellant Gould has indicated that this hearings officer should not rely upon interpretations made by LUBA in upholding the BOCC’s Golf Course decision (LUBA No. 2021-095), which was affirmed without an opinion by the Court of Appeals. 314 Or App 636 (2021)(A176353). As an initial point, Thornburgh has previously submitted its Answering Brief for that case. See Exhibit 16. In response to Appellant Gould’s claims that an appeal to the Supreme Court will be filed, we submit Appellant Gould’s Opening Brief as Exhibit 27. Interestingly, in that case, Appellant Gould also argued that Condition 10 had not been satisfied and that there was no “assurance that the permit in question will ultimately be extended” (Exhibit 27, p. 22 (p. 17 of brief)), and that Thornburgh had to specifically “prove up” mitigation water related to the no net loss standard. The Court of Appeals rejected those arguments when it affirmed LUBA’s decision. The arguments presented in that case were the same that Appellant Gould attempts to raise here. The hearings officer should not come to a different interpretation or result than adopted by the BOCC, LUBA, and the Court of Appeals. Appellant Gould’s hope that the Supreme Court of Oregon might accept discretionary review is also misplaced. The Supreme Court reviews a series of factors when considering to accept discretionary review. Exhibit 41. These criteria include, for example, (1) whether the case Exhibit 126 Page 9 of 204 Hearings Officer Frank November 19, 2021 Page 10 presents a “significant issue of law in the interpretation” of the constitution, a statute, or the legality of an important action; (2) whether similar issue arises often; (3) whether many people are affected by the decision; (4) whether the legal issue is an issue of state law; and (5) whether the Court of Appeal issued an opinion. The interpretation of a Condition 10 does warrant review by the Supreme Court when the BOCC, LUBA, and the Court of Appeals have all concluded the same interpretation is legally correct. Respectfully submitted this 19th day of November, 2021. Very truly yours, SCHWABE, WILLIAMSON & WYATT, P.C. Kenneth Katzaroff PDX\135849\262760\JKKA\32299635.1 Exhibit 126 Page 10 of 204 EVIDENCE FOR INCLUSION IN THE RECORD FILE 247-21-000508-SP/247-21-000 Updated 11.19.2021 Central Land is filing the following evidence in the record of its application seeking site plan approval to build 80 overnight lodging unit (OLU) to address issues raised by Annunziata Gould. Exhibit Description of Exhibit 1 Decision Approving Phase A-1 Tentative Plan, File 247-18-000386-TP/454-SP/592-MA (relevant parts) 2 BOCC Decision Thornburgh Golf Course, File 247-19-000881-SP (without Exhibit B) 3 BOCC Decision Thornburgh CMP Decision, File CU-05-5, DC 2006-151 (part) 4 Deed recorded at 2021-44813 5 Deed recorded at 2021-50325 6 Illustration of Lot Line Adjustment between TL 7800 and 7900 7 BOCC Decision for Tumalo Irrigation District, File 247-17-000775-ZC/-776-PA (relevant part) 8 Hearings Officer’s Decision for Phase A-1 Tentative Plan on Remand, 247-21- 000731-A 9 BOCC Order declining review of Phase A-1 Tentative Plan on Remand, 247-21- 000731-A 10 Fish and Wildlife Mitigation Plan, Addendum April 21, 2008 (FWMP) 11 Central Land’s Final Argument for 247-21-000731-A with its exhibits by Liz Fancher 12 FMP Decision dated October 6, 2008 by Hearings Officer Briggs (conditions of approval and findings re FWMP) 13 Letter from Janet Neuman to Gregory Frank dated September 14, 2021 14 Central Land’s Final Argument for 247-21-000731-A by Kameron DeLashmutt 15 Central Land’s Final Argument Response to John Lambie for 247-21-000731-A with its exhibits 16 Answering Brief by Central Land before Oregon Court of Appeals (golf course) 17 OWRD Permit Query re Thornburgh water permit G-17036 on November 2, 2021 18 OWRD Email of December 24, 2019 re golf course site plan and July 8, 2020 letter from Janet Neuman to BOCC 19 Memorandum from David Newton, P.E., C.E.G. dated August 24, 2021 re Impact of Well Site Relocations 20 Memorandum from David Newton, P.E., C.E.G. dated November 11, 2021 21 Notice of Proposed Hearing 22 BOCC Decision – Condition 38 Findings 23 Decisions and DCC 18.113.020 Findings 24 Letter from K DeLashmutt Dated September 7, 2021, Detailing Owned Water Rights 25 Site Plan Approval and Condition C Exhibit 126 Page 11 of 204 26 BOCC Discussion on Water and Condition 10 27 Opening Brief for A176353 (Golf Course Appeal to Court of Appeals) 28 Big Falls Ranch Memorandum of Agreement 29 Timeline of Approvals and Interpretation of Condition 10 & 38 30 NOAA Precipitation Data 31 Farmers Explore Changing Frog Rules 32 Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB 33 The Deschutes Basin's Last Great Problem – Bend Magazine 34 KTVZ – C.O. Farmers 35 LaBeau Instream Lease 36 ODFW Letter dated June 13, 2008 37 BLM Construction Drawings 38 BLM ROW Grant 39 Lot of Record Information 40 Patent Record recorded at 1 Pat 532 (Deschutes County Clerk) 41 ORAPs Exhibit 126 Page 12 of 204 1 - PDX\135849\262760\JKKA\32294893.1 August 12, 2020 Board of Commissioners – BOCC Wednesday Meeting Consideration of Golf Course Site Plan Will Groves: That takes us to number 10 and this has to do if the proposal complies with final master plan condition #10 and that provision requires that the applicant shall provide at the time a tentative plan and site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation required under the water rights for that individual phase. This is really I think kind of the core of what the opponents and the applicants are arguing about. The opponents argue that although the resort holds a permit which hasn’t been cancelled that the permit hasn’t been properly extended and the applicant has admitted that an extension is needed before they can use the permit. They are concerned that there is currently insufficient water available for the resort for the proposed use and certainly not enough for what the application proposes. And they have specific challenges to the water accounting because it neglected water required for reservoir evaporation, construction dust suppression and irrigation issues that might be related to having a golf course in the High Desert. The applicant responds that their Exhibit AA the mitigation debit table shows the mitigation required for this phase and that they looked to the Board’s decision in the prior tentative plan where the hearing’s officer found that Condition 10 was primarily an informational requirement and a requirement for accounting of the mitigation needed at the water right and that the Board in that tentative plan decision remand also noted that the mitigation would be required before pumping water at each phase. So staff notes that the applicant table AA the mitigation debit table… oh they note that staff in the tentative plan noted that AA the mitigation debit table detailed the amount that was needed and was consistent with the Board’s direction. So the applicant takes the position generally speaking that they have in fact provided accounting compliant with condition 10. Opposition argues that some of the underlying permits are in doubt and that the water needs of the resort are more complicated than previously accounted for. Staff has recommended here for the board to consider whether to direct staff in a decision generally in accordance with the applicant’s arguments or in some other direction. Anthony DeBone: So I’ve been through a few decisions over the years now and when it comes to water we have you know it talks about the mitigation debit table and the permitting and everything. Water is controlled by the state there’s Oregon water resources department and if water is not available or appropriated it will be obvious so the paperwork associated with this application is in order through the previous steps. So I mean I always… so then I take water and kind of separate it to the other entity that does water, which is the state and knowing that if things aren’t in order it’s not going to proceed so it’s not a decision point as much for us. It’s part of the application process to make sure that items are in order and are gonna be in order. But it’s not a stopping point at this time I would conclude. There aren’t any specific cases on this, well it’s kind of surprising to me that there aren’t. There’s this whole like list of steps that they’re saying haven’t been done, it’s been expired it hasn’t been used, aren’t there other cases where that’s been brought up? It’s kind of obvious you need water to have a … Exhibit 26 Page 1 of 3 Exhibit 126 Page 13 of 204 2 - PDX\135849\262760\JKKA\32294893.1 Will Groves: I think there are a couple factors involved here. The first is that most of this happens kind of as a black box outside the County. So in previous county approvals for similar developments there’s been a, we’ve just assumed that water would turn out correctly and that you know to the extent that there was a state letter that says you know water rights are available that was the level of our inquiry. In this case because there have been lawyered and dedicated opponents throughout I think there is additional scrutiny on this question and I think that lawyered opponents have been interested in trying to draw the board into litigating how water rights work. And you know the applicant’s argument to the contrary would be to say this is something that’s dealt with by water resources. You know the board is obliged certainly to make sure that generally water is available and accounted for but the specific details of how the permits are issued or not issued or extended is something that’s outside the board’s level of concern. Phil Henderson: I think I agree with commissioner DeBone on this. Patty Adair: So we’ll quote you on that – outside our level of concern. Anthony DeBone: Well, it’s a big issue but it’s a reference point to this application. It’s not our domain for decision. Patti Adair: Exactly well, but we have heard from a lot of community members that are you know feeling very impacted by our water table. Phil Henderson: I was reading some of the stuff on this topic last night and I was thinking that that’s everybody’s conclusion is we’re in a water shortage and therefore we shouldn’t you what they’re saying is we shouldn’t do golf courses in a water shortage basically and but that kind of even goes back to that concept of a drought. We declared a drought because Wickiup was not full to serve Madras farmers at North Unit. It wasn’t because we had a water shortage right here right now, it was up in the valley, it was a surface water shortage, not a groundwater. So this is a groundwater source I think is a big part of this so, it’s different. Will Groves: I think to that point the applicant materials make clear is this was something that was evaluated in the final and conceptual master plan. When mitigation plans are put together at least at the time the board agreed and agencies agreed that the golf course on the whole was, well certainly they’re going to put a straw in the ground and pull a lot of water out, and so other water was allocated to offset that loss. That was chosen in part you know to make sure that fish and wildlife resources are maintained and improved. But this is the issue of will the golf course’s water uses be adequately offset by mitigating other water back in stream and taking other water rights offline and the applicant would argue that decision was made in the final and conceptual master plan. Phil Henderson: And they showed that process, they showed how that would be done to the agreement in the master plan? Will Groves: That’s correct. Patti Adair: Well they really seemed like they were very aware of water even back when they were planning it and with the concept that they weren’t planning on like a green soaked course. Exhibit 26 Page 2 of 3 Exhibit 126 Page 14 of 204 3 - PDX\135849\262760\JKKA\32294893.1 That isn’t what I was reading in all of the documents. They were aware that we are in a high desert and you know water is gold so you can’t waste it. Will Groves: Alright thank you commissioners I appreciate your time today. I know this is a lot of material to wade through, over 2,000 pages of record material and the applicants counting over 120 points of contention. I appreciate your efforts and focus. Based on your directions staff will work with the applicant as the presumably prevailing party to draft a decision that we are looking to bring back to you on the 26th with an understanding that that decision will have more scrutiny than our usual drafts that we bring back to you as it will provide a focus on some of the materials that had sort of incomplete deliberation today so I definitely appreciate your time. Patti Adair: As soon as it is available, if it’s before the 26th that would be excellent to give us a little more time to review it. I mean if it’s the 25th or whatever, I would appreciate that. Will Groves: Oh for sure. This will be, in order for us to work on the 25th it would need to be available to you on the 20th at the latest, so I’ll make sure that that’s hand delivered to you on the 20th. The other circumstance would be that the applicant provides more time to work on this at which point our timeline would be extended. But anticipate this right now as a draft to you on the 20th or before and potential decision adoption on the 26th. Exhibit 26 Page 3 of 3 Exhibit 126 Page 15 of 204 IN THE COURT OF APPEALS OF THE STATE OF OREGON ANNUNZIATA GOULD and PAUL J. LIPSCOMB, Petitioners, v. DESCHUTES COUNTY and KAMERON K. DELASHMUTT Respondents. Land Use Board of Appeals 2020095 A176353 ______________________________________________________________ OPENING BRIEF OF PETITIONER ANNUNZIATA GOULD AND EXCERPT OF RECORD (EXPEDITED PROCEEDING UNDER ORS 197.850 and ORS 197.855)_____________________________________________________________ Appeal from the Final Opinion and Order of the Land Use Board of Appeals dated June 11, 2021 _____________________________________________________________________ Jeffrey L. Kleinman, Esq., OSB #7437261207 SW Sixth Avenue Portland, OR 97204 Phone: (503) 248-0808 Email: KleinmanJL@aol.com Attorney for Petitioner Annunziata Gould Paul Lipscomb, Esq., OSB #752301PO Box 579 Sisters, OR 97759 Phone: (503) 551-7272 Email: judgelipscomb@gmail.com Petitioner Paul Lipscomb (Continued on reverse side)July 2021 July 22, 2021 12:07 AM Exhibit 27 Page 1 of 53 Exhibit 126 Page 16 of 204 David Adam Smith, Esq., OSB #170317Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Email: adam.smith@deschutes.org Attorney for Respondent Deschutes County J. Kenneth Katzaroff, Esq., OSB #143550 U.S. Bank Centre1420 5th Avenue, Suite 3400 Seattle, WA 98101 Phone: (206) 405-1985 email: kkatzaroff@schwabe.com Attorney for Respondent Kameron K. Delashmutt Exhibit 27 Page 2 of 53 Exhibit 126 Page 17 of 204 i TABLE OF CONTENTS I. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Nature of the Proceeding and Relief Sought. . . . . . . . . . . . . . . 1 B. Nature of the Agency Order for which Relief Is Sought. . . . . 2 C. Statutory Basis of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Effective Date of LUBA’s Order.. . . . . . . . . . . . . . . . . . . . . . . . 3 E. Questions Presented on Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . 3 F. Summary of Arguments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 G. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. FIRST ASSIGNMENT OF ERROR.. . . . . . . . . . . . . . . . . . . . . . . . . . 7 LUBA made errors of law and rendered a decision which was unlawful in substance in denying petitioner’s third assignment of error, relating to the applicant’s failure to provide the required, updated documentation for its state water right permit and an accounting of the full amount of mitigation, as required under that water right, for this phase of its destination resort. A. Preservation of Error.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Exhibit 27 Page 3 of 53 Exhibit 126 Page 18 of 204 ii TABLE OF AUTHORITIES Cases Gould v. Deschutes County, ___ OR LUBA ___ Final Opinion and Order, June 11, 2021.. . . . . . . . . . . . . . . . . . . . 1, 3, 6, 13, 15 Gould v. Deschutes County, 79 Or LUBA 561, 563-64 (2019), appeal dismissed, ___ Or App ___ (2019), rev’d and rem’d, 367 Or 427, 478 P3d 982 (2020), aff’d, 310 Or App 868, 484 P3d 1073 (2021).. . . . . . . . . . . . 4, 6, 13, 14, 20, 23 Gillette v. Lane County, 52 Or LUBA 1 (2006). . . . . . . . . . . . . . . . . . . . . . . . 17 Rhyne v. Multnomah County, 23 Or LUBA 442, 447 (1992).. . . . . . . . . . . . . 17 Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010). . . . . . . . . . . . . 14 Younger v. City of Portland, 305 Or 346, 752 P2d 262 (1988). . . . . . . . . . . . 19 Oregon Revised Statutes ORS 19.260(1)(a)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ORS 197.829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ORS 197.835(9)(a)(C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ORS 197.835(9)(a)(D).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15ORS 197.850(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ORS 197.850(3)(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ORS 197.850(8) and (9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Oregon Administrative Rules OAR 661-010-070(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Other Authorities Deschutes County Code 18.113.040(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Exhibit 27 Page 4 of 53 Exhibit 126 Page 19 of 204 iii INDEX OF EXCERPT OF RECORD LUBA’s Final Opinion and Order dated June 11, 2021. . . . . . . . . . . . . . . . . .ER 1-20 Exhibit 27 Page 5 of 53 Exhibit 126 Page 20 of 204 1 I. STATEMENT OF THE CASE A. Nature of the Proceeding and Relief Sought. Petitioner Annunziata Gould seeks judicial review of the Final Opinion and Order of the Land Use Board of Appeals in LUBA No. 2020-095, dated June 11, 2021 (“LUBA’s Order”), affirming the decision of respondent Deschutes County (the “county”) approving Site Plan Review for a portion of Phase A of the proposed Thornburgh destination resort (“resort”), in close proximity to the Eagle Crest resort in Deschutes County. This element includes a golf course and "artificial lakes." Petitioner seeks reversal or remand of the Order because LUBA erred in denying petitioner’s third assignment of error, relating to the county’s finding that the applicant had met its burden of proving compliance with a condition of approval contained in the adopted Final Master Plan for the resort relating to the availability of water both for consumption and for mitigation as to affected anadromous fish habitat. Petitioner asks that this court reverse LUBA’s Order, or remand this matter to LUBA for further consideration in light of the court’s ruling. A copy of LUBA’s Order is set out at ER 1-20. Exhibit 27 Page 6 of 53 Exhibit 126 Page 21 of 204 2 B. Nature of the Agency Order for which Relief Is Sought. LUBA’s Order affirmed the land use decision of the county’s board of commissioners entitled "Decision of the Deschutes County Board of County Commissioners, File Nos. 247-19-000881-SP, 247-20-000279-A, and 247-20-000282-A, Affirm Approval of Site Plan." That decision in turn involved the county board of commissioners’ affirmance of the county Community Development Department's findings and decision approving a Site Plan Review for the Phase A golf course of the Thornburgh Destination Resort, including lakes identified in the Conceptual Master Plan and Final Master Plan for the destination resort, and denial of appeals of said findings and decision filed by both petitioner and Central Oregon LandWatch. C. Statutory Basis of Jurisdiction. The court has jurisdiction over orders issued by the Land Use Board of Appeals pursuant to ORS 197.850(1). LUBA’s Order is a final order pursuant to OAR 661-010-070(1). Petitioner has standing because she appeared in the underlying proceeding before Deschutes County. As disclosed by both the LUBA record and the record the county filed with LUBA,1 she appeared orally and in writing, both directly and through her attorneys, Jeffrey L. Kleinman and 1For ease of reference, we cite to LUBA’s record transmittal to the court as “LUBA Rec” and to the county’s record transmittal to LUBA as “Rec”. Exhibit 27 Page 7 of 53 Exhibit 126 Page 22 of 204 3 Karl G. Anuta. Petitioner resides in close proximity to the proposed portion of the resort and would suffer significant adverse impacts, including but not limited to traffic impacts, from the approval of the within application. D. Effective Date of LUBA’s Order. LUBA’s Order was issued on June 11, 2021. ER 1. Petitioner timely filed and served her petition for judicial review on July 1, 2021, and timely re- served the petition on July 2, 2021. The petition for judicial review was timely filed under ORS 197.850(3)(a) and 19.260(1)(a)(B). E. Questions Presented on Appeal. Did LUBA err in denying petitioner's assignment of error challenging the county's approval of an application which failed to comply with Final Master Plan (“FMP”) Condition10, relating to the availability of water for consumptive use and for fish habitat mitigation, for development of this phase of the resort? F. Summary of Argument. LUBA made errors of law and issued an Order that is unlawful in substance in denying petitioner’s third assignment of error below. LUBA erred in upholding the county’s decision that the applicant had met its burden of proving compliance with Condition of Approval 10 of the resort’s approved Final Master Plan. Condition 10 requires the applicant to produce updated documentation for its state (Water Resources Department) water right permit, as Exhibit 27 Page 8 of 53 Exhibit 126 Page 23 of 204 4 well as an accounting of the full amount of required mitigation for drawing water under that permit, for each individual phase of the resort development. LUBA erred in holding that the applicant’s documentation of the water right permit was adequate even though the permit was past its expiration date, and the extension of that permit was the subject of an unresolved contested case proceeding before OWRD. LUBA also erred in its characterization of petitioner’s argument regarding the mitigation element of Condition 10, and in denying the portion of petitioner’s third assignment of error addressing it. G. Statement of Facts. The Thornburgh destination resort has had a lengthy history of applications and appeals, and remands ordered by LUBA and the Court of Appeals. The matters previously reviewed include a Conceptual Master Plan (“CMP”) and a Final Master Plan (“FMP”) for the resort as a whole. In this case, the application before the county was for the approval of the tentative plan and site plan for a portion, or “sub-phase,” of Phase A–the first phase of the resort development as designated in the FMP. LUBA described the pertinent background of this case in Gould v. Deschutes County, 79 Or LUBA 561, 563-64 (2019), appeal dismissed, ___ Or App ___ (2019), rev’d and rem’d, 367 Or 427, 478 P3d 982 (2020), aff’d, 310 Exhibit 27 Page 9 of 53 Exhibit 126 Page 24 of 204 5 Or App 868, 484 P3d 1073 (2021) (This case is referred to by LUBA as “Gould VIII”.): A destination resort is a "self-contained development providing visitor-oriented accommodations and developed recreational facilities in a setting with high natural amenities." Oregon Statewide Planning Goal 8 (Recreation); see also ORS 197.445 (providing similar destination resort definition). Local governments may plan for the siting of destination resorts on rural lands, subject to the provisions of state law. Id.; ORS 197.435-197.467. A destination resort may include residential dwellings,but the number of residential units is limited by the number of visitor-oriented overnight lodging units (OLUs), as explained further below. In 2006, the county approved the Thornburgh Resort conceptual master plan (CMP) and, in 2008, approved a final master plan (FMP).Those approvals were ultimately upheld after multiple rounds of appeals. This case is the eighth time that this land use dispute around the proposed Thornburgh Resort has been before this Board. * * * The subject property consists of approximately 1,970 acres of land zoned for exclusive farm use and mapped within the destination resortoverlay zone. The property was formerly used as a large ranch and is surrounded by public land managed by the US Bureau of Land Management (B.L.M.) and Oregon Department of State Lands. The FMP provides for phased development and fish and wildlife habitat mitigation (the mitigation plan) to offset the impacts of the resort development. The resort will include residential dwellings and OLUs.Recreational amenities will include two golf clubhouses, a recreation center, a spa and fitness center, and swimming pools and associated structures. Planned visitor-oriented facilities will include restaurants,convention facilities, business center, art gallery, and cultural center. The resort will include approximately 1,293 acres of open space, (approximately 66% of the entire acreage of the resort) planned as a golfcourse, common areas, and buffer areas. * * * The FMP divides the development into seven phases. The firstphase, Phase A, includes development of transportation infrastructure, Exhibit 27 Page 10 of 53 Exhibit 126 Page 25 of 204 6 golf course, restaurant meeting facilities, open space, 300 residentialunits, and 150 OLUs, with the first 50 OLUs to be constructed before any sale of residential lots, and financial assurance (bonding) for another 100 OLUs, and implementation of the mitigation plan. * * * In the present case, the applicant filed and the county’s board of commissioners approved a site plan for a golf course, two lakes, and a road system. LUBA referred to those collectively as the “golf course site plan.” ER 3. The golf course site plan is a component of “Phase A” of the resort. Id. Other elements of Phase A are included in a “sub-phase” termed “Phase A-1," the county’s approval of which was remanded by LUBA in Gould VIII.2 Petitioner filed her notice of intent to appeal with LUBA on September 16, 2020. LUBA Rec 373. Her petition for review appears at LUBA Rec 172- 323. Petitioner raised three assignments of error. This review proceeding relates to LUBA’s denial of petitioner’s third assignment of error: Respondent misinterpreted and misconstrued the applicable law, andfailed to make adequate findings supported by substantial evidence in finding that the applicant had met its burden of proving compliance with FMP Condition of Approval 10. LUBA Rec 194. Hon. Paul J. Lipscomb intervened on the side of petitioner before LUBA 2Phase A-1 includes “a tentative subdivision plat for 192 single-family residential dwelling lots, 24 single-family deed-restricted OLU [Overnight Lodging Unit] lots, and 13 OLU lots, together with roads, utility facilities, lots, and tracts for future resort facilities and open space.” ER-4. Exhibit 27 Page 11 of 53 Exhibit 126 Page 26 of 204 7 and filed his own brief. LUBA Rec 325-51. (He has also filed a separate petition for judicial review before this court, as well as a separate opening brief.) LUBA held oral argument on petitioner’s appeal on April 20, 2021. On June 11, 2021, LUBA issued its Order affirming the county’s decision. ER 1- 20. This appeal followed. II. FIRST ASSIGNMENT OF ERROR LUBA made errors of law and rendered a decision which was unlawful in substance in denying petitioner’s third assignment oferror, relating to the applicant’s failure to provide the required, updated documentation for its state water right permit and anaccounting of the full amount of mitigation, as required under that water right, for this phase of its destination resort. A. Preservation of Error. Petitioners raised and preserved the issues raised in this assignment before LUBA in their petition for review. LUBA Rec 194-206. B. Standard of Review. The Court of Appeals’ standard of review in appeals from LUBA is set out in ORS 197.850(8) and (9): (8) Judicial review of an order issued under ORS 197.830 to 197.845 shall be confined to the record. The court shall not substitute itsjudgment for that of the board as to any issue of fact. (9) The court may affirm, reverse or remand the order. The courtshall reverse or remand the order only if it finds: Exhibit 27 Page 12 of 53 Exhibit 126 Page 27 of 204 8 (a) The order to be unlawful in substance or procedure, but error inprocedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby; (b) The order to be unconstitutional; or (c) The order is not supported by substantial evidence in the whole record as to facts found by the board under ORS 197.835(2). C. Argument. 1. Availability of Water for Consumptive Use by the Resort. Condition of Approval 10 of the Final Master Plan governing the phased development of the Thornburgh resort provides as follow: 10. Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updateddocumentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase. This condition was adopted consistently with the requirements of relevant provisions of the Deschutes County Code (DCC) regarding siting of destination resorts. In particular, DCC 18.113.040(C) provides: C. Site Plan Review. Each element or development phase of the destination resort must receive additional approval throughthe required site plan review (DCC 18.124) or subdivision process (DCC Title 17). In addition to findings satisfying the site plan or subdivision criteria, findings shall be made that the specificdevelopment proposal complies with the standards and criteria of DCC 18.113 and the FMP. (Emphasis added.) In its Order, LUBA discussed the crucial role of an available source of Exhibit 27 Page 13 of 53 Exhibit 126 Page 28 of 204 9 water herein, as well as the legal status of that source: The golf course development will require water. There are no existing natural streams, ponds, wetlands, or riparian areas on the site. The resort water supply will be groundwater obtained from wells on the property. On April 3, 2013, OWRD issued intervenor a state water right permit, Permit G-17036, for a quasi-municipal use of groundwater, which authorized intervenor to drill six wells and pump groundwater for resort use, including the golf course and irrigation lakes. OWRD granted 2,129 acre-feet of water rights to support the resort development year-round. Under that water right, intervenor is responsible that completion ofconstruction of the resort water system and application of the water must be accomplished within five years, by April 3, 2018. Record 1696. On April 2, 2018, intervenor requested an extension of Permit G-17036 fromOWRD. On June 5, 2018, OWRD issued a proposed final order approving the extension. On July 20, 2018, petitioner filed a protest of the proposed final order and requested a contested case hearing. OnOctober 26, 2018, OWRD issued a final order allowing the permit extension without holding a contested case hearing. Record 1697. On January 31 , 2019, OWRD withdrew the October 26, 2018 final order andreferred petitioner's protest to the Office of Administrative Hearings for a contested case hearing. That contested case hearing was pending at the time of the county's decision on the golf course site review. ER 13-14. To flesh out the above points, we quote from petitioner’s petition for review before LUBA: Based upon the contents of the application, petitioner’s attorney, Karl Anuta, described the water requirements for the golf course and lakes (and addressed the status of the applicant’s OWRD permit), in asubmittal to the county on July 1, 2020: 1. The application seeks approval of a Golf Course, as well as * * *Reservoirs or Lakes. 2. The proposed project will also need water to reduce or abatedust during construction, for fire protection, to irrigate and create Exhibit 27 Page 14 of 53 Exhibit 126 Page 29 of 204 10 the Golf Course lawns (in the high desert), and to fill each of the ** * lakes currently proposed. Once filled, those lakes will then be used for irrigating the proposed Golf Course(s) further. 3. Golf course irrigation use in the Resort is projected to require up to 621 Gallons Per Minute (GPM) or 1.38 Cubic Feet per Second (CFS), and there is projected to be Peak Hour use of that type of as much as 1,862 GPM or 4.15 CFS. 4. Reservoir maintenance is projected to require up to an additional 57 GPM or .13 CFS. 5. Construction/Dust Abatement - which will be in highest demand early on - will require up to an additional 22 GPM or .06CFS. 6. The Fire Suppression system will require 2,250 GPM or 5.01CFS. 7. The permit currently held by the Resort had a Completion dateor C-date of April 3, 2018. 8. The Resort admits that it “will require an OWRD Extension ofTime” in order to be able to make use of the permit. 9. There is no currently issued Extension of that permit, as the Water Resources Department (WRD) Order dated January 31, 2019,withdrew the Extension Order. 10. WRD has again recently confirmed that no Extension currently exists. 11. Instead, as the Resort’s own counsel (Ms. Neuman) admitted during her argument at the Hearing, there is at best now only a “Proposed Final Order” and that proposed Order has beenchallenged and will be reviewed ultimately in a Contested Case before an Administrative Law Judge. Rec 1077-78 (footnotes and emphasis omitted). Exhibit 27 Page 15 of 53 Exhibit 126 Page 30 of 204 11 LUBA Rec 195-96. Petitioner argued before LUBA: The applicant had held a state water right permit, Permit G-17036, issued by the Oregon Water Resources Department (OWRD). That permit would, if still in effect, have allowed the applicant to drill six wells and to pump groundwater for use in its proposed resort. Rec 1690, 1698- 1720. The permit had an expiration date of April 3, 2018. Rec 1696-97. (OWRD Order Withdrawing Extension of Permit, Finding of Fact #1). The applicant requested an extension of the expiration date on Permit G-17036. Id., Finding of Fact #2. Petitioner timely opposed that request. Id., Finding of Fact #6. Although OWRD initially granted anextension, that extension was subsequently withdrawn by order dated January 31, 2019. Rec 1697. In withdrawing that extension, OWRD recognized that petitioner had raised “significant disputes” as to whetheran extension of the permit could be legally granted. Id., Conclusion of Law #2. FMP Condition 10 requires the applicant to provide “updated” documentation for the state water right permit. In its application, the applicant identified Permit G-17036 as the permit in question. Rec 2034. The applicant did not disclose that Permit G-17036 had expired by its own terms and that OWRD had withdrawn the previously issued extension of that permit. LUBA Rec 196-97. (Emphasis in original.) In submittals to the county, Mr. Anuta also stated: The Record in front of you shows that although the Resort holds a permit, which Ms. Neuman correctly notes has not yet been cancelled, that permit has expired and no extension of that permit currently exists.And the applicant has admitted that an Extension is needed, before it can use the permit. In short, there is currently insufficient water currently available to Exhibit 27 Page 16 of 53 Exhibit 126 Page 31 of 204 12 the Resort for the proposed use. There is certainly not enough to do whatthe application proposes. * * * Rec 1078. (Emphasis added.) Mr. Anuta further stated: When a person or company is issued a permit to appropriate water, by the Water Resources Department, that permit comes with a requirement that the permitee 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 withdrawnor used under that permit. That approach is the 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 hold (or speculate in) 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 useof it. A permit holder can, 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. Ms. Gould opposed, because under Oregon water law the permitee has to show that it put at least some water to use, or drilled wells, or constructed delivery works, or made some similar effort to physicallydivert or withdraw the water at issue, before the C-Date passes. We believe the evidence before the Water Resources Department will ultimately show that the Resort has not done any of that between theissuance of the permit and April 3, 2018. * * * Rec 1689. (Emphasis in original.) Exhibit 27 Page 17 of 53 Exhibit 126 Page 32 of 204 13 In addressing petitioner’s arguments, LUBA referred to its prior decision in Gould VIII, in which the status of the applicant’s OWRD permit was also questioned. ER 14-15. In that case, LUBA held that the applicant “had sufficiently documented its water right, notwithstanding petitioner's protest,” and that this court had upheld its decision. ER 15. However, LUBA failed to recognize the changes to the status of the applicant’s permit which had occurred during the period between the issuance of the hearings officer’s decision in Gould VIII and the county’s issuance of the decision appealed in this case. As petitioner argued to both the county and LUBA: The decision of the hearings officer in the prior appeal was based upon the record before him at the time. Similarly, LUBA held that the hearings officer did not err "based on the record before him." Gould v. Deschutes County, LUBA No. 2018-140 (Final Opinion and Order, 6/21/19, slip op 34). The facts have changed since the hearings officer issued his decision on October 30, 2018. As stated above, the decision isin error in accepting the applicant's response regarding the status of its water permit. OWRD has withdrawn its Final Order extending the permit, and issued a Final Order on Reconsideration. There is a pending contested case regarding the extension of the permit, and the outcome is not known. LUBA Rec 191. (Emphasis added.) The material changes in the facts following the county hearings officer’s 2018 decision, made “based on the record before him” in Gould VIII, are readily apparent. As of October 30, 2018, there was an OWRD order extending Exhibit 27 Page 18 of 53 Exhibit 126 Page 33 of 204 14 the groundwater permit past its expiration date. Thereafter, on January 31, 2019, OWRD withdrew that order. Then, the extension of that permit, fundamental to compliance with Condition 10 and to the availability of water for consumption by the resort, became the subject of an as yet unresolved contested case proceeding. In response to petitioner’s argument, LUBA noted the county’s finding below: The county concluded that Permit G-17036 remains an effective andvalid water right "unless and until cancelled by OWRD" and observed that OWRD's water rights information query showed the status of the permit as "non-cancelled." * * * ER 15. LUBA agreed with petitioner that the county’s “interpretation” of Condition 10 is not entitled to deference under ORS 197.829 and Siporen v. City of Medford, 349 Or 247, 259, 243 P3d 776 (2010). ER 16-17. Rather, the interpretation of that condition of approval is reviewed for legal error pursuant to ORS 197.835(9)(a)(D). ER 17. That provision provides in material part that “the board shall reverse or remand the land use decision under review if the board finds * * * [t]he local government or special district * * * [i]mproperly construed the applicable law * * *.” LUBA then applied that standard to the county’s decision, stating: As explained above, the county imposed Condition 10 to ensurecompliance with DCC 18.l 13.070(K), which requires intervenor to Exhibit 27 Page 19 of 53 Exhibit 126 Page 34 of 204 15 demonstrate that "[a]dequate water will be available for all proposed usesat the destination resort." Condition 10 requires intervenor to provide "updated documentation for the state water right permit." While the legal effect of the OWRD contested case hearing on intervenor's requested extension of Permit G-17036 is disputed, petitioner has not established that, as a matter of law, Permit G-17036 is not a valid water right. In that context, we cannot say that the county erred in finding that intervenor provided the required documentation for the state water right permit required by Condition 10. We conclude that the county did not err in finding that Condition 10 is satisfied by documentation that Permit G-17036 is not cancelled and an accounting of the amount of mitigationwater needed for the golf course site plan. ER 17-18. LUBA’s Order is unlawful in substance because it affirmed the county’s interpretation of Condition 10, determining that the county had not misconstrued the applicable law. ORS 197.835(9)(a)(D). We believe the best way to illustrate the board’s error is by way of analogy. If the county had been processing a fresh application for a destination resort, it would have required the applicant to prove up the availability of water for consumptive use under Deschutes County Code18.l 13.070(K). If the applicant lacked the requisite permit from OWRD, its application would almost certainly be denied. However, if it were sufficiently clear on the record of that proceeding that the applicant was likely to obtain the required permit if it could satisfy one or more contingencies, then the application could arguably be approved if conditioned upon the removal of those contingencies and the actual issuance of the permit. In that instance, no development activity would be permitted without evidence Exhibit 27 Page 20 of 53 Exhibit 126 Page 35 of 204 16 that the permit had in fact been issued. In this case, the applicant had obtained a permit for a water right several years earlier but, as LUBA pointed out, the permit contained a limitation: Under that water right, intervenor is responsible that [1] completion of construction of the resort water system and [2] application of the water must be accomplished within five years, by April 3, 2018. * * * ER 13-14. Neither of those things happened. As a result, the applicant was compelled to seek an extension of its water right from OWRD. As we have explained, there is now a contested case proceeding before OWRD with respect to that extension. While the permit may not literally be void or invalid at this point, it is clear from the record that the result of that proceeding may well be the denial of the requested extension. Should that occur, the applicant will be left with no water whatsoever for consumptive use, whether for the golf course and lakes proposed in this sub-phase, or for the residential dwellings and their lawns, or for the Overnight Lodging Units, or for the clubhouses and dining facilities, or for any other element of the resort. The groundwater to be extracted under the contested permit is the sole source of water approved for resort use under the resort’s Final Master Plan. LUBA concluded “that the county did not err in finding that Condition 10 is satisfied by documentation that Permit G-17036 is not cancelled and an Exhibit 27 Page 21 of 53 Exhibit 126 Page 36 of 204 17 accounting of the amount of mitigation water needed for the golf course site plan.” ER 18. However, the problem for the applicant here, and the reason that LUBA’s Order is unlawful in substance, is that there is no assurance that the permit in question will ultimately be extended. There is also no assurance that the applicant will not simply go forward with development of the golf course and lakes regardless, without having received that extension and, thus, the right to draw groundwater. There is nothing in the appealed decision which would prevent the applicant from doing so. The county’s decision and LUBA’s Order grant the applicant a license to violate Condition 10. There is not even a condition of approval requiring the applicant to have obtained the requested extension before proceeding with development. Gillette v. Lane County, 52 Or LUBA 1, 7-8 (2006), citing Rhyne v. Multnomah County, 23 Or LUBA 442, 447-48 (1992) (holding that an option for a local government facing evidentiary uncertainty as to whether a land use approval standard is met is to find that feasible solutions exist to identified problems and impose conditions if necessary to ensure that those feasible solutions are later developed and implemented). LUBA also reasoned that “that the county's interpretation of Condition 10 is not ‘contrary to’ ORS 537.130, which requires an OWRD permit for the use of water.” ER 18. LUBA stated that “county land use approval of the golf Exhibit 27 Page 22 of 53 Exhibit 126 Page 37 of 204 18 course site plan does not and cannot approve the use of water and, thus, will not result in a violation of ORS 537.130.” Id. In the context of Condition 10, that reasoning places the cart before the horse. The ultimate approval of the resort’s FMP was heavily dependent upon the resolution of water issues relating to sourcing and mitigation. The “hanging chad” left by LUBA’s Order is that the applicant may locate an entirely different source of water with which to develop and maintain the golf course and lakes, and seek to transfer other water rights for use at its resort. This would thoroughly disrupt the approved scheme and, under normal circumstances, compel a new analysis of required mitigation measures, perhaps in a different drainage to protect anadromous fish habitat in a different stream. One would think that this would in turn compel the county to revisit and reconsider the relevant elements of the Final Master Plan. However, LUBA’s Order would allow Thornburgh to evade this requirement, disrupting the balance ostensibly achieved through the CMP and FMP litigation. Thornburgh could simply point to the unresolved contested case regarding its existing permit and LUBA’s holding that this is good enough to satisfy Condition 10. This would create a loophole big enough to drive the proverbial truck through as the many phases (and so-called sub-phases) of the resort are processed. It would open the door to the piecemeal destruction of the resort’s master plan. Exhibit 27 Page 23 of 53 Exhibit 126 Page 38 of 204 19 To the extent that a substantial evidence issue is enmeshed somewhere in the above argument, petitioner would simply point out that there is no evidence in the record which would serve to refute or contradict petitioner’s characterization, above. If LUBA impliedly held against petitioner due to the failure of a substantial evidence challenge by petitioner, LUBA's decision is again unlawful in substance. Petitioner’s argument before LUBA was a legal argument flowing from the status of Thornburgh’s OWRD permit. If LUBA construed that argument as an evidentiary one instead, it failed to properly understand and apply its substantial evidence review obligation under ORS 197.835(9)(a)(C). Younger v. City of Portland, 305 Or 346, 358, 752 P2d 262 (1988). For the above reasons, in denying petitioner’s third assignment of error with respect to the applicant’s OWRD permit, LUBA’s Order contained errors of law and was unlawful in substance. 2. Availability of Water for Mitigation Purposes. As noted, FMP Condition 10 requires the following: 10. Applicant shall provide, at the time of tentative plat/site planreview for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for thatindividual phase. Exhibit 27 Page 24 of 53 Exhibit 126 Page 39 of 204 20 (Emphasis added.) The above language is straightforward. Petitioner contended that the applicant had failed to meet its burden of proving the required “accounting of the full amount of mitigation” for this phase of the resort, as required by Condition 10. As LUBA itself stated in Gould VIII, 79 Or LUBA 573-74: The Oregon Water Resources Department (OWRD) granted the water right upon finding that intervenor is responsible for providing 1,356 total acre-feet of mitigation water: 836 acre-feet from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch, and the remainingmitigation water from the Central Oregon Irrigation District (COID). [footnote omitted] The resort's consumptive use of groundwater is anticipated to impact an offsite fish-bearing stream, Whychus Creek, by reducing instrearn water volumes and increasing water temperatures. Themitigation plan requires intervenor to replace the water consumed by the resort with volumes and quality of water that will maintain fish habitat, especially cold water thermal refugia. The county found that themitigation plan will result in no net loss/degradation to fish and wildlife resources. Accordingly, Condition 10, standing alone and without supplementation by other related conditions of approval, required the “proving up” of the necessary quantity of mitigation water to replace the groundwater the applicant would draw for the golf course and lakes. Petitioner argued before the county and then before LUBA that Thornburgh had not accounted for the full amount of mitigation in question. LUBA Rec 205-206. In her petition for review, petitioner stated: Exhibit 27 Page 25 of 53 Exhibit 126 Page 40 of 204 21 The applicant has consistently identified a transfer from Big FallsRanch as the source of the required mitigation water. As petitioner has demonstrated, though, the applicant has not proved the availability of that water by substantial evidence. Petitioner stated: We are enclosing a copy of the Memorandum of Agreement between Pinnacle Utilities and Big Falls Ranch. As previously explained, this memorandum is not the actual agreement and does not contain most of the terms of that agreement, which is the controlling document. Further, the memorandum states: “The Effective Date of the Agreement is February 13, 2019, and the Agreement expires on December 1, 2020 unless sooner terminated or as may be extended pursuant to theterms and conditions of the Agreement.” Thus, mitigation water will not be available after December 1 ofthis year [2020], and the agreement itself may be terminated even earlier. Rec 1105-06. The county’s primary findings regarding this argument are set out at App A-24-27. These findings entirely fail to recognize that FMPCondition10 requires a current, updated accounting of the full amount of mitigation required for this phase of the development. With an undisclosed actual, complete agreement with BFR, and a termination date of December 1, 2020, “unless sooner terminated,” the applicant’s documentation was not of a kind upon which a reasonable decisionmaker would rely. Accordingly, the findings in question are inadequate and unsupported by substantial evidence in the whole record. LUBA Rec 205-206. LUBA did not address the specific argument raised by petitioner, above. It held: We understand petitioner to argue that the Condition 10 requirement that intervenor provide "an accounting of the full amount ofmitigation, as required under the water right," implicates mitigation water Exhibit 27 Page 26 of 53 Exhibit 126 Page 41 of 204 22 required to satisfy the no net loss standard. Petitioner asks, "[W]here is[intervenor's] updated accounting of the full amount of mitigation, relating to Whychus Creek as to fish and wildlife, for this phase of the resort?" Petition for Review 16 ( emphasis in original). However, petitioner does not explain the premise that Condition 10 relates to satisfaction of the no net loss standard. Accordingly, that argument is insufficiently developed for our review. Deschutes Development Co. v. Deschutes County, 5 Or LUBA 218,220 (1982). Moreover, to the extent that we understand the argument, we reject it. Condition 10 requires "an accounting of the full amount of mitigation, as required under the water right." (Emphasis added.) Condition 10 is imposed to ensure compliance with DCC 18.l 13.070(K), which is concerned with the availability of water for resort use and mitigation forthe resort's consumptive use of water, which is related to but distinct from the fish and wildlife mitigation plan that is required in order to satisfy DCC 18.l 13.070(D). ER 12. Here, LUBA misconstrued petitioner’s argument under her third assignment of error. Petitioner did not raise the “no net loss” standard in this assignment. LUBA Rec 194-206. Petitioner straightforwardly argued the unambiguous requirement of Condition 10 with respect to this proposed phase of the resort. Petitioner’s reference to Whychus Creek was contained in her second assignment of error, which is not a part of this review proceeding. More importantly, LUBA’s narrow reading of the mitigation requirement of Condition 10 directly contradicts its own, expressed understanding of the much broader scope of the condition, to comply with OWRD’s mitigation mandate, in Exhibit 27 Page 27 of 53 Exhibit 126 Page 42 of 204 23 Gould VIII, 79 Or LUBA 573-74, supra.3 Only the latter reading comports with the express language of the condition. LUBA also held that compliance with the no net loss standard of the Fish and Wildlife Mitigation Plan is assured by Condition 38 of the Final Master Plan, not Condition 10. ER 12-13. Again, LUBA misapprehends petitioner’s argument, which deals strictly with Condition 10 in the manner in which LUBA construed it in Gould VIII, and not with “no net loss” issues under Condition 38. LUBA went on to state: The county found that the provision of water to satisfy the FWMP is not relevant to the review of the golf course site plan becauseintervenor did not propose and the county did not approve any change to the FWMP as part of the golf course site plan review. Record 13 (citing Gould VIII, 79 Or LUBA at 583-84). Petitioner does not challenge thosefindings. Accordingly, we agree with intervenor that Condition 10 is concerned only with satisfaction of DCC 18.113.070(K) regarding the availability of water for resort use and mitigation for the volume ofconsumptive use, as required by OWRD under the water right. ER 13. Petitioner’s arguments under its third assignment did not concern the FWMP but, rather, the applicant’s failure to comply with the plain language of 3 “The Oregon Water Resources Department (OWRD) granted the water right upon finding that intervenor is responsible for providing 1,356 total acre-feet of mitigation water: 836 acre-feet from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch, and the remaining mitigation water from the Central Oregon Irrigation District (COID). * * *” Exhibit 27 Page 28 of 53 Exhibit 126 Page 43 of 204 24 Condition 10. For all these reasons, LUBA made errors of law and its Order was unlawful in substance in failing to decide the issue actually raised by petitioner with respect to the mitigation requirement of Condition10. III. CONCLUSION For the reasons explained above, LUBA’s Order contains errors of law and is unlawful in substance. The court should reverse LUBA’s Order or remand it to LUBA for further proceedings consistent with the court’s ruling. Respectfully submitted this 22nd day of July, 2021. s/ Jeffrey L. Kleinman Jeffrey L. KleinmanOSB No. 743726 Attorney for Petitioner Annunziata Gould Exhibit 27 Page 29 of 53 Exhibit 126 Page 44 of 204 EXCERPT OF RECORD Exhibit 27 Page 30 of 53 Exhibit 126 Page 45 of 204 Page 1 ER-1 1 BEFORE THE LAND USE BOARD OF APPEALS 2 OF THE STATE OF OREGON 3 4 ANNUNZIATA GOULD, 5 Petitioner, 6 7 and 8 9 PAUL J. LIPSCOMB, 10 Intervenor-Petitioner, 11 12 vs. 13 14 DESCHUTES COUNTY, 15 Respondent, 16 17 and 18 19 KAMERON K. DELASHMUTT, 20 Intervenor-Respondent. 21 22 LUBA No. 2020-095 23 24 FINAL OPINION 25 AND ORDER 26 27 Appeal from Deschutes County. 28 JUN 1 5 2021 29 Jeffrey L. Kleinman filed a petition for review and reply brief and argued 30 on behalf of petitioner. 31 32 Paul J. Lipscomb filed a petition for review. 33 34 No appearance by Deschutes County. 35 36 J. Kenneth Katzaroff filed the response brief and argued on behalf of 37 intervenor-respondent. Also on the brief was Schwabe, Williamson & Wyatt, 38 P.C. Exhibit 27 Page 31 of 53 Exhibit 126 Page 46 of 204 Page 2 ER-2 1 ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, Board 2 Member, participated in the decision. 3 4 AFFIRMED 06/11/2021 5 6 You are entitled to judicial review of this Order. Judicial review is 7 governed by the provisions of ORS 197.850. Exhibit 27 Page 32 of 53 Exhibit 126 Page 47 of 204 Page 3 ER-3 1 Opinion by Zamudio. 2 NATURE OF THE DECISION 3 Petitioner and intervenor-petitioner challenge a board of county 4 commissioners decision approving with conditions a site plan for a golf course, 5 irrigation lakes, and a road system (collectively, golf course site plan) as part of 6 a destination resort. 7 FACTS 8 A destination resort is a "self-contained development providing visitor- 9 oriented accommodations and developed recreational facilities in a setting with 10 high natural amenities." Statewide Planning Goal 8 (Recreational Needs); ORS 11 197.445. Local governments may plan for the siting of destination resorts on rural 12 lands, subject to the provisions of state law. Goal 8; ORS 197.435 - 197.467. 13 The land use dispute around the proposed Thornburgh Resort has been 14 before LUBA many times. We discuss that history only to the extent that it is 15 relevant to this appeal. In 2006, the county approved the Thornburgh Resort 16 conceptual master plan (CMP) and, in 2008, it approved a final master plan 17 (FMP). The FMP provides for phased development and includes a fish and 18 wildlife habitat mitigation plan (FWMP) to offset the impacts of the resort 19 development. The FMP divides the development into seven phases. The first 20 phase, Phase A, includes development of transportation infrastructure, a golf 21 course, a restaurant, meeting facilities, open space, 300 residential units, and·150 22 overnight lodging units (OLUs), and implementation of the FWMP. Exhibit 27 Page 33 of 53 Exhibit 126 Page 48 of 204 Page 4 ER-4 1 In May 2018, intervenor sought approval for the first phase of 2 development. 1 Intervenor requested approval of a tentative plan for a portion of 3 the approved Phase A, calling the partial sub-phase "Phase A-1," which includes 4 a tentative subdivision plat for 192 single-family residential dwelling lots, 24 5 single-family deed-restricted OLU lots, and 13 OLU lots, together with roads, 6 utility facilities, lots, and tracts for future resort facilities and open space. We 7 refer to the approvals, collectively, as the Phase A-1 TP. A county hearings 8 officer approved the Phase A-1 TP with conditions. 9 On June 21, 2019, we remanded the Phase A-1 TP. Gould v. Deschutes 10 County, 79 Or LUBA 561 (2019) ( Gould VIII), aff'd, 310 Or App 868, 484 P3d 11 1073 (2021). Our remand was narrow. Deschutes County Code (DCC) 12 18.113.070(D) requires that "[a]ny negative impact on fish and wildlife resources 13 will be completely mitigated so that there is no net loss or net degradation of the 14 resource." We have referred to that standard as the "no net loss" standard. The 15 resort's impact on fish and wildlife, and the efficacy of the FWMP to satisfy the 1 The Thornburgh Resort Company, which was dissolved, sold its rights in and to the development of the Thornburgh Resort to intervenor-respondent DeLashmutt, who sold those rights to Central Land and Cattle Company, LLC. DeLashmutt also acquired water rights for the Thornburgh Resort and sold those water rights to Pinnacle Utilities, LLC. Central Land and Cattle Company, LLC v. Deschutes County, 74 Or LUBA 326, 349 n 13, aff'd, 283 Or App 286, 388 P3d 739 (2016). Inthis decision, we refer to all of those parties as "intervenor" for ease of reference because the distinction among the parties makes no difference to our analysis. Exhibit 27 Page 34 of 53 Exhibit 126 Page 49 of 204 Page 5 ER-5 1 no net loss standard, has been the subject of multiple prior appeals. In Gould VIII, 2 we concluded that a condition of approval that the hearings officer imposed in 3 approving the Phase A-1 TP violated the right to public participation on whether 4 the no net loss standard will be satisfied by mitigation water from sources not 5 specified in the F\VMP. Petitioner appealed our decision to the Court of Appeals. 6 That appeal ultimately went up to the Supreme Court and returned to the Court 7 of Appeals, which affirmed our decision. 310 Or App 868, 484 P3d 1073. 8 While the Phase A-1 TP decision was climbing the appellate ladder, 9 intervenor applied for the golf course site plan review. The county planning 10 division administratively approved the application. Petitioner appealed that 11 approval to the board of county commissioners, which approved the golf course 12 site plan review with conditions. This appeal followed. 13 INTERVENOR-PETITIONER'S ASSIGNMENT OF ERROR 14 ORS 197.455 provides, in part: 15 "(1) A destination resort may be sited only on lands mapped as 16 eligible for destination resort siting by the affected county. 17 The county may not allow destination resorts approved 18 pursuant to ORS 197.435 to 197.467 to be sited in any of the 19 following areas: 20 "(a) Within 24 air miles of an urban growth boundary with 21 an existing population of 100,000 or more unless 22 residential uses are limited to those necessary for the 23 staff and management of the resort. 24 "* * * * * Exhibit 27 Page 35 of 53 Exhibit 126 Page 50 of 204 Page 6 ER-6 1 "(2) In carrying out subsection (1) of this section, a county shall 2 adopt, as part of its comprehensive plan, a map consisting of 3 eligible lands within the county. The map must be based on 4 reasonably available information and may be amended 5 pursuant to ORS 197.610 to 197.625, but not more frequently 6 than once every 30 months. The county shall develop a 7 process for collecting and processing concurrently all map 8 amendments made within a 30-month planning period. A map 9 adopted pursuant to this section shall be the sole basis for 10 determining whether tracts of land are eligible for destination 11 resort siting pursuant to ORS 197.435 to 197.467." 12 The county found that the subject property was determined eligible for 13 resort siting as part of the CMP approval and that ORS 197.455 is not a relevant 14 site plan review criterion. Record 45. 15 Intervenor-petitioner (Lipscomb) argues that, while the subject property is 16 mapped as eligible for destination resort siting by the county, the property is 17 nonetheless ineligible for destination resort siting because it is within 24 air miles 18 of the urban growth boundary for the city of Bend, which Lipscomb argues 19 currently has a population of more than 100,000. Lipscomb acknowledges that, 20 when the county's destination resort map was adopted, and when the CMP and 21 FMP were approved, the population of Bend was less than 100,000. However, 22 Lipscomb argues that relevant populations for purposes of ORS 197.455 must be 23 measured and determined at the time of site plan review. 24 Lipscomb argues that interpretation is supported by the use of the terms 25 "sited" in ORS 197.455(1) and "existing population" in ORS 197.455(1)(a). 26 Lipscomb argues that, while the CMP and FMP have been approved, the resort 27 is not "sited" for purposes of ORS 197.455 until site plan review. Hence, Exhibit 27 Page 36 of 53 Exhibit 126 Page 51 of 204 Page 7 ER-7 1 according to Lipscomb, ORS 197.455 is an applicable approval criterion for site 2 plan review of any phase of a resort. 3 Intervenor responds, and we agree, that Lipscomb's argument 4 misinterprets the plain language of ORS 197.455. ORS 197.455 requires counties 5 to inventory and map lands eligible for destination resort siting. The county 6 mapped and identified the subject property as eligible for destination resort siting. 7 Pursuant to ORS 197.455(2), the county's map is the sole basis for determining 8 whether the subject property is eligible for destination resort siting. 9 The limitations on resort siting in ORS 197.455(1) apply at the time that a 10 county adopts maps identifying lands eligible for siting destination resorts. After 11 a county has adopted such maps, the limitations in ORS 197.455(1) do not apply 12 to specific applications for destination resorts. Instead, the adopted maps control 13 whether a specific property is eligible for destination resort siting. Central 14 Oregon Landwatch v. Deschutes County, 66 Or LUBA 192, 201 (2012); Eder v. 15 Crook County, 60 Or LUBA 204, 211 (2009). 16 Lipscomb also argues that the county failed to make adequate findings 17 supported by substantial evidence that the challenged decision complies with 18 ORS 197.455. Those arguments rely on Lipscomb's interpretation of ORS 19 197.455, which we reject above. Accordingly, we do not separately analyze those 20 arguments. 21 Intervenor-pet itioner' s assignment of error is denied. Exhibit 27 Page 37 of 53 Exhibit 126 Page 52 of 204 Page 8 ER-8 1 PETITIONER'S FIRST ASSIGNMENT OF ERROR 2 Petitioner argues that the county misconstrued the applicable law in 3 approving the golf course site plan while the county's Phase A-1 TP approval 4 was pending review at LUBA and in the appellate courts. Petitioner argued to the 5 county that the location and layout of the golf course, lakes, and related open 6 space depend upon the configuration of the residential lots in the Phase A-1 TP, 7 which was on appeal and, thus, not final at the time that the county reviewed the 8 golf course site plan. Record 1253.,, 9 The county rejected that argument, explaining that the golf course site plan 10 and the Phase A-1 TP are separate applications for different development 11 activities authorized to occur in Phase A. Moreover, the Phase A-1 TP and the 12 golf course site plan are independent. The Phase A-1 TP authorizes the division 13 of lots. The applicable approval criteria for the golf course and irrigation lakes 14 do not require that the property be divided.2 Each application was reviewed by 2 The county found: "The subject site plan and the Phase A-1 [TP] application are separate development applications for different development activities authorized to occur in Phase A of the Thornburgh Resort. Each application was reviewed, as described below, as the third step in a 3 step process, and neither is dependent on the other. Each application was independently reviewed for its compliance with the FMP and relevant provisions of the [DCC]. One application was reviewed under tentative plan criteria and the other application was reviewed under site plan criteria. The fact that each application was required to establish that it complied with the FMP did not cause the Exhibit 27 Page 38 of 53 Exhibit 126 Page 53 of 204 Page 9 ER-9 1 the county for compliance with relevant approval criteria. See DCC 2 18.l 13.040(C) (providing that, in addition to establishing compliance with the 3 FMP, each development phase of a destination resort must receive additional 4 approval through site plan review or the subdivision process). 5 On appeal, petitioner argues that, if the configuration of the residential lots, 6 or other related development such as roadways, in the Phase A-1 TP is changed, 7 then the location of the golf course and lakes will likely have to be reconfigured. 8 Intervenor responds that, while the road system in the golf course site plan 9 is the same as the road system approved in the Phase A-1 TP, the golf course site 10 plan does not depend on approval of the Phase A-1 TP. Intervenor observes that, 11 even if the Phase A-1 TP approval is modified or denied on remand, the 12 subdivision of residential lots contemplated in the Phase A-1 TP can be 13 reconfigured around the approved golf course site plan, so long as both the golf 14 course site plan and the Phase A-1 TP comply with the approved FMP. 15 Petitioner's first assignment of error outlines practical problems that could 16 potentially arise from the timing and procedural posture of the Phase A-1 TP 17 approval and appeal, and the golf course site plan review. However, petitioner 18 does not assert, let alone demonstrate, that the county's approval of the golf 19 course site plan misconstrues any applicable site plan review criteria or that the 20 county's findings that the site plan review criteria are satisfied are inadequate or subject site plan to hinge upon the outcome of the Phase A-1 [TP] appeals as argued by [petitioner]." Record 11. Exhibit 27 Page 39 of 53 Exhibit 126 Page 54 of 204 Page 10 ER-10 ] 1 unsupported by substantial evidence. Accordingly, petitioner's first assignment 2 of error provides no basis for reversal or remand. 3 Petitioner's first assignment of error is denied. 4 PETITIONER'S THIRD ASSIGNMENT OF ERROR 5 FMP Condition 10 provides: 6 "Applicant shall provide, at the time of tentative plat/site plan 7 approval review for each individual phase of the resort development, 8 updated documentation for the state water right permit and an 9 accounting of the full amount of mitigation, as required under the 10 water right, for that individual phase." Record 15. 11 The county imposed Condition 10 to ensure compliance with DCC 12 18.l 13.070(K), which requires intervenor to demonstrate that "[a]dequate water 13 will be available for all proposed uses at the destination resort." The resort's use 14 of water is governed by water rights and rules administered by the Oregon Water 15 Resources Department (OWRD). The county explained the genesis of Condition 16 10 as follows: 17 "What is now FMP Condition #10 was first included in, and carried 18 over from the CMP approved in 2006. By including the condition as 19 part of the CMP, the [board of county commissioners] at that time 20 overturned a finding by a County Hearings Officer stating that 'until 21 the applicant demonstrates that it has enough mitigation credits to 22 mitigate for 942 acre-feet of water (the estimated amount of 23 consumptive use per OWRD), it is unlikely that the application will 24 be approved.' [3 3 See OAR 690-505-0605(2) ("'Consumptive use' means [OWRD's] determination of the amount of a ground water appropriation that does not return Exhibit 27 Page 40 of 53 Exhibit 126 Page 55 of 204 Page 11 ER-11 1 "[Intervenor] appealed that Hearing Officer's decision to the [board 2 of county commissioners] arguing that mitigation water only needed 3 to be provided when the water rights permit dictated, not prior to 4 development of the entire resort. On appeal, [Central Oregon 5 Irrigation District (COID)] manager Steve Johnson argued that: 6 "'The decision rendered by Hearings Officer Anne Corcoran 7 Briggs last month implies that the Resort must bring all of the 8 water to the table with the application. This decision, if left 9 unmodified, will set a precedent that will artificially escalate 10 the competition for water rights in the basin, and 11 consequently drive the price up, and drive some farmers out. 12 Her analysis of Water Availability on page 25 expressly 13 conditions approval of the application on having the credits 14 in hand now. Some of this water will not be needed for many 15 years, and this policy, if followed, will be a waste of water, 16 against the beneficial use doctrine that is the pillar of 17 Oregon's water law policy.' 18 "The previous [board of county commissioners] agreed with 19 [intervenor] and COID, and required [intervenor] through Condition 20 10 to provide mitigation water when required by the OWRD water 21 right permit. 22 "The previous [board of county commissioners] further found that 23 prior to mitigation water being required by the OWRD water right 24 permit, [intervenor] is only required to show it is not precluded from 25 obtaining mitigation water as a matter of law. The previous [board 26 of county commissioners] further found that [intervenor] had met 27 that standard and had exceeded it by showing it was feasible at that 28 time to obtain sufficient mitigation water when required by OWRD. 29 The current [board of county commissioners] agrees with and 30 considers those previous findings as binding on the subject 31 application." Record 15-16 (internal citations omitted). to surface water flows in the Deschutes Basin due to transpiration, evaporation or movement to another basin."). Exhibit 27 Page 41 of 53 Exhibit 126 Page 56 of 204 Page 12 ER-12 1 We understand petitioner to argue that the Condition 10 requirement that 2 intervenor provide "an accounting of the full amount of mitigation, as required 3 under the water right," implicates mitigation water required to satisfy the no net 4 loss standard. Petitioner asks, "[W]here is [intervenor's] updated accounting of 5 the full amount of mitigation, relating to Whychus Creek as to fish and wildlife, 6 for this phase of the resort?" Petition for Review 16 (emphasis in original). 7 However, petitioner does not explain the premise that Condition 10 relates to 8 satisfaction of the no net loss standard. Accordingly, that argument 1s 9 insufficiently developed for our review. Deschutes Development Co. v. 10 Deschutes County, 5 Or LUBA 218, 220 (1982). 11 Moreover, to the extent that we understand the argument, we reject it. 12 Condition 10 requires "an accounting of the full amount of mitigation, as 13 required under the water right." (Emphasis added.) Condition 10 is imposed to 14 ensure compliance with DCC 18.113.070(K), which is concerned with the 15 availability of water for resort use and mitigation for the resort's consumptive 16 use of water, which is related to but distinct from the fish and wildlife mitigation 17 plan that is required in order to satisfy DCC 18.l 13.070(D). 18 As we explained in Gould VIII, the resort's consumptive use of 19 groundwater is anticipated to impact an offsite fish-bearing stream, Whychus 20 Creek, by reducing instream water volumes and increasing water temperatures. 21 The FWMP requires intervenor to replace the water consumed by the resort with 22 water of sufficient quantity and quality to maintain fish habitat, especially cold Exhibit 27 Page 42 of 53 Exhibit 126 Page 57 of 204 Page 13 ER-13 1 water thermal refugia. FMP Condition 38 requires intervenor to "abide by" the 2 FWMP. and "submit an annual report to the county detailing mitigation activities 3 that have occurred over the previous year." Record 34. Satisfaction of the no net 4 loss standard is ensured through compliance with Condition 38, not Condition 5 10. 6 The county found that the provision of water to satisfy the FWMP is not 7 relevant to the review of the golf course site plan because intervenor did not 8 propose and the county did not approve any change to the FWMP as part of the 9 golf course site plan review. Record 13 (citing Gould VIII, 79 Or LUBA at 583- 10 84). Petitioner does not challenge those findings. Accordingly, we agree with 11 intervenor that Condition 10 is concerned only with satisfaction of DCC 12 18.l 13.070(K) regarding the availability of water for resort use and mitigation 13 for the volume of consumptive use, as required by OWRD under the water right. 14 The golf course development will require water. There are no existing 15 natural streams, ponds, wetlands, or riparian areas on the site. The resort water 16 supply will be groundwater obtained from wells on the property. On April 3, 17 2013, OWRD issued intervenor a state water right permit, Permit G-17036, for a 18 quasi-municipal use of groundwater, which authorized intervenor to drill six 19 wells and pump groundwater for resort use, including the golf course and 20 irrigation lakes. OWRD granted 2,129 acre-feet of water rights to support the 21 resort development year-round. Under that water right, intervenor is responsible 22 for providing 1,356 total acre-feet of mitigation water. Permit G-17036 specified Exhibit 27 Page 43 of 53 Exhibit 126 Page 58 of 204 Page 14 ER-14 1 that completion of construction of the resort water system and application of the 2 water must be accomplished within five years, by April 3, 2018. Record 1696. 3 On April 2, 2018, intervenor requested an extension of Permit G-17036 from 4 OWRD. On June 5, 2018, ORWD issued a proposed final order approving the 5 extension. On July 20, 2018, petitioner filed a protest of the proposed final order 6 and requested a contested case hearing. On October 26, 2018, OWRD issued a 7 final order allowing the permit extension without holding a contested case 8 hearing. Record 1697. On January 31, 2019, OWRD withdrew the October 26, 9 2018 final order and referred petitioner's protest to the Office of Administrative 10 Hearings for a contested case hearing. That contested case hearing was pending 11 at the time of the county's decision on the golf course site review. Record 16. 12 In Gould VIII, petitioner argued that the hearings officer erred in 13 concluding that intervenor had satisfied Condition 10 for the Phase A-1 TP 14 because the record in that proceeding established that the water right had not been 15 extended past its expiration date. We agreed with intervenor that, because water 16 mitigation is based on consumptive use, Condition 10 "requires proof of adequate 17 water rights and mitigation cmmnensurate with the estimated consumptive use of 18 water for the development approved at each phase of development, and in 19 advance of actual water consumption." Gould VIII, 79 Or LUBA at 574. 20 Intervenor argued that petitioner's protest of the water right permit extension did 21 not render the permit void. We concluded that the hearings officer did not err in 22 construing Condition 10 to require documentation of the water right and that Exhibit 27 Page 44 of 53 Exhibit 126 Page 59 of 204 Page 15 ER-15 1 intervenor had sufficiently documented its water right, notwithstanding 2 petitioner's protest. Our decision was upheld by the Court of Appeals. 310 Or 3 App 868, 484 P3d 1073. 4 Petitioner again disputed the status of intervenor's water rights during the 5 county's review of the golf course site plan. Petitioner argued that intervenor 6 could not satisfy Condition 10 because intervenor's water rights permit had 7 expired and the extension was contested and not final. 8 The board of county commissioners interpreted Condition 10 as "primarily 9 * * * an informational requirement," adopting the hearing officer's interpretation 10 of Condition 10 as applied to the Phase A-1 TP in Gould VIII. Record 16. The 11 board concluded that Condition 10 was satisfied for the golf course site plan, 12 notwithstanding the ongoing dispute over Permit G-17036 in the OWRD 13 contested case proceeding. The county found that intervenor had documented the 14 full amount of mitigation water needed for the golf course site plan and had 15 provided documentation for the state water right permit. The county concluded 16 that Permit G-17036 remains an effective and valid water right "unless and until 17 cancelled by OWRD" and observed that O\VRD's water rights information query 18 showed the status of the permit as "non-cancelled." Record 16-17. 19 Petitioner argues that the county misinterpreted Condition 10 and failed to 20 make adequate findings supported by substantial evidence because, according to 21 petitioner, the record demonstrates that the water right is expired and intervenor 22 therefore does not have a valid water right permit. Exhibit 27 Page 45 of 53 Exhibit 126 Page 60 of 204 Page 16 ER-16 1 The parties dispute our standard of review for the county's interpretation 2 of Condition 10. Petitioner argues that Condition 10 implements state law that 3 requires a permit for the use of water and, thus, the county's interpretation of 4 Condition 10 is not entitled to any deference. See ORS 537.130 (providing that, 5 generally, the use of water requires a permit from OWRD); see also ORS 6 197.829(1)(d), n 4. Differently, intervenor argues that the county's interpretation 7 of Condition 10 is entitled to deference under ORS 197.829 and Siporen v. City 8 of Medford, 349 Or 247, 259, 243 P3d 776 (2010).4 9 ORS 197.829(1) requires LUBA to affirm a govemmg body's 10 interpretation of its own comprehensive plan provision or land use regulation 11 unless the interpretation is inconsistent with the provision or regulation's express 4 ORS 197.829(1) provides: "[LUBA] shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless [LUBA] determines that the local government's interpretation: "(a) Is inconsistent with the express language of the comprehensive plan or land use regulation; "(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation; "(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or "(d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements." Exhibit 27 Page 46 of 53 Exhibit 126 Page 61 of 204 Page 17 ER-17 1 language, purpose, or underlying policy. ORS 197.829(1) generally does not 2 require LUBA to affirm a local government's interpretation of a prior land use 3 decision or conditions of approval attached to a prior land use decision. M & T 4 Partners, Inc. v. City of Salem, _ Or LUBA _, _ (LUBA No 2018-143, 5 Aug 14, 2019) (slip op at 14), aff'd sub nom M & T Partners, Inc. v. Miller, 302 6 Or App 159, 170, 460 P3d 117 (2020). To a "limited extent," LUBA will defer 7 to plausible interpretations of county land use regulations that the governing body 8 made in the course of interpreting a condition of approval. Kuhn v. Deschutes 9 County, 74 Or LUBA 190, 194 (2016). The deference question "reduces to 10 whether the city was interpreting a land use regulation," and a condition of 11 approval is not a land use regulation. M & T Partners, 302 Or App at 170. 12 Intervenor emphasizes that the county adopted Condition 10 to ensure 13 compliance with DCC 18.113.070(K). However, intervenor does not contend or 14 explain how, in interpreting Condition 10, the county interpreted DCC 15 18.l 13.070(K). Thus, the county's interpretation of Condition 10 is not entitled 16 to deference and, instead, we review it for legal error. ORS 197.835(9)(a)(D). 17 As explained above, the county imposed Condition 10 to ensure 18 compliance with DCC 18.113.070(K), which requires intervenor to demonstrate 19 that "[a]dequate water will be available for all proposed uses at the destination 20 resort." Condition 10 requires intervenor to provide "updated documentation for 21 the state water right permit." While the legal effect of the OWRD contested case 22 hearing on intervenor's requested extension of Permit G-17036 is disputed, Exhibit 27 Page 47 of 53 Exhibit 126 Page 62 of 204 Page 18 ER-18 1 petitioner has not established that, as a matter of law, Permit G-17036 is not a 2 valid water right. In that context, we cannot say that the county erred in finding 3 that intervenor provided the required documentation for the state water right 4 permit required by Condition 10. We conclude that the county did not err in 5 finding that Condition 10 is satisfied by documentation that Permit G-17036 is 6 not cancelled and an accounting of the amount of mitigation water needed for the 7 golf course site plan. 8 We further conclude that the county's interpretation of Condition 10 is not 9 "contrary to" ORS 537.130, which requires an OWRD permit for the use of 10 water. DCC 18.113.070(K) requires intervenor to demonstrate, and the county to 11 find, that adequate water will be available for all proposed uses for each phase of 12 development of the destination resort. Condition 10 requires intervenor to 13 provide documentation of the existence of a water right. The county is not 14 authorized to approve or regulate the actual use of water-that is OWRD's role. 15 In other words, county land use approval of the golf course site plan does not and 16 cannot approve the use of water and, thus, will not result in a violation of ORS 17 537.130. 18 Petitioner's third assignment of error is denied. 19 PETITIONER'S SECOND ASSIGNMENT OF ERROR 20 In the second assignment of error, petitioner argues that the county erred 21 in finding that petitioner's arguments regarding Condition 10 are improper 22 collateral attacks on the FMP. Petitioner does not challenge any specific findings. Exhibit 27 Page 48 of 53 Exhibit 126 Page 63 of 204 Page 19 ER-19 1 Instead, petitioner points to a range of pages in the challenged decision. It is not 2 clear to us which findings petitioner challenges regarding collateral attack and to 3 which applicable site review criteria those findings relate. Condition 10 is the 4 only provision that petitioner specifically identifies. Petition for Review 12. 5 Intervenor responds that, to the extent that the county determined that some 6 of petitioner's arguments regarding Condition 10 and DCC 18.l 13.070(K) are 7 impermissible collateral attacks on the final CMP and FMP approval decisions, 8 those findings are alternative findings, and the county also addressed those issues 9 on the merits. We agree. We affirm the county's conclusion that Condition 10 is 10 satisfied under the third assignment of error. Accordingly, even if the county 11 erred in concluding that some of petitioner's arguments regarding Condition 10 12 are impermissible collateral attacks, those errors provide no basis for remand. 13 Petitioner's second assignment of error is denied. 14 The county's decision is affirmed. Exhibit 27 Page 49 of 53 Exhibit 126 Page 64 of 204 ER-20Certificate of MailingI hereby certify that I served the foregoing Final Opinion and Order AFF for LUBA No.2020-095 on June 11,2021, by mailing to said parties or their attorney a tme copy thereofcontamed in a sealed envelope with postage prepaid addressed to said parties or their attorneyas follows:David DoyleDeschutes County Counsel's Office1300 NW Wall Street, Suite 205Bend, OR 97701J. Kenneth KatzaroffSchwabe, Williamson & Wyatt, P.C.1420 5th Ave, Suite 3400Seattle, WA 98101Jeffrey L. Kleinman1207 SW 6th AvenuePortland, OR 97204Paul LipscombPO Box 579Sisters, OR 97759Dated this 11th day of June, 2021.Erin Pence Vanessa SteeleExecutive Support Specialist Executive Support SpecialistExhibit 27 Page 50 of 53Exhibit 126 Page 65 of 204 CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE REQUIREMENTS I certify that this brief complies with the word-count limitation in ORAP 5.05(1)(b)(ii)(A), of 10,000 words, and the word-count of this brief is 5959 words. I certify that the size of the type in this brief is not smaller than 14 point for both text of the brief and footnotes as required by ORAP 5.05(1)(d)(ii). Dated: July 22, 2021. s/ Jeffrey L. Kleinman Jeffrey L. Kleinman, OSB #743726 Attorney for Petitioner Annunziata Gould 1207 SW Sixth Avenue Portland, OR 97204 Telephone: (503) 248-0808 Email: KleinmanJL@aol.com Exhibit 27 Page 51 of 53 Exhibit 126 Page 66 of 204 CERTIFICATE OF SERVICE I certify that on July 22, 2021, I served a true copy of this Opening Brief of Petitioner Annunziata Gould and Excerpt of Record on: Paul Lipscomb, Esq. PO Box 579 Sisters, OR 97759 Email: judgelipscomb@gmail.com Petitioner Paul Lipscomb David Adam Smith, Esq. Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Email: adam.smith@deschutes.org Attorney for Respondent Deschutes County J. Kenneth Katzaroff, Esq. U.S. Bank Centre 1420 5th Avenue, Suite 3400 Seattle, WA 98101 email: kkatzaroff@schwabe.com Attorney for Respondent Kameron K. Delashmutt by:____ United States Postal Service, ordinary first class mail United States Postal Service, certified mail, return receipt requested ____ hand delivery X other – the electronic service function of the appellate eFiling system DATED this 22nd day of July, 2021. s/ Jeffrey L. Kleinman Jeffrey L. Kleinman, OSB #743726Attorney for Petitioner Annunziata Gould 1207 SW Sixth Avenue Portland, OR 97204 Telephone: (503) 248-0808 Email: KleinmanJL@aol.com Page 1 - CERTIFICATE OF SERVICE AND FILING Exhibit 27 Page 52 of 53 Exhibit 126 Page 67 of 204 CERTIFICATE OF FILING I certify that on July 22, 2021, I filed the original of this Opening Brief of Petitioner Annunziata Gould and Excerpt of Record at this address: Appellate Court Administrator Appellate Court Records Section 1163 State Street Salem, Oregon 97301-2563 by: ____ United States Postal Service, ordinary first class mail United States Postal Service, certified mail, return receipt requested ____ hand delivery X other – the electronic service function of the appellate eFiling system DATED this 22nd day of July, 2021. s/ Jeffrey L. Kleinman Jeffrey L. Kleinman, OSB #743726 Attorney for Petitioner Annunziata Gould 1207 SW Sixth Avenue Portland, OR 97204 Telephone: (503) 248-0808 Email: KleinmanJL@aol.com Page 2 - CERTIFICATE OF SERVICE AND FILING Exhibit 27 Page 53 of 53 Exhibit 126 Page 68 of 204 Exhibit 28 Page 1 of 5 Exhibit 126 Page 69 of 204 Exhibit 28 Page 2 of 5 Exhibit 126 Page 70 of 204 Exhibit 28 Page 3 of 5 Exhibit 126 Page 71 of 204 Exhibit 28 Page 4 of 5 Exhibit 126 Page 72 of 204 Exhibit 28 Page 5 of 5 Exhibit 126 Page 73 of 204 Page 1 Timeline “PDF 2019/2018 Rec” is a reference to a PDF file the applicant filed with the County in a prior proceeding. The referenced pages are provided with this timeline in numerical order. Exhibits are attached as well following the numbered PDF documents. Action When Source of Information CMP approved by BOCC Condition 10 requires a water permit for resort water use and, at the time of each tentative plan/site plan review for each “individual phase,” an accounting of the mitigation “as required under the water right for that individual phase” (site plan and tentative plan development phases). May 10, 2006 DC No. 2006-151, CU-05-20 pp. 93 – 97, Exhibit F OWRD issues final order accepting settlement of appeal of groundwater permit application. OWRD increased required mitigation for Resort water use to “1,356.0 acre-feet in the General Zone of Impact (Anywhere in Deschutes Basin above the Madras gage, which is located below Lake Billy Chinook.)” March 22, 2007 PDF 2019/2018 Rec 408 LUBA Decision re CMP on appeal by Gould and Munson (Remand) Source of groundwater is the regional aquifer of the Deschutes Basin; mitigation credits required by Deschutes Basin groundwater program can be individually owned water rights or purchased from mitigation credit bank or holder. A showing that Thornburgh is not precluded as a matter of law from obtaining water rights permit for resort and mitigation for that use of groundwater meets showing of water availability required by DCC 18.113.070(K) per Bouman v. Jackson County, 23 Or LUBA 628, 647 (1992). An argument that the Resort must obtain Deschutes Basin mitigation credits before CMP approval is inconsistent with Bouman. May 14, 2007 54 Or LUBA 205 (2007) 54 Or LUBA at 264-265 54 Or LUBA at 265-266 54 Or LUBA at 267 Exhibit 29 Page 1 of 49 Exhibit 126 Page 74 of 204 Page 2 Oregon Court of Appeals (CMP, reversed and remanded) LUBA’s finding that it is feasible for BLM, ODFW and Thornburgh to develop a wildlife plan to meet the no net loss standard was erroneous; a wildlife plan must be development and provided to the public for review. November 7, 2007 216 Or App 150 (2007) 216 Or App at 159-163 BOCC Approved and Revised the CMP on Remand BOCC adopted CMP Condition 37. It says: “Applicant shall demonstrate compliance with DCC 18.113.070(D) [no net loss] by submitting a wildlife mitigation plan to the County as part of its application for Final master plan approval. The County shall consider the wildlife mitigation plan at a public hearing with the same participatory rights as those allowed in the CMP approval hearing.” April 7, 2008 Document 2008-151, Exhibit G LUBA affirms County approval of CMP Approved deferred review of Wildlife Mitigation Plan at time of review of FMP 57 Or LUBA 403, 413-417 (2008) Approval of FMP by County hearings officer Ann Briggs Approved wildlife mitigation plan, including FWMP. Created and imposed Condition 38 to assure compliance with the WMP (including FWMP) by annual monitoring by County staff. FWMP proposes to comply with OWRD mitigation requirements and to include Big Fall Ranch water rights as a part of the OWRD program to provide cold water benefits to the main stem Deschutes River to address water quality issues raised by opponents and ODFW. The remainder of mitigation water required by the FWMP is from mitigation allowed by the OWRD permit. October 8, 2008 M-07-2/MA-08-6 pp. 2, 30, Exhibit H PDF 2019 Rec (Part) & 2018 Rec 1116 Exhibit 29 Page 2 of 49 Exhibit 126 Page 75 of 204 Page 3 Applicant offered, in letter from Martha Pagel dated August 11, 2008, additional “fish” mitigation including 106-acre feet of annual flow restoration for Whychus Creek (the only mitigation specifically promised for Whychus Creek). PDF 2019/2018 Rec 384- 385 Oregon Court of Appeals (affirmed CMP) Affirmed County’s decision to defer review of the Wildlife Management Plan until review of FMP April 22, 2009 227 Or App 601, rev den 347 Or 258 (2009) LUBA remands FMP approval Ms. Gould argued that no FMP condition of approval [notably not Condition 10] assured compliance with the FWMP. In her Petition for Review, Ms. Gould argued that the only conditions of approval related to fish resources are conditions 38 and 39. LUBA agreed but found that compliance with the FWMP and Whychus Creek mitigation was assured by FMP Condition 38. LUBA remanded the FWMP due to conflicting evidence about the efficacy of TSID mitigation water to meet the no net loss standard for Lower Whychus Creek. The hearings officer found that groundwater impacts on the Deschutes River would be mitigated in part by acquiring Big Falls Ranch water rights and returning that water to Deep Canyon Creek. Ms. Gould argued that the Resort was not required by the FMP to obtain Big Falls Ranch mitigation water. In her Petition for Review, Ms. Gould argued that while OWRD would require mitigation, it would not necessarily be the mitigation water required by the FWMP. LUBA found that “the Fish WMP and August 11, 2008 letter to the hearings officer make it clear that Thornburgh is obligated to mitigate by acquiring the Big Falls Ranch water rights and returning that water to Deep Canyon Creek.” Ms. Gould next argued that mitigation water may not be available from COID and that it must be “actually available and used” to comply with the September 9, 2009 59 Or LUBA 435 (2009) 59 Or LUBA 458-459 Petition for Review LUBA 2008-203, p. 29. 59 Or LUBA 458-459 59 Or LUBA 459 Petition for Review LUBA 2008-203, p. 31, fn 8. 59 Or LUBA 459 Petition for Review p. 31. Exhibit I Exhibit 29 Page 3 of 49 Exhibit 126 Page 76 of 204 Page 4 FWMP. LUBA rejected this argument and found that the feasibility of obtaining mitigation water had been addressed in Gould I which settled the issue of the availability of mitigation water for OWRD “volume” mitigation. LUBA found that COID water rights would only be secured “if necessary” to meet mitigation obligations under the water permit (Condition 10). [Note: Condition 10 requires an accounting of mitigation required under the water permit. That mitigation water may come from anywhere from the general zone of impact above the Madras gage.] 59 Or LUBA at 459-460. PDF 2019/2018 Rec 408, 2077 Oregon Court of Appeals re FMP (affirmed LUBA) FMP Condition 38 assured compliance with fish mitigation plans, including TSID mitigation for Whychus Creek. FMP Condition 39 provides in-stream water for Whychus Creek from TSID Hearings Officer treated the Wildlife Mitigation Plan as a single plan with addenda, including the M&M Plan, Fish WMP and August 11, 2008 letter (TSID mitigation) February 24, 2010 233 Or App 623 (2010) 233 Or App at 634 233 Or App at 634-635 233 Or App at 635 OWRD Issues Water Rights Permit Permit states: “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.)” April 3, 2013 PDF 2019/2018 Rec 2077- 2081 Deschutes County denies FMP on remand due to decision not to reopen the record to address issue of Whychus Creek water quality and TSID mitigation September 2015 See 78 Or LUBA 118, 121 (2018) Exhibit 29 Page 4 of 49 Exhibit 126 Page 77 of 204 Page 5 LUBA remands FMP to County based on issues raised by Central Land and Cattle Co. LLC; rejects all arguments raised on cross-appeal by Ms. Gould September 23, 2016 74 Or LUBA 326 (2016) Deschutes County approves FMP on remand After October 2017 78 Or LUBA 118, 122 (2018) LUBA affirms approval of FMP August 21, 2018 78 Or LUBA 118 (2018) Deschutes County approves Phase A-1 Tentative Plan October 30, 2018 PDF 2019/2018 Rec 492 LUBA remands Phase A-1 Tentative Plan LUBA finds that FWMP mitigation plan relied on Big Falls Ranch and COID as sources of water despite its finding to the contrary in Gould v. Deschutes County, 59 Or LUBA 435 (2009). LUBA mistakenly finds that OWRD granted the water right upon a finding that 836 acre-feet of mitigation would be “from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch, and the remaining mitigation water from Central Oregon Irrigation District (COID).” The permit specifies the source of mitigation water as water from the General Zone of Impact. LUBA correctly finds that Big Falls Ranch and COID were identified as sources of mitigation water in the FWMP. Additionally, the FWMP recognizes that water rights will also come from outside the COID district. LUBA agreed that mitigation may be provided in increments by subphase of water use as long as provided in advance of a “development phase” such as the Phase A-1 tentative plan. The issue of the availability of COID mitigation water need not be addressed on remand because reliance on Big Falls Ranch water rights is sufficient to mitigate for Phase A-1 and LUBA agreed that mitigation may be provided in increments by phase of water use. June 21, 2019 79 Or LUBA 561 (2019) 79 Or LUBA at 579 79 Or LUBA at 573 PDF 2019/2018 Rec 2078 79 Or LUBA at 574 PDF 2019/2018 Rec 1114 79 Or LUBA at 574-575 Exhibit 29 Page 5 of 49 Exhibit 126 Page 78 of 204 Page 6 Comment: The finding that COID water is a required source of mitigation water for the FWMP is binding on the applicant on remand but will not be binding in future development applications. As a result, the applicant wishes to make it clear that the finding is erroneous. The mitigation plan promises the following re “mitigation water”: (a) compliance with OWRD groundwater mitigation requirements which allow mitigation from the general zone of impact above the Madras Gage; (b) Big Falls Ranch water (thermal mitigation for the Deschutes River); and (c) by way of a letter addendum dated August 11, 2008, Three Sisters Irrigation District mitigation for Whychus Creek. PDF 2019/2018 Rec 1116 LUBA affirms County approval of golf course site plan. “Satisfaction of the no net loss standard is ensured through compliance with Condition 38, not Condition 10. *** [We agree with intervenor that Condition 10 is concerned only with satisfaction of DCC 18.113.070(K) regarding the availability of water for resort use and mitigation for the volume of consumptive use, as required by OWRD under the water right.” LUBA No. 2020-095, June 11, 2021 Exhibit 29 Page 6 of 49 Exhibit 126 Page 79 of 204 LOLw El1. F silt'l Scuwlun, Wu,r,reusot{ & Wyl,rrATTORNEYS AT LAW i: Equitade center, 530 cent€f st., NE, suite 400, salem, 0R 97301 | Phone 503.540.a2s2 f Fa< 503.39€.1645 | wrvw,sdrwabe.coeir Menrne O. P.lcnr, Admitted in Oregon and Washington Dlrect Lire: Salem 503-54M260; Porfland S0i-796-ZAlZ E-Maift mpageJ@schwabe. com August 11, 2008 Anne Corcoran Briggs Hearings Officer c/o Deschutes County Planning Division 1f7 NW Lafayette Avenue Bend, OR 97701 Re: Clarification/Idodification of Addendum to Fish and Wildlife Mitigation Plan Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat Our File No.: 112188/138798 Dear Ms. Briggs: This letter is provided on behalf of our client, Thornburgh Resort, to confirm ' modifications to the Thornburgh Fish and Wildlife Mitigation Plan in response to comments from the Oregon Department cfFish and ri/ildlife (ODFW), and to respond to comments received during the public hearing process about the possible need for additional mitigation on Whychus Cteek. Modification of Mitigation PIan: Following Thornburgh's submission of its Addendurn Relating to Ground Water W'ithdrawals in April, 2008 f'Addendum'), ODFW requested modification of the plan to include removal of two existing dams/impoundment struchres on Deep Canyon Creek. The April Addendum described plans for removing only one dam in connection with acquisition of the water rights from Big Falls Ranch for mitigation purposes. Iu reviewing and commenting on the Addendum, ODFW requested that Thornburgh seek authorization to remove a second dam located just upstrearn of the Big Falls Ranch dam, on property owned by other parties. During the public hearing process on Thomburgh's Final Master Plan, Thornburgh indicated its willingness to remove the second dam as part of its Fish and Wildlife Mitigation Plan. This letter coafinns that intention and so modifies the Addendum. Thornburgh is also submitting into the hearing record documentation of its agreement with the owners of the second darn to authorize the dam removal. Porlland, OR 503.222.9981 j Salm .-\p "^^540.4262 | Bend, OR 541.749.4044 Seatde,WA 2W.622j711 | Vancower,Wd cti'.;,o94.7551 I Washington,OC ZOe.+ea,ag[tUBA NO, 20I5-I07 LUBA 00378 ,t PD)Ul I 2 I 88/l 38798A40p/2841 617.3 fasurw {4', /',.9LUBA 2019-136 AMENDED RECORD - Page 0983 Exhibit 29 Page 7 of 49 Exhibit 126 Page 80 of 204 Anne Corcoran Briggs August 11, 2008 Page 2 Possible Additional Modification Retating to Mitigation on Whychus Creek: During the hearing process, much attention was devoted to asserted impacts to Whychus Creek. The Yinger Report indicates a potential annual reduction of 106 acre-flet of flow in Whychus Creek (assuming 100% consumptive use) as a result of the proposed new glound water development for Thomburgh. Although Thornturgh disagrees with this contention - as described in detail other materials we have submitted for the record - Thornburgh does not want to be caught short if you determine that additional mitigation is required for possible impacts to Whychus Creek. Therefore, we are providing evidence to d.emonstrate that it would be feasible for Thomburgh to provide additional flow of 106 acre-feet per year in Whychus Creek, ifneeded to meet the county approval standard. This would be in addition to the amount of mitigation water already described in Thornburgh's Addendum. 'W'e have submitted into the record a leffer from Marc Thalacker, Manager of the Three Sisters ftrigation District, describing a proposed conservation project by the district that is expected to generate up to 500 acre-feet of water that will be protected as instream flow. This will be the final stage of a multi-phased project by the district that has already dennonstrated proven results in restoring stream flow in Whychus Creek by reducing irrigation diversions. Mr. Thalacker's letter confirms that Thornburgh could participate in this effort byproviding funding to offset the creation of 106-acre feet of water for instream flow through the consoryation project. Thornburgh strongly believes that all potential impacts to surface water resources and fish habitat are akeady completely mitigated under the terms and conditions of Thornburgh's water right approval, coupled with the additional measures described in the Addendum (as modified above by the commitrnent to remove the second dam on Deep Canyon Creek). Acquiring additional flow mitigation will be very costly - approximately $300,000 - and this offer is being made solely to preclude the possibilify of application denial on the basis of a finding that the mitigation Thornburgh has already proposed is insuffrcient. If you are persuaded that additional mitigation is required for impacts specific to Whychus Creek in order to meet the county approval standard, Thomburgh can provide such mitigation by participating in the Three Sisters Imigation District project. Sincerely, Martha O. Pagel MOP:kdo .,.-:- LUBA NO. 2015-IO7 LUBA ffiUU3fi)D 00379PD)Vt I 2 I 88/l 38798,ft40p/284 I 637.3 SM'LUBA 2019-136 AMENDED RECORD - Page 0984 Exhibit 29 Page 8 of 49 Exhibit 126 Page 81 of 204 s ! it "J Oregon Water Regources Department Water Rigfrts Division Water Rights APPlication Number G-15395 ilEegtvEt)Final Order Incorporat,iug $ettlemeut Agraement lt,tAR 2 S Z00iIlearing and Appeal Righto und,er Lhe provrsions of oRS 53?.1-?0 and oRS s37.622, rhe:iHii%g['flson&wtati may request a contested case hearing by submittirrg informat,ionrequired for a protest under ORS 53?.L53(6) or oRS 53'7.62L('1l. tothe Department within 14 days after t.he date of mailing of thieorder ae shown below. If a contested case hearing is regueeted,the Department musl schedule one. In the conEesEed case hearing, however, only Lhose iseuee based on the modificat,ions eo the proposed final order listed below may be addreesed. ORS 536.075 allows for additional appeal rights for other than contested case. rhis ie a final order in other than a contestedcase. Thie order is subject, to judicial review under ORS l-83.484.l\ny petition for judicial review of this order must be filed within the 60. day time period specified by oRS rS3.484(2). This statemenb of judicial review rights does not create a right tojudicial review of this order, if judicial review is otherwlseprecluded by 1aw. Where no changes have been made to a ProposedFinal Order on a water right application and no protests hawe beenfiled duri.ng the protest period, t,he final order is not subject Lojudicial review. AppTieation History On February 9, 2005, TIIORNBUReII UtfIJIrI GROUP, LLC. submitted anappllcaCion to the Departrnent for a water use perrnit. The Department, issued a Proposed Flnal Order on JuIy 25, 2006. Theprotest, period closed $eptember 8, ZCIO6- As requlred by OAR 690-505-05i.55, the applicant must submit proposed mitigatlon that meet,a th€ requirements of OAR 690-505- 0510 (2) - (5) . Pursuant to OAR 690.505-0620, a permit shalL not beiseued unt,il the applicanE provides documentary evidence thaEmiLigation water, in an amount satisfying t,he mit igationobligation, is legally protected instream. The applicant submitted a mitigation proposal to provide 1197.0acre feet of mibigat,ion water in the General Zone of Inpact on anincremental basis. On September 8, 2006, WaterWatch of Oregon, Inc., ("WaterWat,chn) submitted a proEesE, against t,he Proposed Final Order. As of March 22, 2007, Wat,erWatch, the applicant, and OWRD entered LUBA NO. 2015-107 LUBA *Eoct-1301 '11 ,# -..h..t " .,f o2712 LUBA 2019-136 AMENDED RECORD - Page 1007 Exhibit 29 Page 9 of 49 Exhibit 126 Page 82 of 204 .i i into a Set,tleqent, Agreement under which the igsues raised in the protesE were fully resolved with regard to this application, A copyof t,he Set,tlernent Agreement, ie atbached hereto and by Ehisreference incorporated herein. On i'tarch 22, 2AO7, Lhe applicant, through its agent, Martha O.Pagel, of Schwabe, williamson and Wyatt, subrnitted a revised incremental mitigation plan refleceing the termr of the Settlemenl Agreement,. Purguant to the Eerme of the Set,Llernent, Agrreement,. a water rightperrnit may be issued for up to 2,129 acre-feet per year of waEerfor quasi*municipal use, as follows: TASLE I Egtlmetcd Fall Bulld-out Watar Nccdr for Prdlnriuuy Plrnnlng Poal Flow B.rtc cFs Annsrl Yohrao Mlrlgr60n Obllgrtlor 5 St rter Urc TOTALS 9.t7 2,L29 tl 115{ rf Pursuant to the Settlernent Agreement, consuqptive use, and therelated rn:itigation obligation for eaeh component of bhe quasi- municipal use is calculated as follows: Golf Course lrrigation: During the first year of irrigation for each of the t,hree proposed go3.f coursea, applicant may uee up to3.0 acre-feet per acre so long as the toLal volume of r*at.erapplied in any given year does not exceed the maximum vol-umeauthorized under the permit or the applicable approved ptrase of development under an incremental development p1an. After thefirst year of irrigation, Lhe permanent, anrrual duty for golf courae irrigation shall be reduced to 2.24 acre-feet per acre. Consumptive use and the mitigation obligation shall be calculated aL lhe rate of 9Ot of the maximum perTrunent duty. St,andard Irrigati.on: The duty for standard irrigation shall be3.0 acre-feet per acre, The consulrptive uee and rnitigaEionobligation eha1l be calculated at a rate of 60t of the maximusrpelinanent duty. Reeenroir Maintenance: The consumptlve use and mitigationobligabion for reservoir mainEenance shall be calculated at therate of 100& of Uhe annual evaporation rat,e which is eet,ablished LUBA NO. 2015-107 LUBA #WF.-ffig o271s l-2n 195 rl l.ao 2lti tI 2.lg 971 tl ,.3 LUBA 2019-136 AMENDED RECORD - Page 1008 Exhibit 29 Page 10 of 49 Exhibit 126 Page 83 of 204 l aE ?.66 acre-feet per year. Other Quasi-Municipal: ihe consumptive use and mit,igationobligation for all other quasi-rm"rnicipal use under the permit shal1 be calculated at the rate of 40t of the maximum annual volume authorlzed under the permit. At any t,ime prior to iseuance of t,he permit, applicant shall have the option to modify bhe total annual volume of water authorizedfor any component of the guael-municipal use by submitting a rbvised Incremental Development Plan, provided that themodLfication doee not increase the total arrnual volume of water authorized under the Final Order. If Applicant, exercises thisoption, the water right permit and the mitigation obligat,ionshall be revised !o reflect tho *-l.ified volurnee of waEer, based on Ehe consurnptive use rates described above, as applicable. The permiE shal1 include a condit,ion reguiring measureilEnt andreporting of water use, ineluding a break-down for golf courseirrigaEioh, along with a]l other terms and eondit,ions describedin Lhe Final Order. The mitigation conditi-ons, along with other conditions in ttre attached draft permit, eha1l be contained 1n the permit, whenissued, for Application G-L6385. Mitlgat,ion Obligation :1,356.0 acre-feet in. Lhe Generalzone af Impact (Anywhere i-n Deechutes Basln above the Madrasgage, which is located belovr take Billy Chinook.) Mitigation Source;Mitigation Credit.s or a MitigationProject, in accordance viit,h Lhe incremental developmenr plan on fileu/ith the DepartmenE, meeting the requiremente of. OAR Chapber 690,Divislon 505 (Deschutee Ground WaLerMit,igation Rules) . Mitigation water must be IegalIy protected instream forinstream use within the General River Zone of ImpacL and committ,ed for the.life of the permit and subsequentcerEificate(s). Regulat,ion of the use and/or cancellation of Lhe permi!, or subsequent certificate (s) , will occur if therequired mitigation ie not maintained. The perrnittee ehall provide addit.ionaL mit,igation if the Department determines t,hat average annual consumptive uee ofthe subJect appropriation has increased beyond the originallyrnitigated amount. If mitigation ie from a secondary right for ELored water froma sEorage project not owned or operated by the permittee, the use of water under Lhis right ie subject to the terms and !f i,-3 LUBA NO. 2015-t07 LUBAffi42tm o2714 LUBA 2019-136 AMENDED RECORD - Page 1009 Exhibit 29 Page 11 of 49 Exhibit 126 Page 84 of 204 at! conditions of a valid contract. or a satisfactoryrepLacement, with the owner/operaEijr of the storag'e project,a copy of which must be on flle in the records of the WaterResources Departrftent prior eo use of water Fallure to comply with these mitsigation conditions shallresult in the Department regulating Ltre ground waLer permit,or eubeeguent cerLificate(e), proposing to deny any .permitextension applicaEion for the ground water permit, andproposing to cancel the ground water permit, or subsequentcert,if icaEe (s) . The following shall aleo apply to the irrigation cowq)onent ofof this applicat,ion: The amount of wat,er used for irrigatlon under this right,together with the arnount secured r:nder any other rightexisting for the same lands, is limited to a diverslon of ONE-EIGHTIETH of one cubic foot per second and 3.0 acre-feetfor each acre irrigated during the irrigation season of eachyear. The pennanent duL.y of water uge for golf courgeirrigation under Lhie right ie further limiued !o a diversionof 2.24 acre-feet for each acre irrigat,ed durlng theirrigation season of each year, as provided herein, Order Application G-16385 therefore ie approved with the abowemodificaEions to the Proposed Finat Order, and agconditioned. will ensure the preservat,ion of the publicwelfare, safety and health. A permlt coneietent with the attached draft. permiE shall beisgued only upon submleeion of documentary evidencedemonstrati.ng that the appropriate amount of mitigatsionwater {credits or rnit,igali-on project), or an alternate amountof mitigation in conjunetion with a npdified incrementalmitigation development plaF, meeting the reguirements of oAR690-505-05L0(2)-(5), within the General Zone of Impact, hasbeen obtained and Eatiefy the first Etage of incremental development. Thie flnal, order is issued approwing application G-1639scont,ingent upon tkre regulred first increment of nr-itigation be:,ng provided before a permit may be issued. Thie finalorder shall e>qgire 5 years after issuance unless the requiredfirst incrernent of mitigation 1s provided. OAR 690-505- 0620 (2) . Applicat.ion G-L5385 is rherefore approved as providedherein. Upon paymene of outstanding fees in the anpunt of $250.00, and upon submission of land use approval for theproposed user a permi.t, shalI be lssued authorizing the It' *F LUBA NO. 2015-107 LUBA #qffie{a$ I 02715LUBA 2019-136 AMENDED RECORD - Page 1010 Exhibit 29 Page 12 of 49 Exhibit 126 Page 85 of 204 ..,'.'.. 'l proposed water uge, Failure to mee,t, thie requlrement, wiehin 60 days from the date of this Final Order may result in the propoged rejection of the application. If you need to request. additional time, your wricten request should be received in the Salem office of the Department'within 60 days of Ehis F,inal order. Tbe DeparEment vrill evaluate the request and deEermine rrlhether or . not t'he reguest'may be approved DATED Mareh 22, 2097 uvtL Wat French, Administrator A Rights and Adjudicatione Di.visionforPhillip C. Ward, Director Qregon WaLer Resources Department 'l LUBANO.2015-107 lusa #he4ab2 o2716LUBA 2019-136 AMENDED RECORD - Page 1011 Exhibit 29 Page 13 of 49 Exhibit 126 Page 86 of 204 247-18-000386-TP/454-SP/592-MA Hearings Officer Decision HEARINGS OFFICER DECISION FILE NUMBER: 247-18-000386-TP / 454-SP / 592-MA APPLICANT/OWNER: Central Land and Cattle Company, LLC ATTORNEY: Liz Fancher REQUEST: Tentative Plan (TP) for Phase A-1 of the Thornburgh Destination Resort subdivision, Site Plan Review (SP) for associated utility facilities including a well, well house, pump house, reservoir, and interim subsurface sewage disposal system, and a Modification of Application (MA) for the Site Plan Review. STAFF CONTACT: Jacob Ripper, Senior Planner HEARINGS OFFICER: Dan R. Olsen This decision adopts and incorporates the Staff Report with minor edits and except as noted by “Hearings Officer”. I. BASIC FINDINGS: A. LOCATION: The proposed Thornburgh Destination Resort is large and is comprised of numerous tax lots. The lots which are subject to this application are in the southern portion of the destination resort are denoted with a (*) below. Map Number & Tax Lot Address 15-12-5000 11800 Eagle Crest Blvd. 15-12-5001 11810 Eagle Crest Blvd. 15-12-5002 11820 Eagle Crest Blvd. 15-12-7700* 67205 Cline Falls Rd.* 15-12-7701 67705 Cline Falls Rd. 15-12-7800* 67555 Cline Falls Rd.* 15-12-7801* 67525 Cline Falls Rd.* 15-12-7900* 67545 Cline Falls Rd.* 15-12-8000 67400 Barr Rd. B. LOT OF RECORD: The property subject to these applications is comprised of multiple lots of record. See file numbers LR-91-56 (tax lot 7800, one lot of record), LR-98-44 (tax lot 7900, one lot of record), and 247-14-000450-LR (tax lot 7700, four lots of record). Mailing Date: Tuesday, October 30, 2018 LUBA 2018-140 Record - Page 0041LUBA 2019-136 AMENDED RECORD - Page 1114 PDF 492Exhibit 29 Page 14 of 49 Exhibit 126 Page 87 of 204 The point of diversion for the Big Falls water rights is located at the confluence of the creek and the Deschutes River as shown on Figure 3. When the initial 175 acres of irrigation water rights are transferred to instream flow for Phase A mitigation, up to 2.07 cubic feet per second of flow that would otherwise be diverted from the creek for irrigation will remain in the creek as an instream water right. This additional flow will be protected instream from the authorized diversion point on the creek to the Deschutes River near River Mile 132.8, and downstream in the Deschutes River to Lake Billy Chinook near River Mile 120, a distance of nearly 13 miles. 2.OWRD Mitigation for Phase B/Full Build-Out Mitigation water for Phase B will come first from the transfer of the remainder of the Big Falls Ranch water rights. The locations of the Big Falls Ranch water rights for Phase B mitigation are shown on Figure 4. The remaining mitigation water will come primarily from water rights acquired within the COID that will be converted into mitigation credit through permanent instream transfers. The COID currently serves a total of approximately 45,000 acres of land. A significant portion of this land is expected to become converted to urban land uses in the next three to five years. Under the Ground Water Patron Policy, COID Patrons are given preference for the acquisition of water rights associated with these lands, before such water rights could be transferred outside of the District. As a result, Thornburgh is in a position to gain priority access to water rights available within COID for mitigation purposes. When such rights are acquired and transferred instream, they will be protected as instream flow rights from the COID diversion on the Deschutes River at Bend, downstream to Lake Billy Chinook. The Resort also has an agreement to purchase land with an additional 100.7 acres of water rights outside of the COID (McCabe Family Trust property.) Transfer of these rights to instream use would result in permanent protection under an instream flow right in the Deschutes River from the river River Mile 140 downstream to Lake Billy Chinook, a distance of about 20 miles. River Mile 140 is about 6.5 miles upstream from Lower Bridge. The location of the mitigation area is shown on Figure 5. Thornburgh does not plan to provide any of its required mitigation for Phase A or B through canal lining or piping projects that save water through increased efficiency of water use. Although such conservation measures can be beneficial by reducing current diversions of surface waters, the practice has been questioned as a means of providing mitigation water to offset new ground water pumping. In recognition of these concerns, Thornburgh will not utilize this option. E.Summary of OWRD Mitigation Plan Implementation of Thornburgh's water right mitigation plan would result in a total of 1,356 AF annual mitigation at full build-out. Approximately 836.82 AF,per year and 5.5 cfs of flow during the irrigation season would come from Deep Canyon Creek as a result of transferring the Big Falls Ranch water rights to instream flow rights. The remaining 6 LUBA 2018-140 Record - Page 0663LUBA 2019-136 AMENDED RECORD - Page 1736 Exhibit 29 Page 15 of 49 Exhibit 126 Page 88 of 204 519.18 AF per year is expected to come from upstream sources through the COID water rights that would be acquired and transferred instream, or in combination with the McCabe water rights. These mitigation measures, as required by OWRD, are specifically designed to offset impacts of ground water pumping. The initial Big Falls transfer of 175 acres is projected to result in 315 AF per year of mitigation water. This water, originating from springs, will flow to the Deschutes River. Transfer of the remaining 289.9 acres under the Big Falls water rights, as mitigation for Phase B, will generate an additional 521.82 AF per year from Deep Canyon Creek flow that otherwise would be diverted for irrigation use. This water, along with that resulting from the transfer of 175 acres for Phase A mitigation, will be protected as instream flow from approximately River Mile 132.8 downstream to Lake Billy Chinook, near River Mile 120. The Big Falls mitigation water offers the additional temperature benefit of providing relatively cool waters from Deep Canyon Creek. Mitigation transfers for remaining Resort needs (approximately 288.5 acres of water rights generating a total of at least 519.18 AF per year of mitigation water) will involve rights from the COID and the other sources under purchase options and agreements with the Resort. The instream flow created by these transfers is expected to be protected instream from the COID diversion at Bend, near River Mile 166.5, to Lake Billy Chinook near River Mile 120. Figure 5 shows the distribution of mitigation flows between the COID diversion at Bend and Lake Billy Chinook. IV.Fish Habitat Potentially Affected by Ground Water Use During the consultation process, ODFW identified two specific concerns with respect to potential impacts of ground water pumping on fish habitat: First, the potential for flow reduction due to hydraulic connection that could impact flows necessary for fish and wildlife resources in the Deschutes River system; and second, the potential for an increase in water temperature as a result of flow reductions from ground water pumping. Six species of fish were identified that could potentially be impacted: Redband Trout, Bull Trout, Brown Trout, Mountain Whitefish, Summer Steelhead and Spring Chinook. The general distribution of these fish species is shown on Figure 6. In its consultation with Thornburgh regarding these issues, ODFW recognized that the OWRD ground water mitigation program was specifically designed to identify and mitigate for the impacts of flow reduction as a result of new ground water pumping in the basin. Although the OWRD rules and USGS study on which the rules are based do not directly address temperature issues, ODFW also recognized that with the flow replacement required under OWRD rules the potential impact to temperature as a result of the Thornburgh project -or any similar individual project -is expected to be negligible... However, ODFW acknowledged a concern about the potential for cumulative impacts from on-going ground water development in the basin, over time. 7 LUBA 2018-140 Record - Page 0664LUBA 2019-136 AMENDED RECORD - Page 1737 Exhibit 29 Page 16 of 49 Exhibit 126 Page 89 of 204 In early correspondence on this issue, ODFW identified concerns about impacts on cold water springs and seeps in the Whychus Creek sub-basin as a result of Thornburgh ground water use, and indicated that the potentially affected resources would be classified as "Habitat Category 1" under the ODFW Fish and Wildlife Habitat Mitigation Policy ("ODFW Mitigation Policy", OAR Chapter 635, Division 414.) (Letter from Glen Ardt to Thornburgh, dated January 31, 2008.) Under the ODFW Mitigation Policy, Habitat Category 1 means the affected habitat is irreplaceable. In response to the letter, Thornburgh provided additional information to ODFW documenting the OWRD findings regarding the location of impact from Thornburgh wells in the Main Stem Deschutes River. Additionally, ODFW met with staff from OWRD and the Department of Environmental Quality concerning the potential Thornburgh impacts. As a result of this process and further internal review, ODFW revised its preliminary determination regarding the type of habitat potentially affected by the Resort, concluding the habitat would be classified as Habitat Category 2, not Habitat Category 1. This conclusion was based on ODFW's determination that temperature impacts to stream flow, if present, can be mitigated with appropriate actions. As used in the ODFW Mitigation Policy, "Habitat Category 2" describes essential habitat for a fish or wildlife species. Mitigation goals for this category of habitat are no net loss of either habitat quantity or quality and to provide a net benefit of habitat quantity or quality. OAR 635-414-0025(2). Based on input from ODFW during the consultation process, Thornburgh has identified the following mitigation and enhancement measures designed to ensure no net loss of habitat quantity or quality and to provide a net benefit for fish habitat. The measures reflect findings by OWRD that the Thornburgh project is expected to affect flow in the Main Stem Deschutes River. Given that finding, NCI determined the potential temperature impacts attributable to the project are expected to be slight and below levels that can be effectively measured. V.Mitigation and Enhancement Measures The proposed mitigation measures identified in consultation with ODFW are designed to ensure no net loss of habitat quantity or quality and net benefits to the resource: (A) compliance with OWRD mitigation requirements; (8) inclusion of the Big Falls Ranch water rights as part of the OWRD mitigation program to provide additional cold water benefits; (C) removal of an existing instream irrigation pond in connection with the transfer of Big Falls water rights; (D) elimination of existing ground water uses on the Resort property; and (E) a measure to provide $10,000 in funding to complete an on going thermal modeling project on Whychus Creek or a suitable alternative enhancement project. Collectively, these measures will address ODFW mitigation policy requirements and ensure compliance with the County land use standard. A.Compliance with OWRD Mitigation Requirements 8 LUBA 2018-140 Record - Page 0665LUBA 2019-136 AMENDED RECORD - Page 1738 PDF 1116Exhibit 29 Page 17 of 49 Exhibit 126 Page 90 of 204 S'I'ATE OF OREGON COUNTY OF DESCHUTES PERMIT TO APPROPRIATE THE PUBLIC WATERS THIS PERMIT IS HEREBY ISSUED TQ 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 . 2 8 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 DATE OF PRIORITY: FEBRUARY 9, 2005 WELL LOCATIONS: WELL 1: SE% NW%, SECTION 28, T15S, Rl2E, W.M.; 1800 FEET SOUTH AND 2335 FEET EAST FROM NW CORNER, SECTION 28 WELL 2: SE~ NW~. SECTION 29, TlSS, R12E, W.M.; 1655 FEET SOUTH AND 2750 FEET WEST FROM NE CORNER, SECTION 29 WELL 3: SW~ SW 1,4, SECTION 21, T15S, R12E, W.M.; 1100 FEET NORTH AND 400 FEET EAST FROM SW CORNER, SECTION 21 WELL 4: NE 1A SE 14, SECTION 20, ·r15S, R12E, W.M. i 2885 FEET SOUTH AND 750 FEET WEST FROM NE CORNER, SECTION 20 WELL 5: SW~ NE~. SECTION 20, T15S, R12E, W.M.; 2590 FEET SOUTH AND 1860 FEET WEST FROM NE CORNER, SECTION 20 WELL 6: SE~ NW~' SECTION 17, Tl5S, R12E, W.M.; 2375 FEET SOUTH AND 3615 FEET WEST FROM NE CORNER, SECTION 17 Application G-16385 Water Resources Department PERMIT G-17036 EXHIBITS LUBA 2018-140 Record - Page 1626LUBA 2019-136 AMENDED RECORD - Page 2699 Exhibit 29 Page 18 of 49 Exhibit 126 Page 91 of 204 Page 2 THE PLACE OF USE IS WITHIN THE BOUNDARIES OF THE THORNBURGH RESORT, BEING WI'I'HIN SECTIONS 17 I 20 I 21, 28 I 29 I AND 3 0; TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M. Th e amount o f water u sed f o r i rri gation und e r thi s right, together wi t h t he amount s ecu r ed under any o ther right existing f o r the same land s , i s l i mite d to a diversion of ONE-E I GHTIETH of one cubic foot per s ec ond and 3 .0 acre-feet for each acr e irrigat ed during t he i r rigati on s e ason o f eaab y ear . The amount of water us ed for golf cour s e i rrigation under thi s right is further l i mited to a di version of 2 .24 acre-feet for each acre irr i gat ed d uring t h e irr igation sea son 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 perrnittee to report general water use information, including the place and nature of use of water under the permit. B. 'I'he permi ttee shall allow the waterrnaster 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 appropria.tion 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 LUBA 2018-140 Record - Page 1627LUBA 2019-136 AMENDED RECORD - Page 2700 Exhibit 29 Page 19 of 49 Exhibit 126 Page 92 of 204 ' Page 3 Mitigation source: 111itigation 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, Di.vision 505 (Deschutes Ground Water Mitigation Rules} and OAR Chapter 690 Division 522, within the General Zone of Impact. Mitigation water must be legally protected ins l:ream 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 an file in the records of the Water Resources Department prior to use of water. The permit tee shall provide additional mi tiga ti on 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 not increase the rate or amount of water diversion before increasing the corresponding mitigation. The permittee shall seek and receive Department approval prior to changing the incremental permit development plan and related incremental mitigation. The permittee shall report to the Department the progress of implementing the incremental permit development plan and related mitigation 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. 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. Application G-16385 Water Resources Department PERMIT G-17036 LUBA 2018-140 Record - Page 1628LUBA 2019-136 AMENDED RECORD - Page 2701 Exhibit 29 Page 20 of 49 Exhibit 126 Page 93 of 204 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 an y 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 t .o jointly develop plans to mitigate interferences. The we l ls shall be constructed in accordance with the General Standards for the Const.ruction 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 file d by such wa ter users with the wat.ermaster, 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- 21'7 . The Director may require water-level or pump-t est 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 LUBA 2018-140 Record - Page 1629LUBA 2019-136 AMENDED RECORD - Page 2702 Exhibit 29 Page 21 of 49 Exhibit 126 Page 94 of 204 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 pennitted 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 permi ttee 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 /.~tt:r~ for Phillip C. Ward, Director Water Resources Department Application G-16385 Basin 5 Water Resources Department Volume 1 DESCHUTES R MISC PERMIT G-17036 11 LUBA 2018-140 Record - Page 1630LUBA 2019-136 AMENDED RECORD - Page 2703 Exhibit 29 Page 22 of 49 Exhibit 126 Page 95 of 204 Exhibit F Exhibit 29 Page 23 of 49 Exhibit 126 Page 96 of 204 Exhibit F Exhibit 29 Page 24 of 49 Exhibit 126 Page 97 of 204 Exhibit GExhibit 29 Page 25 of 49 Exhibit 126 Page 98 of 204 DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER THORNBURGH RESORT COMPANY FINAL MASTER PLAN FILE NUMBER: APPLICANT! OWNER: M-07-2; MA -08-6 Thornburgh Resort Company PO Box 264 Bend, OR 97702 APPLICANT'S Schwabe, Williamson & Wyatt, PC REPRESENTATIVE: Peter Livingston, Attorney at Law 1211 SW Fifth Avenue, Suite 1600 Portland, OR 97204 REQUEST: The Applicant requests approval of a Final Master Plan (FMP) and a Modification of Application (MA) for a 1,970 -acre Destination Resort located near Cline Buttes, west of Redmond. STAFF CONTACT: Ruth Herzer, Associate Planner HEARING DATES: DECISION ISSUED: June 17, 2008, continued to July 15, 2008 Record held open for written submittals until September 11, 2008 Final written legal argument submitted September 17, 2008 October 6, 2008 I. APPLICABLE CRITERIA: Title 18, Deschutes County Code, County Zoning Ordinance Chapter 18.113.090, .100, .110 Title 22, Deschutes County Land Use Procedures Ordinance Title 23, The Deschutes County Comprehensive Plan CU -05-20 CMP, issued by the Board of County Commissioners on May 11, 2006, and revised on remand from the Oregon Court of Appeals on April 9, 2008 Oregon Revised Statutes (ORS) Chapter 197.435 to 197.467 II. BASIC FINDINGS: A. LOCATION: The subject property consists of approximately 1,970 acres of land located west of Redmond, Oregon, on the south and west portions of a geologic feature known as Cline Buttes. The property is bordered on three sides by BLM land, and is also in close proximity to Eagle Crest, another destination resort development. The subject property is identified on County Assessor's Index Map 15-12, as tax lots 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900 and 8000.' 1 The applicant also has leased inholding parcels from the Department of State Lands for buffer and access roads. See August 12, 2008 rebuttal testimony, Ex. F-2. Exhibit HExhibit 29 Page 26 of 49 Exhibit 126 Page 99 of 204 B. ZONING: The subject properties are zoned Exclusive Farm Use (EFU-TRB). The subject properties are also mapped within the Destination Resort (DR) overlay zone for Deschutes County. C. SITE DESCRIPTION: The resort site is located on an approximately 1,970 -acre parcel located adjacent to Cline Buttes. This parcel was formerly a large ranch and has a varied terrain which includes rock outcroppings and drainage washes. On the upper portion of the property there are panoramic views of the Cascade Mountains. Vegetation consists of Juniper woodland with many old growth juniper trees. Three dwellings are located on the property along with the associated roads/driveways. Access to these dwellings is via Cline Falls Highway. D. SURROUNDING LAND USES: The site is surrounded by public land. Over seventy five percent of surrounding property is managed by the US Bureau of Land Management BLM). A central section is managed by the Oregon Department of State Lands (DSL). The applicant has acquired lease rights for the DSL property. Eagle Crest destination resort is located close to the northern portion of the proposed development. E. PROPOSAL: The applicant is requesting Final Master Plan (FMP) approval for the 1,970 -acre destination resort. The applicant has amended the Final Master Plan application to include the Wildlife Mitigation Plan as required by the remand decisions from the Court of Appeals and the Land Use Board of Appeals (LUBA). F. LAND USE HISTORY: CONCEPTUAL MASTER PLAN: The Conceptual Master Plan application was approved by the Board of County Commissioners (BOCC) on May 11, 2006 (file no. CU -05-20). The decision was appealed to LUBA and portions of that decision were further appealed to the Court of Appeals. Gould v. Deschutes County, 54 Or LUBA 205 (Gould I), rev'd and remanded 216 Or App 150, 171 P3d 1017 (Gould II.) These courts remanded the decision back to Deschutes County. The BOCC held a remand hearing on March 19, 2008. On April 9, 2008, the BOCC signed a decision that adopted much of the initial decision, and included additional findings and conditions. (Gould Ill.) The BOCC decision on remand was appealed to LUBA, which affirmed on September 11, 2008 Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2008-068, September 11, 2008), Court of Appeals review pending (Gould IV.) FINAL MASTER PLAN: An application for Final Master Plan approval was submitted on August 1, 2007 (file no. M-07-2). The application was deemed complete and accepted for review on August 31, 2007. On September 18, 2007 the applicant tolled the deadline for a final decision for 45 days. On December 14, 2008, the applicant again tolled the deadline for 45 days. A hearing was scheduled for February 12, 2008, and interested parties were notified of the hearing on January 4, 2008. The February 12, 2008 hearing was canceled at the applicant's request. In response to the Gould 111 decision, the applicant submitted a Modification of Application on April 21, 2008 which re -started the 150 day clock. This application was M-07-2; MA -08-6 Exhibit HExhibit 29 Page 27 of 49 Exhibit 126 Page 100 of 204 27. Road width shall be consistent with the requirements set forth in the County's subdivision ordinance, DCC Chapter 17.36. 28. See conditions #38 and #39. 29. Applicant shall abide at all times with the MOU with ODOT, regarding required improvements and contributions to improvements on ODOT administered roadways (Agreement Number 22759, dated 10/10/05). 30. Satisfied. 31. All exterior lighting must comply with the Deschutes County Covered Outdoor Lighting Ordinance per Section 15.10 of Title 15 of the DCC. 32. No permission to install helicopter landing zone (helipad) at the Resort is given or implied by this decision. 33. The Resort shall, in the first phase, provide for the following: A. At least 150 separate rentable units for visitor -oriented lodging. B. Visitor -oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. C. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 10.113.060 (A) (1) and (2) shall be at least $2,000,000 (in 1984 dollars). D. At least $2,000,000 (in 1984 dollars) shall be spent on developed residential facilities. E. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots. 34. Where construction disturbs native vegetation in open space areas that are to be retained in a substantially natural condition, Applicant shall restore the native vegetation. This requirement shall not apply to land that is improved for recreational uses, such as golf courses, hiking or nature trails or equestrian or bicycle paths. 35. The contract with the owners of units that will be used for overnight lodging by the general public shall contain language to the following effect: "[Unit Owner] shall make the unit available to [Thornburgh Resort/booking agent] for overnight rental use by the general public at least 45 weeks per calendar year through a central reservation and check-in service." 36. Applicant shall coordinate with the Sheriffs Office and its designated representative to address all public safety needs associated with the resort and the development process. 37. Satisfied. M-07-2; MA -08-6 29 Exhibit HExhibit 29 Page 28 of 49 Exhibit 126 Page 101 of 204 38. The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of off-site mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek. 39. The applicant shall provide funding to complete a conservation projectby the Three Sisters Irrigation District to restore 106 acre-feet of instream water to mitigate potential increase in stream temperatures in Whychus Creek. The applicant shall provide a copy of an agreement with the irrigation district detailing funding agreement prior to the completion of Phase A. Dated this 6th day of October, 2008. Mailed this day of October, 2008. OriAnneCorcoranggsHearings'Officer THIS DECISION IS FINAL UNLESS APPEALED IN ACCORDANCE WITH THE PROVISIONS OF DOG TITLE 22. M-07-2; MA -08-6 30 Exhibit HExhibit 29 Page 29 of 49 Exhibit 126 Page 102 of 204 Exhibit I Exhibit 29 Page 30 of 49 Exhibit 126 Page 103 of 204 Exhibit I Exhibit 29 Page 31 of 49 Exhibit 126 Page 104 of 204 Exhibit I Exhibit 29 Page 32 of 49 Exhibit 126 Page 105 of 204 Exhibit I Exhibit 29 Page 33 of 49 Exhibit 126 Page 106 of 204 Exhibit I Exhibit 29 Page 34 of 49 Exhibit 126 Page 107 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.1 79 Or LUBA 561 (Or Luba), 2019 WL 11505037 Land Use Board of Appeals State of Oregon ANNUNZIATA GOULD, Petitioner, vs. DESCHUTES COUNTY, Respondent, and CENTRAL LAND & CATTLE CO., LLC, Intervenor-Respondent. LUBA No. 2018-140 REMANDED June 21, 2019 Appeal from Deschutes County. **1 Jeffrey L. Kleinman, Portland, filed a petition for review and argued on behalf of petitioner. No appearance by Deschutes County. Liz Fancher, Bend, filed a reply brief and argued on behalf of intervenor-respondent. Exhibit 29 Page 35 of 49 Exhibit 126 Page 108 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.2 ZAMUDIO, Board Member; RUDD, Board Member, participated in the decision. RYAN, Board Chair, did not participate in the decision. 1. 1.1.1 Administrative Law - Interpretation of Law - Generally. 30.4 Zoning Ordinances - Interpretation. 31.3.12 Permits - Particular Uses - Destination Resorts. The fact that a tentative plan for a destination resort proposes a different pace of development than the final master plan, such as by sub-phasing development, does not materially affect the findings of fact on which the final master plan approval was based so as to constitute a “substantial change” to the final master plan, thereby requiring a new application, where neither the final master plan nor applicable regulations require that all development authorized in the first phase of the final master plan occurs at the same time. 2. 1.1.1 Administrative Law - Interpretation of Law - Generally. 30.4 Zoning Ordinances - Interpretation. *562 31.3.12 Permits - Particular Uses - Destination Resorts. Where the final master plan for a destination resort includes a mitigation plan requiring the applicant to replace the water consumed by the resort with a quantity and quality of water that will maintain fish habitat in an impacted stream, the fact that the tentative plan for one phase of development modifies the timing, but not the overall amount, of the mitigation water required to be provided does not materially affect the findings of fact on which the final master plan approval was based so as to constitute a “substantial change” to the final master plan, thereby requiring a new application, where there is no evidence that such modification will impact the efficacy of mitigation and there is evidence that such modification will result in more gradual, spread out impacts. 3. 25.3 Local Government Procedures - Compliance with Statutes - Hearings. 25.5 Local Government Procedures - Delegation of Authority. 31.3.12 Permits - Particular Uses - Destination Resorts. Where a local code provision requires applicants for destination resorts to demonstrate that “[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource,” where a proposed resort's consumptive use of groundwater is anticipated to impact the quantity and quality of water in an offsite stream, and where the applicant's final master plan includes a mitigation plan requiring the applicant to replace the water consumed by the resort with a quantity and quality of water that will maintain fish habitat in the stream, the local government may not impose a condition of approval allowing the applicant to demonstrate that the source of the mitigation water provides the requisite quantity and quality of water at a later date without review or input by interested persons. **2 *563 Opinion by Zamudio. NATURE OF THE DECISION Petitioner challenges a decision by a county hearings officer approving a tentative plan, site plan review, and site plan review application modification for phased development of a destination resort. Exhibit 29 Page 36 of 49 Exhibit 126 Page 109 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.3 REPLY BRIEF Petitioner moves to file a reply brief to respond to new matters raised in the response brief filed by intervenor-respondent Central Land & Cattle Company, LLC (intervenor). Intervenor does not oppose the reply brief and it is allowed. FACTS A destination resort is a “self-contained development providing visitor-oriented accommodations and developed recreational facilities in a setting with high natural amenities.” Oregon Statewide Planning Goal 8 (Recreation); see also ORS 197.445 (providing similar destination resort definition). Local governments may plan for the siting of destination resorts on rural lands, subject to the provisions of state law. Id.; ORS 197.435 - 197.467. A destination resort may include residential dwellings, but the number of residential units is limited by the number of visitor-oriented overnight lodging units (OLUs), as explained further below. In 2006, the county approved the Thornburgh Resort conceptual master plan (CMP) and, in 2008, approved a final master plan (FMP). Those approvals were ultimately upheld after multiple rounds of appeals. This case is the eighth time that this land use dispute around the proposed Thornburgh Resort has been before this Board. We last summarized our prior cases in Gould v. Deschutes County, 78 Or LUBA 118, 119 (2018). A general summary of those prior appeals is not necessary or useful for this case. We discuss specific prior appellate decisions in our analysis of the assignments of error below. The subject property consists of approximately 1,970 acres of land zoned for exclusive farm use and mapped within the destination resort overlay zone. The property was formerly used as a large ranch and is surrounded by public land managed by the US Bureau of Land Management (BLM) and Oregon Department of State Lands. The FMP provides for phased development and fish and wildlife habitat mitigation (the mitigation plan) to offset the impacts of the resort development. *564 The resort will include residential dwellings and OLUs. Recreational amenities will include two golf clubhouses, a recreation center, a spa and fitness center, and swimming pools and associated structures. Planned visitor-oriented facilities will include restaurants, convention facilities, business center, art gallery, and cultural center. The resort will include approximately 1,293 acres of open space, (approximately 66% of the entire acreage of the resort) planned as a golf course, common areas, and buffer areas. Record 196-97. The FMP divides the development into seven phases. The first phase, Phase A, includes development of transportation infrastructure, golf course, restaurant, meeting facilities, open space, 300 residential units, and 150 OLUs, with the first 50 OLUs to be constructed before any sale of residential lots, and financial assurance (bonding) for another 100 OLUs, and implementation of the mitigation plan. Record 4. **3 As noted, the county's decision approving the FMP was ultimately affirmed after multiple rounds of appeals. In May 2018, intervenor sought approval for the first phase of development. Intervenor requested approval of a tentative plan for a portion of the approved Phase A, calling the partial subphase “Phase A-1,” which includes a tentative subdivision plat for 192 single-family residential dwelling lots, 24 single-family deed restricted OLU lots, and 13 OLU lots, together with roads, utility facilities, lots, and tracts for future resort facilities and open space. Intervenor also applied for site plan review for a well, well house, pump house, reservoir, and sewage disposal. In this decision we refer to the approvals, collectively, as the tentative plan or TP. Record 1551. The county hearings officer approved with conditions the tentative plan for Phase A-1. This appeal followed. FIRST ASSIGNMENT OF ERROR In the first assignment of error, petitioner challenges the hearings officer's decision that the tentative plan meets the requirements in the FMP and destination resort regulations for phased development of OLUs and visitor-oriented recreational facilities. Exhibit 29 Page 37 of 49 Exhibit 126 Page 110 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.4 A. Overnight Lodging Units A destination resort may include residential units, limited by the number of OLUs.1 A destination resort CMP must include a mechanism to *565 ensure a minimum of 150 OLUs, and a maximum ratio of 2.5 residential units for each OLU (OLU Ratio). DCC 18.113.050(B)(21).2 The first 50 OLUs must be constructed prior to the closure of sales, rental, or lease of any residential dwelling or lot. DCC 18.113.060(A)(1)(a). At least 50 of the remaining 100 required OLUs must be constructed or guaranteed through surety bonding or equivalent financial assurance within five years of the close of the sale of individual lots or units, and the remaining 50 required OLUs must be constructed or guaranteed through surety bonding or equivalent financial assurance within 10 years of the close of the sale of individual lots or units. DCC 18.113.060(A)(1)(b). The maximum 2.5:1 OLU Ratio may not be exceeded at any phase of the development. DCC 18.113.060(A)(1)(b)(iv). If the resort does not phase development of the OLUs, then the required 150 OLUs must be constructed prior to the closure of sales, rental, or lease of any residential dwelling or lot. DCC 18.113.060(A)(1)(c). In the FMP phasing, Phase A involved the development of 300 residential units and 150 OLUs for a 2.0 OLU Ratio. Record 4, 61, 63. FMP Conditions of approval 21 and 33 required 50 OLUs be constructed in the first phase of development and an additional 100 OLUs be constructed or bonded.3 *566 1 The FMP provides that the approval was “based upon the submitted plan,” and that “[a]ny substantial change to the approved plan will require a new application.” Record 217. DCC 18.113.080 provides that any substantial change proposed to an approved CMP must be reviewed in the same manner as the original CMP.4 “Substantial change to an approved CMP, as used in DCC18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected.” DCC 18.113.080 (emphasis added). The hearings officer reasoned that DCC 18.113.080, which applies to changes between the CMP and FMP, provides guidance for evaluating whether the tentative plan conforms to the FMP. The hearings officer concluded that the subphasing proposed in the tentative plan did not constitute a substantial change to the FMP. Petitioner argues that Phase A-1 is not approved by the CMP and FMP, and that subphasing is a substantial change to the approved plan. **4 *567 Phase A-1 provides for division and development of 192 residential lots, division of 37 lots for approximately 110 OLUs, and bonding for approximately 40 OLUs, for a 1.28 OLU Ratio (192 RUs to 150 OLUs). Record 63. The hearings officer found that the different pace of development (subphasing) in Phase A-1 did not modify the FMP, because the FMP and applicable resort regulations do not require all development authorized in Phase A occur at the same time and that the different pace of development does not affect the material facts or compliance with relevant approval criteria. Record 63. The hearings officer observed that 50 OLUs must be constructed, and 150 total OLUs must be constructed or bonded prior to the sale of a residential lot.5 Petitioner has not established that the different pace of development in Phase A-1 alters the phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected. Under Phase A-1, no residential lot can be sold or rented until the OLU requirements are satisfied. This is consistent with the FMP and applicable regulations. The hearings officer did not misconstrue applicable law in concluding that Phase A-1 did not materially affect the FMP approval for phased development of OLUs. Petitioner argues that the decision is based on inadequate findings because no part of the plan for Phase A-1 shows how the first 50 OLUs will be constructed. Intervenor responds, and we agree, that it may obtain approval of a tentative plan without providing details about the OLU construction. The residential units may not be sold, leased, or rented until the OLUs are built and assured through financing. Intervenor states that after the tentative site plan is approved, intervenor will subsequently submit site plans that show how the *568 lots will be developed to provide the OLUs and recreational amenities. Record 1562. Exhibit 29 Page 38 of 49 Exhibit 126 Page 111 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.5 Petitioner argues that the hearings officer erred in approving the tentative plan because the plan does not describe the OLU structures in sufficient detail to establish whether they qualify as OLUs as defined in DCC 18.04.030. See n 1. Petitioner argues that the proposed ownership, location, and design of the OLUs factor into whether a structure qualifies as an OLU. Intervenor responds that the county's prior CMP/FMP decision, and related appeals, resolved the OLU issue. We agree. In Gould v. Deschutes County, 54 Or LUBA 205, 232 rev'd and rem'd on other grounds, 216 Or App 150, 171 P3d 1017 (2007) (Gould CMP II), we reasoned that the resort CMP proposed construction of 50 cottages with lockout facilities (to ensure 150 separate rentable units are available within the first phase) satisfied DCC 18.113.050(B)(8), which requires “A description of the proposed order and schedule for phasing, if any, of all development including an explanation of when facilities will be provided and how they will be secured if not completed prior to closure of sale of individual lots or units[.]” Petitioner does not contend that anything in the tentative plan changes the CMP/FMP provision for OLUs, and we do not understand that it does. The hearings officer did not err by failing to require intervenor to submit detailed plans for the cottages that will provide the required OLUs. **5 Petitioner argues that the challenged decision conflicts with the decisions in a line of destination resort cases that we have referred to as the Caldera cases. See Central Oregon Landwatch v. Deschutes County, 74 Or LUBA 540 (2016) (Caldera I), rev'd and remanded, 285 Or App 267, 396 P3d 968 (2017) (Caldera II); Central Oregon Landwatch v. Deschutes County, 76 Or LUBA 6 (2017) (Caldera III). The Caldera cases concerned an expansion of an existing destination resort called Caldera Springs Resort. The existing resort included 38 single-family vacation homes with three to five bedrooms. Each bedroom has an en suite bathroom and outside entrance and could be locked off from the main cabin and the outside (lock-off rooms). The county approved the expansion, including 395 new single-family dwellings and an additional 95 OLUs. Caldera I, 74 Or LUBA at 544. On appeal, the petitioner argued that the lock-off rooms in the existing resort could not be counted as separate OLUs. The intervenor responded that argument was an impermissible collateral attack on the existing resort approval. We reasoned that the petitioner's argument that the existing lock-off rooms that were part of the prior-approved resort could not be counted to satisfy the overall OLU requirement for the expansion was not an impermissible collateral attack on a prior decision because the challenged *569 expansion approval criteria, DCC 18.113.025(B), required the county to determine that the entire resort facility, including the existing facilities, satisfied all the requirements for a destination resort. Caldera I, 74 Or LUBA at 552.6 The Court of Appeals affirmed that part of our decision. Caldera II, 285 Or App at 282. On the merits, the intervenor in Caldera invoked Gould CMP II, 54 Or LUBA 205, arguing that we had approved inclusion of similar lock-off rooms in the calculation of OLUs in that case. We explained that the petitioner's challenge in Gould CMP II was narrow--the petitioner had argued to us that the fact that the OLUs could be converted to residential units in the future required denial of the CMP. In Caldera I, we explained that, in Gould CMP II, no party argued that the proposed lock-off units did not qualify as OLUs. Caldera I, 74 Or LUBA at 552-55. In Caldera I, we determined that the individual lock-off rooms do not qualify as OLUs under the statutory definition in ORS 197.435(5)(b). See n 1; Caldera I, 74 Or LUBA at 552-55. The Court of Appeals reversed and remanded our decision on that statutory interpretation issue. Caldera II, 285 Or App 267. Ultimately, we remanded the decision to the county for further findings. Caldera III, 76 Or LUBA 6. As an initial matter, the Caldera cases do not provide a definitive rule regarding what type of rentable accommodations satisfy the OLU definition. Instead, the Caldera cases concluded that whether an accommodation meets the OLU definition requires a fact-specific inquiry. Thus, the Caldera cases do not provide a general rule that lock-off accommodations cannot qualify as OLUs. **6 *570 Second, and more importantly, this case is distinguishable from the Caldera cases on the issue of collateral attack. The Caldera cases involved the review of a CMP for a resort expansion, and specific resort expansion criteria reopened the issue of whether the lock-off rooms in the approved resort qualified as OLUs. Differently, the challenged decision in this appeal Exhibit 29 Page 39 of 49 Exhibit 126 Page 112 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.6 is a tentative plan under an approved CMP/FMP. Even if the Caldera cases controlled the issue of what type of accommodations qualify as OLUs, the tentative plan approval could not violate the Caldera cases because the tentative plan approval does not decide whether the specific design of the OLUs meets the definition of OLU. The character of the OLUs, and whether they met the definition of OLU, was decided in the CMP approval and not challenged on appeal from the CMP approval in Gould CMP II. That issue is settled, unless and until the resort seeks approval from the county to modify the design of the required OLUs. See Safeway, Inc. v. City of North Bend, 47 Or LUBA 489, 500 (2004) (“As a general principle, issues that were conclusively resolved in a final discretionary land use decision, or that could have been but were not raised and resolved in that earlier proceeding, cannot be raised to challenge a subsequent application for permits necessary to carry out the earlier final decision.”). Thus, even if we agreed with petitioner that the approved OLU design is inconsistent with the decisions in the Caldera cases, an issue on which we express no opinion, that conclusion would provide no basis for reversal or remand in this appeal because that issue is not subject to collateral attack in subsequent applications carrying out the FMP. The hearings officer did not err in approving a tentative plan that did not include detailed plans for the cottages that will provide the required OLUs. B. Visitor-oriented Recreational Facilities In addition to establishing compliance with the FMP, each development phase of a destination resort must receive additional approval through site plan review or the subdivision process. DCC 18.113.040(C).7 Petitioner argued to the hearings officer that the tentative plan failed to provide information required for a subdivision approval. Specifically, DCC *571 17.16.030(C) requires that the following information “be shown on the tentative plan or provided in accompanying materials”: “5. Location, approximate area and dimensions of any lot or area proposed for public use, the use proposed, and plans for improvements or development thereof; 6. Proposed use, location, approximate area and dimensions of any lot intended for nonresidential use.” DCC 17.16.030(C) provides that “[n]o tentative plan shall be considered complete unless all such information is provided.” Petitioner argues that the tentative plan fails to show the required information for the recreational amenities, restaurant, and meeting facilities. Intervenor responds that DCC 17.16.030(C) provides application submittal requirements but does not constitute approval criteria. Intervenor argues that petitioner has not established that the absence of specific information required by DCC 17.16.030(C)(5) and (6) results in noncompliance with any approval criteria. **7 Intervenor relies on Conte v. City of Eugene, 78 Or LUBA 289 (2018), aff'd, 295 Or App 789, 434 P3d 984 (2019). Like this case, Conte involved multiple trips up and down the appeal ladder. The petitioner appealed a city hearings officer's decision approving an application for final planned unit development (PUD) approval. The tentative plan approval imposed a condition, Condition 20, to ensure that the PUD provide “safe and adequate” transportation systems to nearby areas as required by the city's code. Id. (slip op at 4). The petitioner argued that the intervenor was required to submit new or amended ““final maps and supplemental materials” as supplements to its final PUD application. Id. (slip op at 9). Similar to petitioner in this case, the petitioner in Conte invoked an application requirements for a final PUD that requires applications contain, among other things, final maps and supplemental materials to demonstrate compliance with tentative plan conditions of approval, including evidence that all required public improvement have been completed or financially assured. The city hearings officer observed that the application requirements are not approval criteria, “and that the failure to satisfy application requirements can only serve as a basis to deny an application if the required information is necessary to demonstrate compliance with an applicable approval criterion.” Id. (slip op at 10). The hearings officer also concluded that maps and supplemental drawings are not required to be submitted in order to demonstrate that the final PUD plan conforms with the tentative PUD plan and all conditions. The hearings officer observed that Condition 20 required the *572 street improvement Exhibit 29 Page 40 of 49 Exhibit 126 Page 113 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.7 be completed “[p]rior to occupancy” rather than prior to final PUD approval. Id. We affirmed the hearings officer's interpretation of the city's final PUD submission requirements. Our reasoning in Conte requires the same result in this appeal. DCC 17.16.030(C) requires that certain information be provided in an application for a tentative subdivision plan. 18.113.040(C) requires that “[e]ach * * * development phase of the destination resort must receive additional approval through the required site plan review (DCC 18.124) or subdivision process (DCC Title 17).” Petitioner has not explained how, absent the information required by DCC 17.16.030(C)(5) and (6), approval of a tentative plan would violate some portion of the destination resort approval criteria or the FMP. The FMP requires that the recreational amenities, restaurant, and meeting room facilities be provided or bonded before the sale of lots. See also ORS 197.465(3) (requiring that in phased developments recreational amenities intended to serve a phase must be constructed prior to sales of residential units in that phase). Petitioner has not demonstrated that the violation of the submission requirements contained DCC 17.16.030(C) resulted in non-compliance with at least one mandatory approval criteria. We agree with inventor that petitioner's argument under DCC 17.16.030(C) provides no basis for reversal or remand. See Le Roux v. Malheur County, 32 Or LUBA 124, 129 (1996) (the fact that application requirements may not have been satisfied provides no basis for remand unless the failure to satisfy the requirements resulted in noncompliance with at least one mandatory approval criteria). Like Conte, where the required street improvements were required to be completed “[p]rior to occupancy” rather than prior to final PUD approval, it appears to us that subsequent application and review for the resort development will ensure compliance with the subdivision and FMP requirements. **8 The first assignment of error is denied. SECOND ASSIGNMENT OF ERROR In the second assignment of error, petitioner argues that the approved tentative plan violates mitigation requirements for impacts of the development on protected fish and wildlife resources. To satisfy destination resort approval criteria, intervenor is required to demonstrate that “[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource.” DCC 18.113.070(D). The resort's impact on fish and wildlife, and the efficacy of required mitigation, was litigated over the course of multiple prior appeals, as we explained in Gould v. *573 Deschutes County, 78 Or LUBA 118 (2018). We have referred to the DCC 18.113.070(D) standard as the “no net loss/degradation” standard. Id. In Gould v. Deschutes County, 216 Or App 150, 171 P3d 1017 (2007), the Court of Appeals held that the county's determinations on wildlife impacts and mitigation were inadequate to satisfy the applicable criteria for the CMP. The FMP includes a revised fish and wildlife mitigation plan that the applicant prepared in coordination with Oregon Department of Fish and Wildlife (ODFW) and BLM (mitigation plan). The mitigation plan was challenged in multiple rounds of appeals, and ultimately upheld in Gould, 78 Or LUBA 118. In this appeal, petitioner does not challenge the mitigation plan, but instead challenges the Phase 1-A approval as inconsistent with the mitigation plan, as explained further below. A. Water There are no existing natural streams, ponds, wetlands, or riparian areas on the site. The resort water supply will be groundwater obtained from six wells on the property. The applicant obtained 2,129 acre-feet of water rights to support the resort development year-round.8 The Oregon Water Resources Department (OWRD) granted the water right upon finding that intervenor is responsible for providing 1,356 total acre-feet of mitigation water: 836 acre-feet from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch, and the remaining mitigation water from the Central Oregon Irrigation District (COID).9 *574 The resort'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. The mitigation plan requires intervenor to replace the Exhibit 29 Page 41 of 49 Exhibit 126 Page 114 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.8 water consumed by the resort with volumes and quality of water that will maintain fish habitat, especially cold water thermal refugia. The county found that the mitigation plan will result in no net loss/degradation to fish and wildlife resources. 1. Sub-phasing The mitigation plan requires intervenor to provide in-stream mitigation water ““in advance for the full amount of water to be pumped under each phase of development,” including an estimated 610 acre feet (AF) of water in Phase A and 1,201 AF in Phase B. Record 661-63. Big Falls Ranch and COID were identified as sources of the mitigation water. Record 661. The impact of the resort water use on thermal refugia for fish was central to disputes in prior appeals. See Gould, 78 Or LUBA 118. **9 Petitioner argues that sub-phasing Phase A impacts the mitigation plan so that it is unknown whether any negative impact on fish will be completely mitigated. Petition for Review 40. Petitioner contends that the changes required a new application for CMP and FMP review, or an application for a modification of the FMP. Petition for Review 42. Intervenor responds, and we agree, that the mitigation plan was not specifically tied to or dependent upon the stages of phased development approved in the FMP. Instead, mitigation is planned to occur as development occurs. FMP Condition 10 requires intervenor to submit documentation that mitigation and a water rights permit has been issued for each development phase. See n 9. We do not read that condition to require the specific phasing stages approved in the FMP. Instead, we agree with intervenor that because water mitigation is based on consumptive use, the condition requires proof of adequate water rights and mitigation commensurate with the estimated consumptive use of water for the development approved at each phase of development, and in advance of actual water consumption. While intervenor ultimately bears the burden to establish that the resort development will result in no net loss/degradation to fish and wildlife resources, petitioner has not *575 argued or established that subphasing materially affects the findings underlying the mitigation plan for phased development. The hearings officer did not err in concluding that subphasing did not require a new application for CMP and FMP review, or an application for a modification of the FMP. This subassignment of error is denied. 2. Incremental Development Plan In July 2018, OWRD approved a change to an OWRD permit related to the incremental development plan (IDP).10 Petitioner contends that the IDP includes changes to the amount of mitigation water and timing of providing mitigation water. Consumptive use for Phase A is estimated at 610 AF per year.11 Record 659. Petitioner argues that the IDP reduces mitigation water in Phase A from 610 AF to 203 AF, with 50 AF to be provided as part of Phase A-1, and violates the FMP condition that all mitigation water be provided in Phases A and B. 2 The hearings officer found that the tentative plan did not propose to modify the overall amount of mitigation water required to be provided in the mitigation plan but, instead, modified the timing of when the mitigation water would be provided based on consumptive use. Record 67-68. The hearings officer reasoned that the mitigation plan and related IDP “provide a framework for estimating use, consumptive use and mitigation, but were not intended to lock in a certain development pattern or timing.” Record 68. The hearings officer observed that the record contained “no evidence that modifying the IDP to reflect the current resort development schedule in any way impacts the efficacy of mitigation and [intervenor's] expert's testimony is that it will not. To the contrary, there is evidence that the longer timeframe for water consumption will result in more gradual, spread out impacts.” Record 68. The hearings officer found that the tentative plan for Phase A-1 refinement to the mitigation plan regarding timing of mitigation is not substantial. Id. **10 Petitioner argues that the changes to the mitigation plan require intervenor to apply for a modification to the CMP/FMP to justify the changes. Petition for Review 50. However, petitioner has not established that any finding of fact on which the original Exhibit 29 Page 42 of 49 Exhibit 126 Page 115 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.9 approval was based would be materially *576 affected by the alteration in mitigation water timing, which remains attached to consumptive use. Accordingly, petitioner's argument regarding the timing of mitigation provides no basis for remand. The mitigation plan provides that “mitigation must be provided in advance for the full amount of water to be pumped under each phase of development.” Record 65. “The mitigation obligation for Phase A is 610 AF, equal to consumptive use. Maximum water use for Phase B is 2,129 AF per year (full build-out, including Phase A use).” Record 661. FMP Condition 10 provides: “10. Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase.” Record 217. In an attempt to demonstrate compliance with FMP Condition 10, in material submitted in support of the application in this proceeding, intervenor stated, ““the full amount of the mitigation that will be required by this TP is approximately 50 acres of water[,]” and “the amount of mitigation that will be required for the entirety of the Phase A development, including numerous elements to be applied for in subsequent site plans, is 203 acres of mitigation.” Record 997. Before the hearings officer, petitioner argued that amount of mitigation was inadequate to satisfy the FMP mitigation requirement. Intervenor responded with expert opinion that the proposed subphasing would spread water impacts over a longer period, but that the overall amount of mitigation would not be changed and must provide mitigation water in advance of water use. Record 65-66. Petitioner objected to the submission of the expert evidence on procedural grounds but does not appear to have attempted to respond with contrary evidence. Record 66. The hearings officer accepted intervenor's expert evidence over petitioner's objection. Id. On appeal, petitioner does not assert any procedural error with respect to that evidence. The hearings officer agreed with petitioner that the approximately 50 AF refers to the water use for the 192 residential units planned in Phase A-1, which does not include the OLUs or any other use required to be provided in Phase A. Record 65. The hearings officer also appears to have agreed with petitioner that the tentative plan reduced the mitigation from 610 to 203 AF for Phase A and changed the timing from in advance of each phase to after construction. Id. Nevertheless, the hearings officer found that the change or refinement in the mitigation plan is not a substantial change because the required mitigation plan requires mitigation for use of water and, “if there is no water use, there is no impact.” Record 67-68. The hearings officer observed *577 that the record contained no evidence that modifying the mitigation to reflect the current resort development schedule in any way impacts the efficacy of mitigation and the only evidence in the record is that “the longer timeframe for water consumption will result in more gradual spread out impacts.” Record 68. **11 Petitioner argues that, even if intervenor could alter the mitigation plan without an application modification approval, as we have concluded, intervenor's proposed 50 AF of mitigation water for Phase A-1, will cover consumptive use of water for 192 residential dwellings, but does not include consumptive use of water for the OLUs and other uses required to be provided in Phase A-1. Petition for Review 51. Intervenor responds that that it has not requested, and the county has not approved, any reduction in required mitigation. Instead, intervenor contends that the 50 AF consumptive use for Phase A-1 was provided as an estimate to satisfy the information requirement of FMP Condition 10, quoted above. Intervenor concedes that the 50 AF estimate does not include the OLUs proposed to be developed in Phase A-1. Intervenor argues that omission does not violate the FMP mitigation plan because, under the current IDP, intervenor is required to provide 319.4 AF of mitigation water before pumping water for the uses allowed by the tentative approval for Phase A-1. Response Brief 40-41. We agree with intervenor that the challenged decision does not approve a reduction in the mitigation water or modify the requirement that mitigation water be provided in advance of water consumption. Petitioner has not established that the changes in the amount and timing of mitigation water materially affect the findings underlying the mitigation plan. Exhibit 29 Page 43 of 49 Exhibit 126 Page 116 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.10 Petitioner also argues that the IDP change in mitigation quantity was carried out without an opportunity for public comment. Petition for Review 51. That argument is not developed sufficiently for our review. Deschutes Development Co. v. Deschutes County, 5 Or LUBA 218, 220 (1982). This subassignment of error is denied. 3. Mitigation Water Sources 3 The hearings officer found that the mitigation plan relies on mitigation water acquired from the COID and Big Falls Ranch. Record 69-70. Petitioner submitted a statement from COID that there are no current or active agreements between COID and the resort and a document suggesting that Big Falls Ranch proposes to transfer surface water rights that the resort had intended to acquire for mitigation water. Record 69. Intervenor responded that *578 the mitigation plan did not “mandate” COID and Big Falls Ranch water, but instead authorized mitigation water within a general zone. Id. The hearings officer rejected intervenor's argument and found that, in approving the mitigation plan as part of the FMP, “both ODFW and the Hearings Officer relied on those sources in reaching their respective conclusions that mitigation was adequate.” Id. The hearings officer concluded that petitioner's evidence was “sufficient evidence to call into question whether obtaining water from those sources remains feasible,” and found that a change in the source of mitigation water “may constitute a substantial modification to the FMP approval.” Record 70. The hearings officer further found that the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. However, the hearings officer concluded that compliance with the mitigation plan and, implicitly, the no net loss/degradation standard that the mitigation plan was designed to satisfy, could be met by imposing the following condition of approval: **12 “17. Site design approval. Prior to issuance of building permits for the single-family dwellings, obtain design approval for at least 50 OLUs, which approval shall demonstrate that: (a) the OLUs qualify as such and (b) the Big [Falls] Ranch and COID water referenced in the Mitigation Plan and FMP decision have been secured, [or] demonstrate that the proposed alternate source is acceptable to ODFW and provides the same quantity and quality mitigation so as not to constitute a substantial modification or justify a modification to the FMP.” Record 117 (boldface omitted). Petitioner argues that TP Condition 17 impermissibly allows a modification of the mitigation plan without providing an opportunity for further public input on the issue of whether any proposed alternate source of mitigation water provides “the same quantity and quality mitigation” to satisfy the no net loss/degradation standard. Petition for Review 54. We agree. A local government may defer a decision on approval criteria to a later date, so long as the local government finds that it is feasible to satisfy the approval criteria and “so long as interested parties receive a full opportunity to be heard before the decision becomes final.” Meyer v. City of Portland, 67 Or App 274, 280, 678 P2d 741, 744 (1984). As pertinent here, the court explained in Gould v. Deschutes County, 216 Or App 150, 163, 171 P3d 1017 (2007): “The code mandates that the approval standards be evaluated ‘from substantial evidence in the record.’ DCC 18.113.070(D). That provision requires that the justification be based on evidence submitted at public hearings on the application. The county's decision, however, allows the mitigation plan justification to be established by future discussions among Thornburgh, ODFW, and BLM, and not on evidence submitted during the *579 public hearings. That robs interested persons of the participatory rights allowed by the county ordinance.” Intervenor responds that the FMP did not require mitigation water be sourced from water provided by the COID and Big Falls Ranch and that the issue of feasibility of obtaining water from COID was settled in prior appeals. Intervenor's response misses the mark. As the hearings officer found, the mitigation plan relies on both quantity and quality of mitigation water acquired from the COID and Big Falls Ranch and the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. The no net loss/degradation issue has been litigated at length Exhibit 29 Page 44 of 49 Exhibit 126 Page 117 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.11 and affirmed based on facts and expert evidence modeled on assumptions of water sourced from COID and Big Falls Ranch, which includes the quality of those sources, including water temperature, and impacts on downstream fish habitat. As the court explained in Gould, the public is entitled to a hearing on whether the no net loss/degradation standard will be satisfied by mitigation. See DCC 18.113.070(D) (requiring that “[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource”). The hearings officer's decision and TP Condition 17 allow a change in mitigation water source with the question of whether the new source satisfies the “no net loss/ degradation standard” to be evaluated solely among intervenor, ODFW, and the county without review or input by interested persons. That process would deny interested persons their participatory rights allowed by DCC 18.113.070(D). **13 Intervenor argues in its response brief that “the hearings officer had no legal basis to reopen the issue,” and “there is no legal basis for imposing Condition 17.” Response Brief 43, 46. Intervenor argues that the issue of water availability was settled by the FMP and intervenor did not propose to change the source of mitigation water as part of the tentative plan for Phase A-1. Intervenor asks that we reverse TP Condition 17. Response Brief 46. Intervenor did not file a cross-petition for review seeking remand or cross-assigning error to the imposition of TP Condition 17. We have authority to affirm, reverse, or remand a land use decision. ORS 197.835(1) (“The Land Use Board of Appeals shall review the land use decision or limited land use decision and prepare a final order affirming, reversing or remanding the land use decision or limited land use decision.”). We do not have authority to reverse an individual condition of approval and affirm the remainder of the decision. We do not have authority to grant intervenor's request for relief. Further, even if we did have such authority, the request for relief is not appropriate in a response brief. *580 Intervenor argues in the response brief that the FMP approval did not rely on mitigation water from COID and Big Falls Ranch. Response Brief 46-50. However, intervenor did not challenge the hearings officer's finding that the FMP approval relied on those water sources by way of cross-petition. Accordingly, we accept the hearings officer's findings on that issue. The hearings officer found that petitioner's evidence calls into question whether intervenor will be able to satisfy the requirements of procuring and providing the quantity and quality of water required to execute the mitigation plan to satisfy the no net loss/degradation standard. The hearings officer concluded that the record does not support a conclusion that a change of source for the mitigation water would satisfy both quantity and quality of mitigation water. The hearings officer determined that a change in the source of mitigation water “may constitute a substantial modification to the FMP approval.” Record 70. We conclude that TP Condition 17 violates the right to a public hearing on whether the no net loss/degradation standard will be satisfied by mitigation from water sources not specified in the mitigation plan. Accordingly, the county may not rely on TP Condition 17 to conclude that, as conditioned, the tentative plan approval will comply with the mitigation plan and thus satisfy the no net loss/degradation standard. On remand, the county must consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water constitutes a substantial change to the FMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and DCC destination resort regulations. **14 This subassignment of error is sustained. 4. Water Permit FMP Condition 10, requires “at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit.” See n 9. The hearings officer concluded that FMP Condition 10 requires “documentation of the state water permit and an accounting of mitigation ‘under the water right,”D’ and that the condition was satisfied by the “complete documentation of the status of the permit and IDP.” Record 73. Prior to expiration of the deadline for using the water under its water rights permit, intervenor applied to extend the permit. OWRD denied the request Exhibit 29 Page 45 of 49 Exhibit 126 Page 118 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.12 for permit extension. OWRD later withdrew the denial and approved the extension. Petitioner filed a protest of the OWRD order. Subsequently, OWRD informed the county that the resort “has done everything needed to be in compliance and good standing with OWRD in *581 regards to [the permit] as well as purchasing mitigation credits and providing instream flow benefits without even using any water yet.” Record 1152. In September 2018, OWRD stated that the permit is in full force and effect, which the hearings officer concluded means that the extension approval remains valid pending resolution of the appeal. Record 501. Petitioner argues that the challenged decision is invalid because the initial OWRD water permit expired and, thus, the tentative plan cannot be approved in the absence of a condition of approval requiring intervenor to demonstrate that it has obtained a valid water permit. Intervenor first responds that petitioner waived the water permit expiration argument because petitioner argued before the hearings officer only that intervenor's water permit extension was subject to petitioner's protest. Petitioner replies, and we agree, that petitioner raised the issue of the validity of the water right permit and that issue is not waived. See DLCD v. Tillamook County, 34 Or LUBA 586, aff'd, 157 Or App 11, 967 P2d 898 (1998) (ORS 197.835(3) and ORS 197.763 require that petitioners at LUBA have raised the issues they wish to raise at LUBA during the local proceeding; however, that restriction does not apply to individual arguments regarding those issues). Intervenor argues that the current record demonstrates that intervenor has a valid water right and petitioner's protest of the extension “does not render the permit void.” Response Brief 54. We agree that the hearings officer did not err in construing FMP Condition 10 to require documentation of the water right and concluding that, based on the record before him, intervenor had established a valid water right. The subassignment of error is denied. B. Wildlife Mitigation Petitioner next argues that the hearings officer erred in approving the tentative plan because intervenor has failed to provide details for wildlife mitigation. The wildlife mitigation plan requires intervenor to restore wildlife habitat on the property. Onsite mitigation is required for each phase of development. For example, wildlife road underpasses are required to be completed at each phase and intervenor must control noxious weeds and preserve native vegetation, logs, and snags. With respect to off- site mitigation, the FMP wildlife mitigation plan requires intervenor to provide 2.3 acres of mitigation for every developed acre or pay a fee in lieu into escrow if mitigation land is not available. Specific mitigation actions must be determined through consultation with wildlife management agencies. Record 84. **15 *582 FMP Condition 38 requires intervenor to “abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of off-site mitigation efforts[,] and “submit an annual report to the county detailing mitigation activities that have occurred over the previous year.” See n 9; Record 221. Before the hearings officer, petitioner argued that the intervenor was required to demonstrate in the tentative plan how intervenor would carry out the FMP wildlife mitigation plan. Intervenor argued that the wildlife mitigation and consultation would occur during a later subphase of Phase A. The hearings officer observed that wildlife mitigation measures are required to be incrementally implemented at each phase of development and that specific on-site implementation measures are dependent on the manner in which construction activities occur on the subject property. With respect to on-site mitigation measures, the hearings officer found no basis to deny the tentative plat or site plan applications. Record 84. However, the hearings officer reasoned that the subphasing of Phase A could potentially lead to noncompliance with the wildlife mitigation plan. For example, if the dwellings that are subject to the Phase A-1 approval are constructed, but further development stops, then development could potentially occur without compliance with Exhibit 29 Page 46 of 49 Exhibit 126 Page 119 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.13 the wildlife mitigation plan. To prevent that result, the hearings officer imposed two conditions requiring ongoing restoration of native vegetation where construction disturbs native vegetation in open space areas that are planned to be retained in a substantially natural condition and requiring intervenor to obtain BLM and ODFW concurrence that no mitigation is required, or provide required mitigation or deposit escrow funds in lieu of mitigation. Record 118.12 Petitioner does not challenge the adequacy of those conditions, but instead simply reiterates her argument before the hearings officer that intervenor was required to provide a detailed mitigation plan prior to tentative *583 plan approval. Petition for Review 56. Intervenor responds that FMP Condition 38 assures compliance with the wildlife mitigation plan by requiring an annual report of mitigation activities. As established in prior appeals, the mitigation plan satisfies the substantive no net loss/degradation standard for destination resort development. We agree with intervenor that the details of the mitigation plan are established by the FMP, and compliance (or noncompliance) with the mitigation measures will be established by annual reporting required by FMP Condition 38. We reject petitioner's argument that the FMP required intervenor to “fill in the details” to obtain approval of a tentative plan during phased development. Petition for Review 56. Petitioner has not demonstrated that the approved subphasing, as conditioned, alters any mitigation requirement under the FMP mitigation plan. Petitioner's argument provides no basis for remand. **16 The subassignment of error is denied. C. Related Conditions of Approval The mitigation plan involves (1) the removal of two wells on the subject property, (2) the removal of two dams that impede the flow of spring water from Deep Canyon Creek to the Deschutes River, and (3) transfer of water from Deep Canyon Creek that Big Falls Ranch uses for irrigation for mitigation. Record 215. Petitioner argues that the hearings officer erred in failing to require as a condition of approval for the tentative plan that, prior to beginning construction, intervenor remove the dams and the wells. Petitioner argues that while the body of the hearings officer's decision states that the first dam will be removed prior to construction under the tentative plan, he failed to include dam removal as a condition of approval. Intervenor responds, and we agree, that removal of the dams and provision of mitigation water is required by the FMP approval and the tentative plan does not alter the mitigation plan. Response Brief 55. The hearings officer was not required to impose additional conditions to the approval of the tentative plan. Petitioner also argues that the hearings officer's discussion of compliance with FMP Condition 38 is inadequate and that the hearings officer inappropriately allowed deposit of funds in lieu of required mitigation. Petitioner's argument appears to be repetitive of other arguments in the petition for review, which are addressed earlier in this decision. If, instead, petitioner intended to present a different and distinct argument, then that argument is not *584 sufficiently developed for our review and, thus, provides no basis for remand. Deschutes Development Co., 5 Or LUBA at 220. This subassignment of error is denied. The second assignment of error is sustained, in part, and denied, in part. The county's decision is remanded. Footnotes Exhibit 29 Page 47 of 49 Exhibit 126 Page 120 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.14 1 DCC 18.04.030 defines overnight lodgings: “‘Overnight lodgings' with respect to destination resorts, means permanent, separately rentable accommodations that are not available for residential use. Overnight lodgings include hotel or motel rooms, cabins and time-share units. Individually-owned units may be considered overnight lodgings if they are available for overnight rental use by the general public for at least 38 weeks per calendar year through a central reservation and check-in service operated by the destination resort or through a real estate property manager, as defined in ORS 696.010. Tent sites, recreational vehicle parks, mobile homes, dormitory rooms and similar accommodations do not qualify as overnight lodging for purposes of this definition.” See also ORS 197.435(5)(b) (providing similar OLU definition). 2 DCC 18.113.050(B)(21) provides that the CMP shall include: “A description of the mechanism to be used to ensure that the destination resort provides an adequate supply of overnight lodging units to maintain compliance with the 150-unit minimum and 2 and one-half to 1 ratio set forth in DCC 18.113.060(D)(2). The mechanism shall meet the requirements of DCC 18.113.060(L).” 3 FMP Condition 21 provides, in part: “Each phase of the development shall be constructed such that the number of overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of individually owned units to overnight lodging unit standards set out in DCC 18.113.060 (A) (1) and 18.113.060 (D) (2). Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in services. As required by ORS 197.445(4)(b)(B), at least 50 units of overnight lodging must be constructed in the first phase of development, prior to the closure of sale of individual lots or units.” Record 219. FMP Condition 33 provides: “The Resort shall, in the first phase, provide for the following: “A. At least 150 separate rentable units for visitor-oriented lodging. “B. Visitor-oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. “C. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 10.113.060 (A) (1) and (2) shall be at least $2,000,000 (in 1984 dollars). “D. At least $2,000,000 (in 1984 dollars) shall be spent on developed residential facilities. “E. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots.” Record 220. 4 DCC 18.113.080 provides: “Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP. An insubstantial change may be approved by the Planning Director. Substantial change to an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected.” 5 TP Condition 18 provides: “18. Construction. Prior to closing on the sale, lease or rental of any residential lots or dwellings: “a. Obtain land use approvals for development of the remaining elements of Phase ‘A,’ including the remaining OLUs, restaurant, meeting rooms and recreational facilities. “b. Construct at least 50 OLUs “c. Construct or provide financial assurance for construction of the remaining 100 OLUs “d. Construct or provide financial assurance for construction of the restaurant, meeting rooms and recreational facilities for Phase ‘A’ and as noted in FMP Condition 33.” Record 117 (boldface omitted). 6 DCC 18.113.025 provides: “Expansion proposals of existing developments approved as destination resorts shall meet the following criteria: “A. Meet all criteria of DCC18.113 without consideration of any existing development; or Exhibit 29 Page 48 of 49 Exhibit 126 Page 121 of 204 ANNUNZIATA GOULD, Petitioner, v. DESCHUTES..., 79 Or LUBA 561 (2019) © 2021 Thomson Reuters. No claim to original U.S. Government Works.15 “B. Meet all criteria of DCC18.113 for the entire development (including the existing approved destination resort development and the proposed expansion area), except that as to the area covered by the existing destination resort, compliance with setbacks and lot sizes shall not be required. “If the applicant chooses to support its proposal with any part of the existing development, applicant shall demonstrate that the proposed expansion will be situated and managed in a manner that will be integral to the remainder of the resort.” 7 DCC 18.113.040(C) provides: “Site Plan Review. Each element or development phase of the destination resort must receive additional approval through the required site plan review (DCC 18.124) or subdivision process (DCC Title 17). In addition to findings satisfying the site plan or subdivision criteria, findings shall be made that the specific development proposal complies with the standards of DCC 18.113 and the FMP.” 8 Ground water will be used for domestic and commercial uses, golf course and landscape irrigation, reservoir and pond maintenance, and fire protection. As we understand it, the current water right holder is an entity called Pinnacle, which we understand is a separate entity from intervenor, however for the sake of simplicity in this decision we refer to intervenor as the water right holder. 9 The FMP included the following conditions of approval: “10. Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase.” Record 217. “38. The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of offsite mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek. “39. The applicant shall provide funding to complete a conservation project by the Three Sisters Irrigation District to restore 106 acre-feet of instream water to mitigate potential increase in stream temperatures in Whychus Creek. The applicant shall provide a copy of an agreement with the irrigation district detailing [the] funding agreement prior to the completion of Phase A.” Record 221. 10 The IDP approves the following in-stream mitigation water uses: 2013-2019 3.6 AF; 2020-2024 315.8 AF; 2025-2029 212 AF; 2030-2034 515.5 AF. Record 1154. 11 “Consumptive use” means the amount of ground water appropriation that will not return to surface water flows. Record 67; see also OAR 690-505-0605(2) (OWRD definitions for Deschutes Basin Ground Water Mitigation Rules). 12 The TP includes the following conditions of approval: “19. FMP Condition 34: As an ongoing condition of approval, where construction disturbs native vegetation in open space areas that are to be retained in substantially natural condition, the applicant shall restore the native vegetation. This requirement shall not apply to land that is improved for recreational uses, such as golf courses, hiking or nature trails or equestrian or bicycle paths. “20. FMP Condition 38. Prior to issuance of building permits for any Phase ‘ ‘A’ development: obtain BLM/ODFW concurrence that no mitigation is required; provide such mitigation or establish the escrow and deposit funds equal to the area of such mitigation.” Record 118 (boldface omitted). 79 Or LUBA 561 (Or Luba), 2019 WL 11505037 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works. Exhibit 29 Page 49 of 49 Exhibit 126 Page 122 of 204 11/16/21, 2:23 PM Climate at a Glance | National Centers for Environmental Information (NCEI) https://www.ncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/1895-2021 1/6 November US Release: Wed, 8 Dec 2021, 11:00 AM ESTHome > Climate Monitoring > Climate at a Glance Home Climate Information Data Access Customer Support Contact About Search OptionsOptions Display Base Period Start: End: Display Trend per Decade per Century Start: End: Smoothed Time Series Binomial Filter LOESS Plot Global National Regional Statewide Divisional County City Mapping Time Series Rankings Haywood Plots Data Information Background County Time Series Choose from the options below and click "Plot" to create a time series graph. Please note, Degree Days and Palmer Indices are not available for Counties. Parameter:Precipitation Time Scale:Annual Month: Start Year:1895 End Year:2021 State:Oregon County:Deschutes County Download: DATES VALUE RANK 202001 - 202012 19.23"26 Climate at a Glance 1901 2000 1895 2021 January Deschutes County, Oregon Precipitation January-December 1895 20211905 1915 1925 1935 1945 1955 1965 1975 1985 1995 2005 2015 10.00 in 40.00 in 15.00 in 20.00 in 25.00 in 30.00 in 35.00 in 254.00 mm 1,016.00 mm 381.00 mm 508.00 mm 635.00 mm 762.00 mm 889.00 mm Powered by ZingChart Exhibit 30 Page 1 of 6 Exhibit 126 Page 123 of 204 11/16/21, 2:23 PM Climate at a Glance | National Centers for Environmental Information (NCEI) https://www.ncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/1895-2021 2/6 DATES VALUE RANK 201901 - 201912 22.61"64 201801 - 201812 14.85"2 201701 - 201712 21.55"51 201601 - 201612 22.45"62 201501 - 201512 20.19"38 201401 - 201412 29.34"113 201301 - 201312 17.23"8 201201 - 201212 30.49"117 201101 - 201112 20.10"36 201001 - 201012 25.77"91 200901 - 200912 19.87"34 200801 - 200812 19.60"32 200701 - 200712 20.88"42 200601 - 200612 27.00"101 200501 - 200512 24.88"84 200401 - 200412 22.41"60 200301 - 200312 21.41"47 200201 - 200212 15.27"3 200101 - 200112 20.14"37 200001 - 200012 18.88"19 199901 - 199912 20.72"40 199801 - 199812 30.93"119 199701 - 199712 23.40"73 199601 - 199612 38.03"126 199501 - 199512 30.92"118 199401 - 199412 17.61"11 199301 - 199312 25.27"89 199201 - 199212 21.81"53 199101 - 199112 23.42"74 199001 - 199012 21.16"44 Exhibit 30 Page 2 of 6 Exhibit 126 Page 124 of 204 11/16/21, 2:23 PM Climate at a Glance | National Centers for Environmental Information (NCEI) https://www.ncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/1895-2021 3/6 DATES VALUE RANK 198901 - 198912 20.71"39 198801 - 198812 22.70"65 198701 - 198712 21.52"50 198601 - 198612 23.60"76 198501 - 198512 16.79"7 198401 - 198412 28.57"106 198301 - 198312 33.35"124 198201 - 198212 30.27"116 198101 - 198112 29.34"113 198001 - 198012 25.14"86 197901 - 197912 23.34"71 197801 - 197812 22.02"56 197701 - 197712 23.60"76 197601 - 197612 16.63"5 197501 - 197512 26.03"95 197401 - 197412 21.46"48 197301 - 197312 24.53"82 197201 - 197212 22.76"67 197101 - 197112 26.17"97 197001 - 197012 26.49"98 196901 - 196912 24.15"79 196801 - 196812 22.12"57 196701 - 196712 19.53"29 196601 - 196612 22.41"60 196501 - 196512 19.51"28 196401 - 196412 29.23"111 196301 - 196312 24.05"78 196201 - 196212 23.08"68 196101 - 196112 27.11"103 196001 - 196012 26.83"100 Exhibit 30 Page 3 of 6 Exhibit 126 Page 125 of 204 11/16/21, 2:23 PM Climate at a Glance | National Centers for Environmental Information (NCEI) https://www.ncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/1895-2021 4/6 DATES VALUE RANK 195901 - 195912 15.59"4 195801 - 195812 26.04"96 195701 - 195712 26.80"99 195601 - 195612 29.15"109 195501 - 195512 24.58"83 195401 - 195412 18.83"18 195301 - 195312 32.75"123 195201 - 195212 18.92"20 195101 - 195112 25.78"92 195001 - 195012 32.01"122 194901 - 194912 14.63"1 194801 - 194812 31.91"121 194701 - 194712 21.30"46 194601 - 194612 21.48"49 194501 - 194512 27.03"102 194401 - 194412 18.18"17 194301 - 194312 21.20"45 194201 - 194212 29.18"110 194101 - 194112 28.57"106 194001 - 194012 25.95"94 193901 - 193912 17.56"10 193801 - 193812 22.71"66 193701 - 193712 29.88"114 193601 - 193612 21.87"54 193501 - 193512 17.75"12 193401 - 193412 23.13"69 193301 - 193312 19.15"25 193201 - 193212 21.03"43 193101 - 193112 18.12"16 193001 - 193012 16.75"6 Exhibit 30 Page 4 of 6 Exhibit 126 Page 126 of 204 11/16/21, 2:23 PM Climate at a Glance | National Centers for Environmental Information (NCEI) https://www.ncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/1895-2021 5/6 DATES VALUE RANK 192901 - 192912 17.75"12 192801 - 192812 17.99"14 192701 - 192712 29.13"108 192601 - 192612 25.27"89 192501 - 192512 21.99"55 192401 - 192412 18.00"15 192301 - 192312 25.05"85 192201 - 192212 24.22"80 192101 - 192112 23.39"72 192001 - 192012 19.75"33 191901 - 191912 23.16"70 191801 - 191812 18.98"21 191701 - 191712 19.13"24 191601 - 191612 24.27"81 191501 - 191512 21.68"52 191401 - 191412 19.59"31 191301 - 191312 19.45"27 191201 - 191212 28.55"104 191101 - 191112 17.36"9 191001 - 191012 25.19"87 190901 - 190912 30.15"115 190801 - 190812 20.81"41 190701 - 190712 36.70"125 190601 - 190612 22.23"58 190501 - 190512 20.08"35 190401 - 190412 28.60"107 190301 - 190312 23.68"77 190201 - 190212 25.54"90 190101 - 190112 19.55"30 190001 - 190012 19.06"23 Exhibit 30 Page 5 of 6 Exhibit 126 Page 127 of 204 11/16/21, 2:23 PM Climate at a Glance | National Centers for Environmental Information (NCEI) https://www.ncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/1895-2021 6/6 DATES VALUE RANK 189901 - 189912 22.24"59 189801 - 189812 19.00"22 189701 - 189712 25.83"93 189601 - 189612 31.09"120 189501 - 189512 22.52"63 Citing This Page NOAA National Centers for Environmental information, Climate at a Glance: County Time Series, published November 2021, retrieved on November 16, 2021 from https://www.ncdc.noaa.gov/cag/ NCEI About Site Map Privacy FOIA Information Quality Disclaimer Department of Commerce NOAA NESDIS Department of Commerce > NOAA > NESDIS > NCEI > NCDC Exhibit 30 Page 6 of 6 Exhibit 126 Page 128 of 204 11/19/21, 11:17 AM Pamplin Media Group - Farmers explore changing frog rules https://pamplinmedia.com/msp/129-news/518186-413924-farmers-explore-changing-frog-rules?tmpl=component&print=1 1/3 PAT KRUIS/MADRAS PIONEER - Madras cattle business owner JoHanna Symons has organized a regional meeting in Redmond Aug. 17, which will feature agricultural rights legal experts to discuss the potential of amending the HCP agreement in hopes of providing more water for irrigation. Farmers explore changing frog rules Pat Kruis August 11 2021 Aug. 17 meeting on Habitat Conservation Plan includes high-profile lawyers (https://pamplinmedia.com/images/artimg/00003711450915-0815.jpg) Tuesday, Aug. 17, farmers from around Central Oregon plan to meet with some legal big hitters to see if they can change the Habitat Conservation Plan in their favor. The drought devastated Deschutes Basin farmers this year. Reserving water for endangered species only made matters worse. "Everybody needs a paycheck to live in this world," says organizer JoHanna Symons. "And all these people aren't going to have a paycheck after this year." In January, irrigation districts in the Deschutes Basin signed the HCP, which spelled out who could use the basin's water and when. The plan called for reserving 36,000-acre feet of water to preserve habitat for the spotted frog and bull trout. This growing season has been the worst water year in the history of the North Unit Irrigation District, which serves Jefferson County. The water spared for the frog could have given NUID farmers 80% more water than they had. Symons and other irrigators think the document should be flexible for extreme circumstances like historic droughts. Through her nonprofit, Perfect Balance, she's bringing in experienced legal minds to advise Central Oregon irrigators. A D V E R T I S I N G | Continue reading below (https://reach.adspmg.com/cl.php? bannerid=13063&zoneid=739&sig=537fd24032a9bb2c41db439627ebb7bab46730be927c0e13ac0a0b580b3ba957&oadest=https%3A%2F%2Fcli.re%2FJnynzM) — Karen Budd-Falen worked on the Endangered Species Act for President Donald Trump. — Gary Baise is a litigation expert in agricultural and environmental issues. — Aubrey Bettencourt has served as deputy assistant secretary for water and science at the Department of Interior. Originally, frustrated farmers talked about getting rid of the HCP altogether. "Emotions ran a little high," says Symons. On closer examination, Symons says amending is a better option. "There is a section in the HCP that talks about unforeseen circumstances," she says. "Getting rid of the HCP would be a bad idea." A D V E R T I S I N G | Continue reading below FONT & AUDIO -A + SHARE THIS Facebook Twitter (/#twitter) Google+ (/#google_plus) Email (/#email) LinkedIn (/#linkedin) MORE STORIES Exhibit 31 Page 1 of 2 Exhibit 126 Page 129 of 204 11/19/21, 11:17 AM Pamplin Media Group - Farmers explore changing frog rules https://pamplinmedia.com/msp/129-news/518186-413924-farmers-explore-changing-frog-rules?tmpl=component&print=1 2/3 (https://reach.adspmg.com/cl.php? bannerid=12274&zoneid=739&sig=b55d8681d4718310a7663f090f90efb4c24ac1c57abade934daa9c4c43bf1dcd&oadest=https%3A%2F%2Fcli.re%2FPvJy8j) Symons says the HCP provides irrigation districts much needed protection against lawsuits over endangered species. North Unit managers are looking into long-term fixes, like piping lateral ditches and installing a $400 million dollar pumping station at Lake Billy Chinook. "We need a short-term solution so we can all be around for the long-term solution," says Symons. "But the short-term solution is amending the HCP." Irrigators like Symons also want to grab attention from legislators spending money on the nation's infrastructure. "We need to start spending more grant money and government money on infrastructure to keep the food supply going," says Symons. The meeting will be at the Deschutes County Fairgrounds in the South Sisters Building. Doors open at 6:30 p.m. The meeting begins at 7 p.m. (http://SavingLocalNews.com) You count on us to stay informed and we depend on you to fund our efforts. Quality local journalism takes time and money. Please support us to protect the future of community journalism. ALSO ON PAMPLIN MEDIA 19 hours ago 2 comments Oregon OKs \$66M for transfer of 82nd Avenue to Portland control, Local … OregonOregon OKs OKs $66M $66M for for transfertransfer of of … … •2 days ago 1 comment Readers’ letters: Homeless youth story shines a light, Local … Readers'Readers' letters: letters: HomelessHomeless youth youth story story •2 hours ago 1 Portland traffic 1/3 in 2021, L Portland local Portland traPortland tra fatalities upfatalities up • Exhibit 31 Page 2 of 2 Exhibit 126 Page 130 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/1/10 NOV. 19, 2021 contribute now In The News Amanda Peacher / OPB THANKS TO OUR SPONSOR:Become a Sponsor SCIENCE ENVIRONMENT Frogs, Fish And Farmers Feel Out Compromise On Deschutes River By Amanda Peacher (OPB) Dec. 13, 2017 4:36 p.m. With Central Oregon’s booming population growth, water is an increasingly important resource. And on the Upper Deschutes River, scarce water has become a big problem for wildlife and river habitat. On a crisp fall day, a team of volunteers waded upstream in the Deschutes River in pursuit of sh. Rittenhouse acquitted Snow & ice removal Mount Ashland forest Zero emissions trucks 0:000:00 / 4:48/ 4:48 Think Out Loud STREAMING NOW Exhibit 32 Page 1 of 9 Exhibit 126 Page 131 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/2/10 Instead of shing rods, they carried an electroshock device, nets and buckets. “Sweet, rst sh,” said technician Josh Richards, after sending a shock into the rippling water. A trout the size of his pinky nger oated to the surface, belly up. Volunteer Shaun Pigott netted the shimmery sh and gingerly dropped it into a water- lled bucket. That sh, along with hundreds of others, were moved bucket brigade style from a side channel into the main stem Deschutes River. It might sound counter-intuitive, but shocking and moving these sh is actually doing them good. Every fall, side channel habitat turns into a tiny trickle of water. That’s when managers start holding the river back behind Wickiup Dam. Pigott, also the president of the local Trout Unlimited chapter, said that the holding back of water strands sh in shallow water that freezes over winter. “If the sh aren’t rescued, in all likelihood they’d die," Pigott said. “These sh are e ectively stranded when the river goes down." The solution for the stranded wildlife on the Upper Deschutes sounds simple: The upper river needs more water and more stable ows year-round. But the route there involves dozens of stakeholders, the government and eventually bartering a massive water trade between the weakest and most powerful water interests in the region — all at a cost of hundreds of millions of dollars. Think Out Loud STREAMING NOW Exhibit 32 Page 2 of 9 Exhibit 126 Page 132 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/3/10 Farmer Phil Fine relies on water out of Wickiup Reservoir to irrigate his elds every summer. Amanda Peacher / OPB Farmers Count On Reserves Fifty miles south of the sh rescue, farmer Phil Fine maneuvered his tall red tractor down one of his vast elds planted with carrots for next year, row after row of tiny, inch- long leaves poking out of the soil. Those carrots, of course, need the same water the sh need. “That’s the only guaranteed water we have,” said Fine. Fine is part of the North Unit Irrigation District, one of several water districts that take water out of a di erent part of the Deschutes River. North Unit’s water rights are tied to Wickiup Reservoir on the Upper Deschutes. It’s the management of the Wickiup that dictates how much water is in the Upper Deschutes River. “The river shouldn’t be treated like an irrigation ditch,” said Jim McCarthy, communications manager for the environmental group WaterWatch. “It should be managed like a river. It shouldn’t be managed for a single interest." Unlike some rivers, the Deschutes historically had pretty much the same amount of water in it year-round. “The Deschutes River was once called the peculiar river because it has very stable ows,” said Gail Snyder, co-founder of a conservation group Coalition for the Deschutes. But now it is a heavily managed basin built out with dams and canals. That means the upper water supply dries up every fall, when dam managers start holding back water toThink Out Loud STREAMING NOW Exhibit 32 Page 3 of 9 Exhibit 126 Page 133 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/4/10 use during irrigation season. In the past, the river became a series of puddles and mud ats at some points. “The river was truly a sad little trickle,” Snyder said. In the summer, the problem is the opposite. When dam managers open up the Wickiup Reservoir to let water out for farmers, there’s too much ow in the Upper Deschutes. Winter ows in the Upper Deschutes are far lower than they were historically. That's because dam managers upstream start holding water back for summer irrigation. Ryan Haas / OPB Think Out Loud STREAMING NOW Exhibit 32 Page 4 of 9 Exhibit 126 Page 134 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/5/10 THANKS TO OUR SPONSOR:Become a Sponsor Frog Lawsuit Forces Conservation Big variations in water ow can be harmful for wildlife — especially for the Oregon spotted frog, which was put on the federal Endangered Species List in 2014. When the river loses water, wetland frog habitat along the Upper Deschutes dries up. When the river has too much water, frog eggs ush downstream and die. Biologists see the frog as a bellwether species that signals how unhealthy the Upper Deschutes river is more broadly. “It’s not a great picture for the frog right now,” said Bridget Moran, who manages the U.S. Fish and Wildlife Service Bend o ce. “The listing of the frog brought to the surface a need for the broader restoration of the river.” Related: Agreement Reached To Help Oregon's Spotted Frog After the spotted frog was put on the Endangered Species List, WaterWatch and the Center for Biological Diversity ratcheted up the pressure with a lawsuit that forces more water distribution for the Upper Deschutes. That's meant those who need water from the river for irrigation have no choice — come to the table and gure out how to work together or possibly say goodbye to the water supply. “Everybody really wants to make sure the other needs are met,” said Moran. “Nobody wants to chase agriculture out of here. Nobody wants to see the shery impacted.” There actually is enough water in the entirety of the Deschutes Basin to meet all these needs — from frogs to farming. But the allocation of that water and and how to bring the upper river back to a healthy state is a conversation that’s been going on for years. Stakeholders like WaterWatch, the Deschutes River Conservancy, the USFWS and irrigation districts have been meeting for nearly a decade trying to come up with aThink Out Loud STREAMING NOW Exhibit 32 Page 5 of 9 Exhibit 126 Page 135 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/6/10 g g y y g p workable compromise. But how to release a stable supply of water without hurting farmers has been a key sticking point. Eight years into talks, WaterWatch decided the process was dragging out without any solid commitments from irrigation districts, and that’s when the group decided to sue. “It is stunning to think that it has taken this long for a river this beautiful to be taken care of in the way it needs to be taken care of,” McCarthy said, pointing out that the Upper Deschutes is upstream of Bend, one of the most popular and important water recreation sites in Oregon. Irrigators agreed to increase water releases to 100 cubic feet per second in a temporary settlement last year. That's a notable increase from the 25 cubic feet per second in years past that left the river a mere trickle. Still, it may not be enough. Farmers Must Solve The Problem Think Out Loud STREAMING NOW Exhibit 32 Page 6 of 9 Exhibit 126 Page 136 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/7/10 A federal biological opinion for the spotted frog says the Upper Deschutes needs about 600 cubic feet per second — six times the amount of water currently being released in winter. If water managers were to suddenly start releasing that amount, North Unit irrigators wouldn’t be able to plant crops next spring. “That puts out us out of business,” said Fine. There’s not much opportunity for conservation from North Unit. Fine said his district has barely enough water for irrigators, and it’s already maxed out options for saving water both on individual farms and within canals and ditches. “We’re a highly e cient district, one of the best in the country, and the reason is because we have to be,” said Fine. While North Unit irrigators don’t have water to spare, another water district does. The Central Oregon Irrigation District is the most senior water rights holder in the region — it’s a 100-year-old organization with 450 miles of canals and ditches that stretch from Bend to Smith Rock. In 1907, builders used the most convenient local material around — porous lava rock found all over central Oregon — to construct canals. Those old canals leak about 45 percent of the water they transport. Because of COID’s senior water rights status, it hasn’t had reason to upgrade the system or force water conservation measures. A farmer in COID pays half as much for the same amount of water as a North Unit farmer. And COID patrons are also allowed to use twice as much water per acre as North Unit. And unlike North Unit, there’s no imminent threat of losing water in an endangered species battle. Most of their water comes from areas of the river that are outside of spotted frog habitat. The pressure for COID to be part of the solution comes from a conservation community tired of seeing dead sh scattered on mud ats when the Upper Deschutes is de-watered in winter. 0:000:00 / 0:00/ 0:00 Think Out Loud STREAMING NOW Exhibit 32 Page 7 of 9 Exhibit 126 Page 137 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/8/10 “It is a reality. Central Oregon Irrigation District could walk away at any time,” said District Manager Craig Horrell. “(But) we’re not going to do that. We are here doing this out of social responsibility more than anything.” Horrell said the solution to canal seepage is to to build pipes in place of those canals. Related: Deschutes County Approves Land ll Sale To OSU-Cascades For $1 That’s not a popular idea with neighbors who like living next to a waterway. The idea has drawn ire from neighborhood groups who’ve lobbied to get the canals listed on the national registry of historic places — a designation that can make it di cult, if not impossible, to replace a canal with a pipe. But piping the canals provides huge opportunities for the district to conserve water. The idea is that Central Oregon Irrigation District could then “give” some of that water they conserve to North Unit. That way, North Unit irrigators could put more water upstream back into the river for sh and frogs. It’s a modern and expensive horse trade of water that could take decades. Piping COID’s two main canals would cost between $500 and $600 million, according to the district's gures. That could mean higher costs for COID water users, so Horrell will have to convince his water users that piping and water conservation are the right path for the long term. Though COID could resist and ght these changes, it looks like the big compromise could be on its way. Earlier this year, Sen. Je Merkley, D-Oregon, helped secure $150 million of congressional funding for several Deschutes basin piping projects. Central Oregon Irrigation District plans to start constructing its rst canal next year. Fine, the Madras carrot farmer, believes that Horrell and other COID leaders want to come to a solution to return water to the Upper Deschutes. But he’s worried about future lawsuits, or that this massive collaboration could fall apart at any moment. He and other North Unit farmers are, in some sense, at the mercy of their senior water rights holder neighbors. “I would love to x the river today. But I can’t do that and continue to farm and support my family,” said Fine.Think Out Loud STREAMING NOW Exhibit 32 Page 8 of 9 Exhibit 126 Page 138 of 204 11/19/21, 12:42 PM Frogs, Fish And Farmers Feel Out Compromise On Deschutes River - OPB https://www.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/9/10 THANKS TO OUR SPONSOR:Become a Sponsor Ultimately, he said, they're working with an antiquated water system that needs change. “Our government designed the system. We inherited it," Fine said. "It’s just going to take a lot of time and money to x." Tags: Science & Environment, Environment, Fish &Amp; Wildlife, Land, News, Science, Water, World THANKS TO OUR SPONSOR:Become a Sponsor OPB's First Look newsletter Sign up to get important news and culture from around the Northwest, delivered to your inbox six days a week. EMAIL Sign Up OPB’s critical reporting is made possible by the powerThink Out Loud STREAMING NOW Exhibit 32 Page 9 of 9 Exhibit 126 Page 139 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/1/11 M I D D L E D E S C H U T E S , P H O T O B Y J O N T A P P E R You are here: Home /Homepage: Features / The Deschutes Basin’s Last Great Problem The competing visions for the management of the upper Deschutes River, which has drawn people and sustained life for millennia, are as old as the West itself. On the last Saturday in January, a bright, sunny affair when the promise of spring felt near, the Fly Fisher’s Place in Sisters was full of impatient anglers debating the merits of some of the shop’s 1,400 flies. But the light vibe turned serious when I asked Jeff Perin, the shop’s owner, about his connection to the Upper Deschutes River. Seated at a table in the back room of his meandering store, Perin spoke about the river wistfully, as though retelling the story of a once great athlete who had fallen upon hard times. “I got hooked on the river the very first day we moved here, back in June 1980,” he said, his alert blue eyes shadowed by a stiff-billed fishing cap. Perin, then in sixth grade, didn’t catch a single fish that day. In fact, he fell into the river. But his older cousin caught a slew of rainbow trout, enough to make a big impression and cement what would become NEWSLETTER SIGN UP HERE YOUR EMAIL ADDRESS Weekly Events & News (Up-to-Date Happenings Around Central Oregon) The Explorer (Adventuring around Central Oregon) The Neighbor (Home & Design) The Menu (Central Oregon Food & Drink) The Spotlight (Central Oregon Culture & Heritage) SUBMIT SEARCH THIS WEBSITE SPONSOR SEARCH THIS WEBSITE THE DESCHUTES BASIN’S LAST GREAT PROBLEM Published April 12, 2016 Written by Dave Seminara Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 1 of 11 Exhibit 126 Page 140 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/2/11 a lifelong passion for the river. Perin can recall days of remarkably good fly-fishing on the Upper Deschutes as recently as three years ago, just before a devastating fish kill in October 2013 that galvanized attention to a problematic twenty-five-mile stretch of the river between the Wickiup Reservoir and Sunriver, where low streamflows have had a harmful impact on fish and wildlife. “The river is oversubscribed for irrigation purposes,” he said. “The Upper Deschutes was once one of the best places in the country for trout fishing, but now it’s not even in the top 100.” Most in Central Oregon agree that this stretch of the Upper Deschutes is sick, but there is no consensus on how to treat it. The conversation can be, in the words of one conservationist, a “clash of cultures” as fisherman like Perin, boaters, conservationists, state and federal agencies, municipalities, farmers and ranchers grapple for solutions and defend their turf. The debate will play out in meeting rooms and courtrooms, thanks to a lawsuit related to the Oregon spotted frog. It will continue in government offices, where officials will rule on a regulatory process initiated by eight local irrigation districts and the city of Prineville. The competing visions for this river, which has drawn people to the region and sustained life for thousands of years, are as old as the West itself. “There’s a reason why they say ‘whiskey is for drinking and water is for fighting,’ ” said Shon Rae, communications manager for the Central Oregon Irrigation District (COID), a quasi-municipal group that has 3,623 members, mostly small farmers and ranchers. ORIGINS OF THE LAST GREAT PROBLEM IN THE DESCHUTES BASIN The Deschutes River runs north, covering some 250 miles, and has numerous tributaries and three sections:the Upper Deschutes, which begins at Little Lava Lake and runs down to Bend, the Middle Deschutes, which extends to Lake Billy Chinook, and the Lower Deschutes, which flows up to the Columbia River. The Deschutes is a spring-fed river that has been called the “Peculiar River” because of its remarkably consistent streamflow. Early inhabitants of the Deschutes basin region included the Warm Springs, Wascoes, Paiutes, Klamaths, Modocs, Nez Pearce and Walla Walla tribes. Europeans began exploring Central Oregon as early as 1813. That year a pair of fur traders carved their initials and the date on a large stone on the banks of the Deschutes River, south of present day Bend. In 1877, John Todd purchased a ranching claim along the Deschutes River he named the Farewell Bend Ranch. When travelers left the ranch and headed north, knowing it was the last bend in the river along their route, they would say, “Farewell Bend.” The nickname stuck but the post office shortened the town’s official name to Bend, since another community along the Snake River had already laid claim to the name Farewell Bend. One of the first government reports on the water resources of Central Oregon, written by Israel Cook Russell, an early geologist and geographer, was published in 1905 and marveled about the river’s “conspicuously clear” waters. It is a swift flowing stream … a delight to the beholder on account of its beautiful colors, refreshing coolness, and the frequently picturesque … impressive scenery of its canyon walls, as well as a blessing to the arid region to which it brings its flood of water for irrigation and other purposes. It is also an attraction to the angler and its waters are abundantly stocked with trout. In the first decades of the 20th century, Bend evolved into a prosperous mill town along the banks of the river. The Shevlin-Hixon and Brooks-Scanlon companies opened mills on opposite sides of the river in 1916. They built a dam between them for log ponds, and the river was an indispensable conduit for transporting timber to market. SPONSORED CONTENT The Rogue Valley AVA is an often overlooked wine region in the US. Despite growing grapes that consistently create world renowned wines, the region still has an undiscovered feel to it. MEDFORD: THE BASECAMP OF ROGUE VALLEY WINE COUNTRY BEND PSYCHOLOGISTS HELP US UNDERSTAND ANXIETY IN HONOR OF OCD WEEK Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 2 of 11 Exhibit 126 Page 141 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/3/11 In 1894, Congress passed the Carey Act, which allowed private irrigation companies to erect irrigation systems and sell water to landowners in the arid Western states. A handful of irrigation districts were established in Central Oregon starting in 1904, and the state passed an agriculture-friendly water rights code in 1909 which encouraged farmers and ranchers to settle in the region, offering free land in exchange for the cost of irrigation. By 1924, 28,500 acres of land in Central Oregon were irrigated, supporting a population of about 10,000 people in Deschutes County. The founding principal of the state water code was and still is—first in time, first in right—meaning the irrigation companies with the most seniority have first dibs on water rights. The eight irrigation districts in Central Oregon have “priority dates” ranging from 1899 to 1916, which dictate when and if they get their water. A series of dams were built along the river starting in 1910, along with six reservoirs, including Crane Prairie (1940) and Wickiup (1949) on the Upper Deschutes. The Bureau of Reclamation (BOR), a government agency tasked with managing and protecting water resources, assigned irrigation districts to manage these reservoirs, which are used to store water during the winter and release it to district members during the irrigation season, April 15 through October 15. Conservationists argue that BOR and the Oregon Water Resources Department (OWRD) have allowed the irrigation districts to oversubscribe the river, hoarding water in the reservoirs in the winter and flooding the river during the summer irrigation season. The upper stretch of the Peculiar River that historically flowed at a remarkably consistent at 700 to 800 cubic feet per second (cfs) year-round, is slowed to a trickle, sometimes down to 20 cfs in the winter between Wickiup and Sunriver, and can roar to the tune of 2,000 cfs in the summer. The Oregon Department of Fish and Wildlife (ODFW) has set the instream water right at 300 cfs, but that is essentially just a target—one that hasn’t been met in recent winters largely due to demand from the irrigation districts. (Climate change and a growing population in the region also play an important role.) “It’s clear that fish and wildlife would benefit from a more natural river flow,” says Ryan Houston, executive director of the Upper Deschutes Watershed Council, a Bend-based nonprofit that takes a collaborative approach to trying to restore the Upper Deschutes. “But how do we get there? The devil is in the details.” Everyone experiences some everyday worries and fears, but when those thoughts overtake our minds or lead to a panic attack, it can be a sign of something bigger. Bend -La Pine -Madras -Maupin - Prineville -Redmond -Sisters -Sunriver HERITAGE The old ski hills of Central Oregon may have been lost to time, but a local historian is digging their stories back up. It was a dark and stormy night…” goes the often- mocked cliché used by wannabe mystery writers. Dozens of films have been made in Central Oregon over the years, from Westerns to comedies THE LOST SKI AREAS OF CENTRAL OREGON WHERE TO FIND THE REAL HAUNTED HOUSES OF BEND BEND ON THE BIG SCREEN — OLD MOVIES FILMED IN CENTRAL OREGON Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 3 of 11 Exhibit 126 Page 142 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/4/11 THE FISHERMEN Yancy Lind’s office is perched on a bluff above the memorable bend in the river where the Upper Deschutes morphs into the Middle Deschutes. As a financial manager who needs to follow the markets, Lind monitors four computer screens at a desk with a panoramic view of the river. But he’s also a board member of a fly-fishing group, Central Oregon Flyfishers—he’s a guy who owns no less than eighteen rods.His real passion lies beyond the screens. “I’m obsessed with the river,” he said. Lind is intense, deadly serious when it comes to the Deschutes, and looked annoyed when I told him I was writing a story about the river. “The river is many rivers,” he said, sweeping a hand toward the window and the view. “It has many different areas of ecological concern, and they are dramatically different. You cannot possibly write an article of any depth about the whole river.” I conceded the point and asked him to grade the particularly problematic stretch of the Deschutes between Wickiup and Sunriver. “If you’re going to quote me, I better be diplomatic,” he said, with a wry smile. “It’s a g**damn, f**king disaster. A complete ecological kill zone every winter. On a scale of one to ten, it’s a minus one.” Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 4 of 11 Exhibit 126 Page 143 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/5/11 A S T R I K I N G S T R E T C H O F T H E U P P E R D E S C H U T E S I N 2 0 1 5 , B E L O W T H E W I C K I U P R E S E R V O I R . P H O T O B Y R I C H A R D S C O T T N E L S O N Lind is equally certain of what needs to change: the laws which grant, in his opinion, far too much latitude to the irrigation districts to manage the river. “The irrigation districts own 90 percent of the water,” he said.“And the law says that we cannot release any water instream solely for the benefit of the fish. People in Bend think we can just sit around a table and sing Kumbaya to fix this problem, but that hasn’t worked.” When I asked about his obsession with the river, he declined to answer, insisting that my story should be about the river, not him. But when I asked again, he relented. “People come to Bend for this ambiguous thing, quality of life, right?” he asked. “We live stressful lives. You see I’m monitoring four computer screens, and that doesn’t count my iPad and my phone. Some people do yoga, some go to church. But for me, and I think a lot of people, I go to the river. That’s what grounds me. And it’s my calling to try to make it better than it was when I moved here.” Jeff Perin is equally passionate, but doesn’t shy away from his personal connection to the Deschutes. He holds one of just seven permits to guide anglers on the Upper Deschutes, and he was there before, during and after the October 2013 fish kill near Lava Island Falls that killed more than 3,000 fish. “The year after that big kill, all those fish we were catching (and releasing) were gone,” he said. “If the river had been flowing at 250 cfs, it never would have happened, but at 20 cfs, those fish never had a chance.” THE ENVIRONMENTALISTS Paul Dewey came to Oregon in 1977, armed with a law degree from the University of Virginia, after reading a “go west young man story” in a magazine that described the state as a kind of progressive “Ecotopia.” “I guess I was hoping it would be like a continuation of the ’60’s here,” he said. After a stint working as a caretaker at a horse farm in Sisters, he became an attorney specializing in land use, environmental and Native American law. He founded Central Oregon Landwatch, a nonprofit dedicated to protecting the environment, fish and wildlife in 1986, and has fought and won many legal battles over the years. When asked about the Upper Deschutes problem, he exhibits the energy of an idealistic college student and the passion of an evangelist. On the afternoon I met him at Stackhouse Coffee in Bend, he was brandishing an enormous binder with materials from the Upper Deschutes Basin Study Group, a well funded, collaborative effort involving just Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 5 of 11 Exhibit 126 Page 144 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/6/11 about every water rights stakeholder in the region. I asked him if this group is likely to produce a solution to the streamflow problem. “We’ve been studying the problem for thirty years,” he said. “Studying it is great, but we need litigation to affect change.” The litigation he was referring to is a pair of lawsuits filed by two environmental groups, Water Watch and the Center for Biological Diversity. The latter sued the U.S. Bureau of Reclamation (BOR), the former sued BOR plus the irrigation districts, alleging that their operation of the Wickiup and Crane Prairie dams is harming the habitat of the Oregon spotted frog, which is protected as a “threatened species” under the Endangered Species Act. The suits were recently combined by agreement of all parties. Aside from what he views as antiquated water laws, Dewey pointed to “two-llamas-and-a-Prius gentleman farmers” whom he claims don’t know how to conserve water. “They use their farming losses as a tax write-off, and they don’t even grow anything,” he said. “The state considers almost anything a ‘beneficial use’ of water, so they use their water on big lawns, water features and so on.” Ryan Houston and his group, the Upper Deschutes Watershed Council, believe in a more collaborative, less litigious approach to the problem. He says that the river has been fundamental to every stage of Bend’s evolution—from early Native American and European settlement, to its heyday as a mill town, to today’s tourism and recreation-focused economy. Houston says that we’re still wrestling with the ecological impact of Bend’s logging days—in those days, the river was cleared of much of the dead wood that rivers need to sustain a healthy ecosystem to facilitate moving logs up the river. That damage can take decades, even centuries to right, so his organization is helping to restore that habitat balance by placing dead wood back in the river. But boaters, floaters and others who recreate on the river aren’t always happy about that. “People floating the river don’t want a huge 150-foot-tall ponderosa pine in their way as they float down the river,” says Houston, a native of Southern California who moved to Bend in 2001. And so, the debate over how to manage the river isn’t just about streamflow, and it’s not just fishermen and conservationists versus big agriculture. Add issues such as restoring the river habitat and the interests of tourism and recreation, and you have a contentious stew indeed. Few know more about being caught in the middle of these competing interests than Tod Heisler, the executive director of The Deschutes River Conservancy, a Bend-based nonprofit that is coordinating the Upper Deschutes Basin Study, a $1.5 million collaborative process that seeks to “provide a road map to meet water needs for rivers, agriculture and communities for the next fifty years.” Heisler says that while the problem stretch of the Upper Deschutes appears to present a “seemingly intractable” set of issues, he believes an agreement could be reached in one of three ways: through the courts, via the spotted frog lawsuit, through the voluntary basin-study group process, or through the regulatory process, based on the habitat conservation plan being prepared by the irrigation districts and the city of Prineville. (In the latter scenario, this group is seeking a permit that would essentially exempt them from lawsuits such as the spotted frog one. Their habitat conservation plan, which would need to be approved by two federal agencies, and withstand scrutiny and, potentially, lawsuits from environmental groups, would have to make the case that they have a plan to mitigate the impact of their actions on protected species such as the Oregon spotted frog.) “This won’t be an academic report that just sits on someone’s desk,” Heisler said. “It’s going to be a solutions-based study, based on science, that could result in the negotiation of a regional water management agreeement Central Oregon so urgently needs.” THE TECHNOCRATS If you saw Douglas DeFlitch sitting in a corner of the Bluebird Coffee Company, steeping a cup of black tea, you might guess that he works for an environmental NGO, rather than BOR. Yancy Lind only “half- facetiously” described DeFlitch, who manages BOR’s Bend Field Office, as “the enemy.” But when I met Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 6 of 11 Exhibit 126 Page 145 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/7/11 him, he had a week’s beard growth and wore a pair of faded jeans and a puffy winter coat. “Casual Friday,” he explained. And when asked about the problem area of the Upper Deschutes, he was candid, not at all like the stereotype of the secretive government bureaucrat. “It is the last worst place on the Upper Deschutes,” he said of the stretch between Wickiup and Sunriver. “But we’ve spent a lot of money and effort working to put more water instream to solve the problem.” DeFlitch contends that management of the river has been tilting more toward the natural end of the spectrum in recent years and will continue in that direction. But he cautions that changes cannot happen overnight because irrigators have rights that are enshrined in law, and maintains that the current system delivers large economic benefits to Central Oregon. “We’ve grown economies based upon a particular use of the river so you need to take that into consideration before you change from the way the river has been managed,” he said. Kyle Gorman, a region manager for Oregon’s Water Resources Department, was more blunt than DeFlitch in attempting to refute claims I’d heard from conservationists. I’d heard that the existing “use it or lose it” water laws encourage waste, but Gorman says not so, because those who don’t need their water can lease it back instream and not lose their water rights. Environmentalists complained to me that the required “beneficial use” of water can include anything, even watering rocks, but Gorman scoffs at this notion, insisting that regional watermasters investigate reports of this kind of misuse. (Though he admits that there’s nothing the state can do if farmers want to have big lawns and water features.) And Gorman thinks that those who advocate for a completely natural approach to the river aren’t considering all aspects of a complicated issue. “Folks that have the water rights, they were promised those rights and told if they developed the land and continued to use the water, they could retain those rights,” he said, “You can’t take something away from someone by just pointing a finger and saying, ‘I don’t like that, I want it changed,’ to the detriment of someone else’s investment that they’ve made.” THE FARMERS AND RANCHERS Matt Borlen’s ranch is situated just beyond where the rolling hills east of Bend give way to the parched farms and ranches in the tiny community of Alfalfa. Before setting foot on his property, I met some of his 300 cows—black and red Angus, Tarentaise, and Hereford, beautiful creatures who linger close to the fence and study passersby. Given the arid landscape, water rights are no trifling manner in these parts. But Borlen is an optimist, and he greeted me on a blustery morning in early February with a smile and apologies for “being so dirty.” Borlen and his father, Bob, humanely raise cattle and provide ground beef that is used in the burgers at the Deschutes Brewery Pub and other area restaurants. During the irrigation season, they order their water from the Central Oregon Irrigation District (COID). The water comes to them through the Central Oregon Canal, which flows behind Fred Meyer, and through the Pilot Butte Canal to a sub-canal that flows through their property. That canal leads to a pond, where a pump connects it to underground pipes that fan out across the fifty-two acres they irrigate. “Without this water, we couldn’t grow hay, we couldn’t sustain the cows,” he said, as we tromped around the ranch against a brisk wind. Borlen said that he’s invested tens of thousands of dollars in infrastructure improvements to make more efficient use of their water resources. He loves frogs and wildlife and “all the other things that everyone loves about living here” but is frustrated by the lawsuit. “We all have to eat,” he said. “Food has to be produced somewhere. We want to buy local don’t we? We’re trying to be good stewards of our natural resources, but the lawsuit could shut down people like me. The money we’ll spend on lawyers could be spent on conservation, and ultimately we’ll have to pass those (legal) costs on to our customers.”Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 7 of 11 Exhibit 126 Page 146 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/8/11 I asked Borlen about some of the “two llamas and a Prius” complaints I’d heard, and he said that his community wasn’t as tight-knit as it was years ago, so it was hard for him to evaluate how others were doing. But COID’s Shon Rae, who grew up on a farm in Redmond, said that it’s harder for small farmers to afford the kind of infrastructure that would make them more efficient. She says that COID monitors and fines “bad apples” who waste water and insists that attacks on “gentleman farmers” are unfair. “They are getting into morals and values,” she said of the critics. “They’re saying that it’s wrong to have a small farm, they’re telling people how to live. We don’t tell them how to live.” Seth Klann is a seventh-generation farmer whose family migrated to Oregon because of the Homestead Act of 1862, which encouraged western migration by providing settlers 160 acres of public land. He has a craft malthouse north of Madras that sells estate malt to craft brewers such as Deschutes, Ale Apothecary, Wild Ride and others. As a member of the North Unit irrigation district—which has the most recent (from 1916) and thus most junior water rights in the region—he and other farmers “at the end of the irrigation line” have had no choice but to invest in technology to be resource efficient. Klann believes that the Oregon spotted frog lawsuit could have huge implications for every farmer and rancher in the region. “Farmers aren’t making infrastructure investments because they’re afraid they might lose their water rights,” he says. “If the water goes away, Madras will become a ghost town.” Klann says that they get just eight inches of rain per year in Madras but need twenty to malt barley. He wants to plead his case and that of other farmers in the court of public opinion, rather than in a court of law. “I’m frustrated because my family poured so much work into this place, moving lava rock, surviving depressions and droughts,” he said, his voice rising. “We make due with so little water and now everything —all the hard work— could be wiped away by one lawsuit.” Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 8 of 11 Exhibit 126 Page 147 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/9/11 SOLUTIONS On a life-affirming, perfect Saturday in January, the kind of day where the sun plants a golden kiss on the snowcapped mountains, I could hear the reassuring gurgle of Whychus Creek, a tributary of the Middle Deschutes, before I could see it. I parked at the Whychus Creek trailhead, off Forest Road 16 south of Sisters, and the sound hit me immediately. I’d come to check out the Whychus because Douglas DeFlitch and others told me it was a great example of the positive work that’s been done to restore streamflow in the Middle Deschutes region, which had the opposite streamflow problem than the Upper Deschutes (heavy streamflow in winter, low in summer). Walking upstream along the Whychus Creek trail, alongside the reassuringly regular streamflow, I could see and hear that they were right. Four days later, at the urging of Yancy Lind and many others who had encouraged me to see the “ecological kill zone” south of Sunriver, I drove south from Bend, and parked my car on a steep, snow- covered bluff above the Deschutes at La Pine State Park. It was another gorgeous day, but the place was deserted, save for one old man with a long gray beard riding his bike with a fluffy Old English sheepdog in tow. This time, even though I could see the river below, I recognized the problem right away: I couldn’t hear it. I crept closer and could see sections were frozen, and what was flowing was sluggish, almost stagnant. I stood close to the riverbank and had to remain perfectly still just to hear the anemic flow. Who is going to Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 9 of 11 Exhibit 126 Page 148 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/10/11 « SURFING ON GOLFBOARDS LOCAL MOUNTAIN BIKING » fix this mess, I wondered. Will it be a judge? A study group? A government agency? Or will it be us, the people who live here and hold this iconic river close to our hearts? Kyle Gorman believes that we need public funding to help irrigation interests create infrastructure that will allow them to use water more efficiently. Paul Dewey and a host of other conservationists want to see water laws changed to allow for more natural management of the river. Tod Heisler and many others contend that the most durable solution will come via the collaborative, scientific study group process that includes all stakeholders. Jeff Perin doesn’t really care how the problem is resolved, so long as he gets the Upper Deschutes of his childhood back, the river that got him hooked on fly-fishing. Perin witnessed the October 2013 fish kill, but he was also part of the grassroots “bucket brigades” efforts in the fall of 2014 and 2015 that rescued hundreds of fish. He saw how concerned citizens, anticipating that low streamflows could trap and kill fish, got together and did something about the problem, and so he knows the situation isn’t hopeless. “When we’re quietly rowing a drift boat on a day with perfect blue skies, past all these tall trees with their red bark through these gentle currents of the Upper Deschutes, and we cast dry flies toward the banks and catch these great fish—that’s what people come back for year after year,” he said. “I still love this river and I believe we can fix it.” T H E R O A R I N G R A P I D S O F B E N H A M F A L L S O N T H E D E S C H U T E S J U S T A B O V E B E N D . Share This Article WE ALSO RECOMMEND Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 10 of 11 Exhibit 126 Page 149 of 204 11/19/21, 12:37 PM https://bendmagazine.com/the-deschutes-basins-last-great-problem/ https://bendmagazine.com/the-deschutes-basins-last-great-problem/11/11 COPYRIGHT © 2021 · OREGON MEDIA LLC BEND MAGAZINE: ABOUT US · CONTACT US · ADVERTISE COMPANY: PRIVACY POLICY · PUBLISHER'S LETTER · OREGON MEDIA, LLC SUBSCRIBE: GIVE A GIFT · SUBSCRIPTIONS BEND ARTIST SARAH ROOT CREATES SKETCHES INSPIRED BY WILDLIFE MEET LEW HOLLANDER, WORLD CHAMPION ENDURANCE ATHLETE AND PHYSICIST THRIVING AT 90 AS TRASH PILES UP AND TRAILS WEAR DOWN, HERE’S HOW WE CAN ALL HELP KEEP BEND GREEN BEND’S BELOVED SHEVLIN PARK AND DRAKE PARK CELEBRATE 100 YEAR ANNIVERSARIES 21 UNIQUE WAYS T SUMMER IN BEN CENTRAL ORE Privacy - Terms ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Exhibit 33 Page 11 of 11 Exhibit 126 Page 150 of 204 11/19/21, 12:47 PM C.O. farmers, struggling to survive amid drought, seek changes in wildlife habitat plan - KTVZ https://ktvz.com/news/environment/2021/08/17/spotted-frog-debate-returns-amid-drought-c-o-farmers-meeting-to-build-support/1/16 Find A Nike® Store Near You NikeSeattle Environment By Carly Keenan Published August 17, 2021 12:00 PM C.O. farmers, struggling to survive amid drought, seek changes in wildlife habitat plan C.O. farmers struggle to irrigate crops amid droughC.O. farmers struggle to irrigate crops amid drough…… MENU 51° Exhibit 34 Page 1 of 3 Exhibit 126 Page 151 of 204 11/19/21, 12:47 PM C.O. farmers, struggling to survive amid drought, seek changes in wildlife habitat plan - KTVZ https://ktvz.com/news/environment/2021/08/17/spotted-frog-debate-returns-amid-drought-c-o-farmers-meeting-to-build-support/2/16 (Update: adding video, comments from rancher and conservationist) Spotted frog debate returns as C.O. farmers host meeting BEND, Ore. (KTVZ) -- The Deschutes Basin Habitat Conservation Plan protects spotted frogs, bull trout, and other wildlife. It also limits the amount of water ranchers and farmers can use. That limit -- plus a severe drought this year -- is taking a toll on their livelihoods. "At this point, we really have nothing to lose." JoHanna Symons, owner of Symons Livestock LLC and Symons Beef Co., and co-founder of the nonprofit Perfect Balance USA, said Tuesday. That's why she organized a meeting Tuesday evening for farmers to discuss the issues and work to come up with a better balance between irrigation and conservation. Symons says she wants to amend the current plan and add infrastructure that would take water from Lake Billy Chinook. Symons says most of her farmland has dried out. "We are not going to be feeding, probably, any cattle this winter, because we cannot find the commodities." Symons said. Tod Heisler, rivers conservation director of Central Oregon LandWatch says protected wildlife, like the spotted frog, are declining in record numbers. While he was unavailable to speak on camera Tuesday, he says they sympathize with farmers, but that water users with first priority (senior water rights) to the river are the most inefficient. He gave this statement to NewsChannel 21: "We are well aware of this year’s historic water shortages and the impacts to fish and wildlife. A century ago, the water that ADVERTISING MENU 51° Exhibit 34 Page 2 of 3 Exhibit 126 Page 152 of 204 11/19/21, 12:47 PM C.O. farmers, struggling to survive amid drought, seek changes in wildlife habitat plan - KTVZ https://ktvz.com/news/environment/2021/08/17/spotted-frog-debate-returns-amid-drought-c-o-farmers-meeting-to-build-support/3/16 fish and wildlife needed to survive was allocated to agriculture. Now, we see these species declining in record numbers. "The current shortage is driven by an antiquated, inefficient, and wasteful irrigation system. The water users with first priority to the river are also the most inefficient. Irrigators in Deschutes County divert three times more water than Jefferson County farmers, even in this severe drought year. "At LandWatch, we sympathize with farmers in Jefferson County who desperately need water for their livelihoods, while most of the water in our basin is used on lifestyle properties in other areas that do not produce crops. "The way forward must include all of the conservation measures available to us, not just main canal piping. These measures can consist of piping private laterals, improving irrigation systems on-farm, administering a water bank that can reallocate water resources through water leasing, water transfers, and other incentive-based approaches." In-store shopping Curbside pickup Delivery Symons says the issue needs to be solved -- and soon. "I'm looking for a short-term solution, where we're all still around to enjoy a long- term solution," she said. When asked what she's willing to compromise in order to find a balance between irrigation and conservation, Symons says she's already compromised so much. "There's already been a lot of compromise. We got 1,100 acres of farmland, and I still have a lot of the same expenses." Symons said. "Especially to keep a lot of that land, the weeds down, erosion under control, and we've probably got around 400 acres in production. So that's our compromise already," she said. "I don't know how much more we can compromise without going out of business." Environment Purple Purple Is In Your Neighborhood Visit Us at Our Location Near You! Store info Directions MENU 51° Exhibit 34 Page 3 of 3 Exhibit 126 Page 153 of 204 Exhibit 35 Page 1 of 6 Exhibit 126 Page 154 of 204 Exhibit 35 Page 2 of 6 Exhibit 126 Page 155 of 204 Exhibit 35 Page 3 of 6 Exhibit 126 Page 156 of 204 Exhibit 35 Page 4 of 6 Exhibit 126 Page 157 of 204 Exhibit 35 Page 5 of 6 Exhibit 126 Page 158 of 204 Exhibit 35 Page 6 of 6 Exhibit 126 Page 159 of 204 Oregon Theodore R. Kulongoski, Governor Department of Fish and Wildlife High Desert Region 61374 Parrell Road Bend, OR 97702 (541) 388-6363 FAX (541) 388-6281 June 13, 2008 Deschutes County Community Development Department Planning Division 117 NW Lafayette Ave Bend, OR 97701 ATTN: Ruth Wahl RE: Thornburgh Resort Company – Final Master Plan Approval Oregon Department of Fish and Wildlife (ODFW) has reviewed the Thornburgh Resort Company’s (Resort) application for a Final Master Plan approval relative to meeting Deschutes County Code 18.113.070(D): “Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource” (DCC). Since November 2004, ODFW has invested hundreds of hours providing recommendations to the Resort and Deschutes County regarding assessing projected Resort impacts on fish and wildlife resources and measures the Resort could implement to mitigate those projected impacts. ODFW follows the direction provided in ODFW’s Fish and Wildlife Habitat Mitigation Policy – Oregon Administrative Rules (OARs) 635-415-0000 to 0025, http://www.dfw.state.or.us/lands/mitigation_policy.asp when working with others on land management actions. The purpose of these rules is to further the Wildlife Policy (ORS 496.012) and the Food Fish Management Policy (ORS 506.109) of the State of Oregon through the application of consistent goals and standards to mitigate impacts to fish and wildlife habitat caused by land and water development actions. Wildlife Habitat Impact Assessment The wildlife habitat impact assessment (WHIA) submitted by the Resort in their Final Master Plan is the most complete WHIA conducted for the siting of a destination resort in central Oregon. ODFW recommended the Resort use a modified Habitat Evaluation Procedures (HEP) methodology to assess projected impacts on the wildlife resource. ODFW has recommended the use of a modified HEP to all proposed destination resort sitings in central Oregon since 1994. As described in the Resort’s wildlife mitigation plan and Appendix E, the modified HEP has its limitations. All of the wildlife habitat values and projected impacts were subjective, based on the Resort consultant and ODFW staff professional judgment, rather then on scientifically measurable field factors. ODFW believes the modified HEP outputs, based on resource value input from both the consultant and ODFW, results in a fair approximation of what a very expensive and time consuming field measurable HEP would produce. However, if a field measurable HEP was developed, subjective inputs would also be needed to build new or modify existing HEP models. To build a field measurable HEP, a separate assessment model would need to be developed for each of the seven selected wildlife evaluation species in central Oregon. Model factors and factor weights within each model would be based on subjective professional judgment garnered from literature reviews. For some potential impacts, such as wildlife impacts associated with increased traffic along Cline Falls Highway, there is not a good methodology to assess those projected impacts. This leaves the developer’s consultant and ODFW relying more extensively on professional judgment rather than a methodology that could provide a more quantifiable finding that could be more quantifiably mitigated. Wildlife Mitigation Plan The Resort’s wildlife mitigation plan (WMP) described both onsite and offsite mitigation measures that will need to be implemented to meet DCC. Many of the measures are tied to Resort construction phases and access to proximate Bureau of Land Management (BLM) land, rendering the measures conceptual until implemented. To improve the feasibility that the mitigation measures will be implemented as described, there are provisions within the WMP to help Deschutes County, the regulatory agency, ODFW, and BLM track implementation. The following statement summarizes those provisions (page 14 WMP): Exhibit 36 Page 1 of 3 Exhibit 126 Page 160 of 204 ODFW Comments Thornburgh Destination Resort - Final Master Plan Fish and Wildlife Assessment and Mitigation Measures Page 2 of 3 “TRC [Thornburgh Resort Company] shall prepare an annual report for Deschutes County, BLM, and ODFW by December 31, which describes the mitigation tasks completed and associated expenditures. TRC, Deschutes County, ODFW, and BLM will meet annually to review and confirm that mitigation is being implemented as designed until mitigation is fully completed and a funding source is in place to assure long-term maintenance is established. Any of these entities may perform an annual inspection upon request.” Potential Impacts of Ground Water Withdrawals on Fish Habitat and Mitigation Measures The Thornburgh Resort development plans to use up to 9.97 cfs (2,129 acre feet) of groundwater to provide water for the resort and will do so in two phases. The company applied for a groundwater permit within the Deschutes Groundwater Study Area. When obtaining a groundwater permit in the Deschutes Groundwater Study Area a proposed water use generates a “Mitigation Obligation” which must be offset by “Mitigation Credits” for the volume of consumptive use of the groundwater permit application. The Oregon Water Resources Department, (OWRD) determined the mitigation requirement to be 1,356 acre feet. As required by the Deschutes Basin Groundwater Mitigation Rules (OAR 690-505-0600 to 0630) Thornburgh Resort LLC obtained these “Mitigation Credits” to offset their new use of groundwater. The OWRD determined the zone of impact to be the “General Zone of Impact”. To meet their mitigation obligation the resort development company proposes transferring water in-stream from a combination of Central Oregon Irrigation District (COID) and Big Falls Ranch water rights. Under state law the Thornburgh Resort LLC has fully met its mitigation requirements for offsetting its groundwater use in the Deschutes Groundwater Study Area. However, the Deschutes County Code (“DCC”) 18.113.070 (D), has a different standard that applies. The county code states, “Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource.” The OWRD groundwater use mitigation requirements do not cover all impacts of pumping groundwater in the Deschutes Groundwater Study Area. The Oregon Water Resource Department and United States Geological Service’s groundwater model indicates that groundwater in the Deschutes Groundwater Study Area is hydro-geologically connected to the surface water within the basin; therefore, any groundwater pumping within the study area will have an effect on local springs. Springs and seeps are important groundwater dependent ecosystems in the Deschutes Groundwater Study Area providing unique habitat for a number of plant and animal species including fish. Springs provide a natural relative constancy of water temperature. Spring and seep flows especially in the summer and fall, are typically cooler than the water flowing in the main stream. This cooler water provides thermal refugee for salmonid which thrive in cooler water. The unique habitat that springs provide typically warrants them being classified as Category 1 habitat under ODFW’s mitigation criteria because they are considered irreplaceable. However, in this particular case a component of the mitigation proposed by the resort developer is to acquire water rights that would open up a spring source currently being used for irrigation. As directed in ODFW’s mitigation policy, habitat that can be mitigated is in categories 2 through 6. In this particular case the potential impact to springs and seeps will likely be mitigated by transferring springs flows used for irrigation directly back into Deep Canyon Creek and the Deschutes River. These springs should provide similar habitat and help with water temperatures in the Deschutes River. The resort developer has proposed, at full build out of the resort, providing 519.18 af of water from COID and 836.82 af from Big Falls Ranch for a total of 1,354 af. These water rights are both irrigation rights with a season of use of April 1st to November 1st (214 days). The 1,354 af will be a consumptive use spread out over the entire year or an average daily impacted of 3.715 af/day which equates to 1.87 cfs. As shown in Table 1, during the irrigation season the resort is proposing to provide water instream above their average daily impacted both in total and as spring water from the Deep Canyon Creek water right. Exhibit 36 Page 2 of 3 Exhibit 126 Page 161 of 204 ODFW Comments Thornburgh Destination Resort - Final Master Plan Fish and Wildlife Assessment and Mitigation Measures Page 3 of 3 Table 1 Phase COID Big Falls Ranch Phase 1 153.43 af .717 af/day .36 cfs 315.0 af 1.472 af/day .74 cfs Phase 2 365.75 af 1.709 .86 cfs 527.82 af 2.467 af/day 1.24 cfs Total 519.18 af 2.426 af/day 1.22 cfs 836.82 af 3.910 af/day 1.97 cfs During the irrigation season when ODFW is most concerned about impacts to springs and flows in the Deschutes River; the mitigation water from the springs in Deep Canyon Creek exceeds the flows needed to mitigate for potential spring and seep impacts from the development (1.97 cfs vs 1.87 cfs). Flows from COID during the irrigation season provide a net benefit in instream flows for the Deschutes River. There will be a potential net deficit of 1.87 cfs to springs and seeps from the resort between November 1st andMarch 31st because the mitigation water is being provide during the irrigation season. However, because flowsare higher and stream temperatures lower during this time period ODFW does not believe there will be an adverse impact to the fish and wildlife habitat during this time period. To facilitate necessary habitat functions, the dam associated with the transferred Deep Canyon Creek water right should be removed prior to the beginning construction of phase 1. Ultimately prior to the beginning of phase 2, other dams upstream of the Deep Canyon Creek point of diversion should be removed to provide for unimpeded spring flow. The water to be used for mitigation of resort groundwater should be acquired and transferred instream, with existing priority date prior too the implementation of each phase of development. The resort developer has also proposed to abandon domestic wells located on the development property and have proposed to provide funds to help complete an on-going thermal modeling project on Whychus Creek which ODFW considers contributing to the net benefit requirements of the Mitigation Policy. ODFW has determined that providing the proposed mitigation outlined above should mitigate for potential impacts on springs and seeps and provide a net benefit to the resource. ODFW appreciates the opportunity to work with Deschutes County and the Resort to assess potential impacts to fish and wildlife resources and to propose measures that should mitigation those impacts as directed by DCC 18.113.070(D). Mitigation will be conceptual until measures are implemented, some of which will need to be maintained in perpetuity. Sincerely, Amy Stuart Deschutes District Watershed Manager Exhibit 36 Page 3 of 3 Exhibit 126 Page 162 of 204 THORNBURGH RESORTSOUTHERN ROAD (BLM) CONSTRUCTION DRAWINGSLOCATED AT TOWNSHIP 15 SOUTH, REGION 12 EAST SECTIONS 28 & 29DESCHUTES COUNTY, OREGONOWNER/DEVELOPERCENTRAL LAND & CATTLE COMPANY2447 NW CANYON DRREDMOND, OR 97756PH: (541) 350-8479APPROVALSDESCHUTES COUNTY ROAD DEPT:__________________________PROPOSEDEXISTING3584PROPERTY BOUNDARYEDGE OF PAVEMENTWATER LINE LINE (SIZE AS NOTED)SANITARY SEWER LINE (SIZE AS NOTED)COMMON UTILITY LINEFIRE HYDRANTWATER VALVE (G.V. / B.F.V.)WATER METERELECTRIC SERVICECABLE TV SERVICE/RISERTELEPHONE RISERTRANSFORMERSECTIONALIZING CABINET/TRANSFORMERLIGHTCLUSTER POSTAL DELIVERY BOXSIGNSEWER MANHOLECONTOUR LINE, 5' INTERVALCONTOUR LINE, 1' INTERVALDECIDUOUS TREE, SIZE AS NOTEDJUNIPER TREE, SIZE AS NOTEDTVELWM3585WS LEGEND35843585CUTWSSSITE MAPSCALE: 1"=200'PROPERTY BOUNDARYCURBEDGE OF PAVEMENTWATER LINE LINE (SIZE AS NOTED)WATER SERVICE (SIZE AS NOTED)SANITARY SEWER LINE (SIZE AS NOTED)SANITARY SEWER SERVICE (SIZE AS NOTED)STORM DRAIN (SIZE AS NOTED)DRAINAGE BASINCOMMON UTILITY LINEUTILITY SERVICEASPHALT PAVINGCONCRETEFIRE HYDRANTWATER VALVE (G.V. / B.F.V.)WATER METERELECTRIC SERVICESECTIONALIZING CABINET/TRANSFORMERCLUSTER POSTAL DELIVERY BOXSIGNSEWER MANHOLECONTOUR LINE, 5' INTERVALCONTOUR LINE, 1' INTERVALSOUTHERN ROAD (BLM)CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC1.1OREGONREDMOND18011006/07/2021COVER SHEETRCGRCGMPDAS SHOWN180110-H-SouthernRd-PP00.dwgCLIN E F A L L S H W Y (EXI S T I N G )SHEET INDEXSHEETNUMBERSHEET TITLEC1.1COVER SHEETC2.1C3.1EXISTING CONDITIONS & DEMOLITION PLANSOUTHERN ROAD PLAN & PROFILE STA 58+00 TO ENDPROPERTY BOUNDARYSECTION LINETHORNBURGH RESORTSOUTHERN ROAD PLAN & PROFILE STA 48+50 TO 58+00SOUTHERN ROAD PLAN & PROFILE STA 40+00 TO 48+50C3.2C3.3C1.2NOTESC1.3TYPICAL SECTIONSSEE SOUTHERN ROAD(PRIVATE) PLANSPROJECTSITEVICINITY MAPSCALE: 1" = 10,000'HWYCLINEFALLS OR HWY 126US HWY 97 EAGLECRESTRESORTSOUTHERN ROAD (BLM)Exhibit 37 Page 1 of 7Exhibit 126 Page 163 of 204 CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC1.2OREGONREDMOND180110NOTESRCGRCGMPDAS SHOWN180110-H-SouthernRd-PP00.dwg1. NO CONSTRUCTION SHALL BE STARTED WITHOUT A NOTICE TO PROCEED BY DESCHUTES COUNTY ENGINEERING DEPARTMENT. THEDESCHUTES COUNTY ENGINEERING DEPARTMENT AND THE DESIGN ENGINEER SHALL BE NOTIFIED AT LEAST 24 HOURS PRIOR TO THESTART OF CONSTRUCTION. ANY CONSTRUCTION WORK DONE PRIOR TO NOTICE TO PROCEED BEING ISSUED OR WITHOUT INSPECTIONWILL BE REJECTED.2.CONTRACTOR SHALL VERIFY ALL CONDITIONS ON THE JOB SITE INCLUDING BUT NOT LIMITED TO, ALL DIMENSIONS, GRADES,ELEVATIONS, EXTENT AND COMPATIBILITY TO THE EXISTING SITE CONDITIONS, AND WITH THE WORK DESCRIBED ON THE DESIGNENGINEER'S DRAWINGS. ANY DISCREPANCIES OR UNEXPECTED CONDITIONS THAT AFFECT OR CHANGE THE WORK DESCRIBED IN THECONTRACT DOCUMENTS SHALL BE BROUGHT TO THE DESIGN ENGINEER'S ATTENTION IMMEDIATELY. CONTRACTOR SHALL NOTPROCEED WITH ANY OF THE WORK IN THE AREA OF DISCREPANCIES UNTIL ALL SUCH DISCREPANCIES ARE RESOLVED. IF THECONTRACTOR CHOOSES TO DO SO, THEN IT IS UNDERSTOOD THAT THE CONTRACTOR IS CHOOSING TO PROCEED AT THECONTRACTOR'S OWN RISK AND SHALL INCUR ALL COSTS, IF ANY TO RESOLVE THE ISSUES TO THE SATISFACTION OF THE DESIGNENGINEER.3.ALL PRIVATE WATER AND SEWER CONSTRUCTION WORK SHALL CONFORM TO CURRENT OREGON PLUMBING SPECIALTY CODE ANDSHALL BE SUBJECT TO PERMITS AND APPROVAL FROM THE DESCHUTES COUNTY BUILDING DEPARTMENT, THE OREGON HEALTHAUTHORITY (WATER), AND THE OREGON DEQ (SEWER).4.A COUNTY INSPECTOR ACTING ON BEHALF OF THE COUNTY MAY REQUIRE REVISIONS IN PLANS TO SOLVE UNFORESEEN PROBLEMSTHAT MAY ARISE IN THE FIELD. ANY REVISION SHALL BE APPROVED BY THE DESIGN ENGINEER PRIOR TO CONSTRUCTION.5.ALL CONSTRUCTION WORK AND INSTALLATIONS SHALL CONFORM TO CURRENT DESCHUTES COUNTY STANDARDS AND SPECIFICATIONS,AND ALL WORK SHALL BE SUBJECT TO THE APPROVAL OF DESCHUTES COUNTY. ALL CONSTRUCTION SURVEYING SHALL BE INACCORDANCE WITH CURRENT DESCHUTES COUNTY STANDARDS AND SPECIFICATIONS.6.IT SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR TO CONTACT "UNDERGROUND LOCATE SERVICE" AT 1-800-332-2344 AT LEAST 48BUSINESS-DAY HOURS PRIOR TO THE START OF CONSTRUCTION FOR THE LOCATION OF UNDERGROUND WATER, SEWER, STORM DRAIN,POWER, GAS, OIL, CABLE TV, AND TELEPHONE FACILITIES. THE CONTRACTOR WILL ALSO BE RESPONSIBLE FOR CONTACTING THEAPPROPRIATE PUBLIC AGENCY FOR THE LOCATION OF UNDERGROUND FACILITIES.7.ALL UTILITIES SHOWN ARE ACCURATE TO THE EXTENT OF AVAILABLE RECORDS AND KNOWLEDGE. THE CONTRACTOR HAS THE TOTALRESPONSIBILITY TO VERIFY THE LOCATION OF EXISTING UNDERGROUND UTILITIES AND TO NOTIFY THE UTILITY COMPANIES WHENWORKING IN THEIR PROXIMITY. CONTRACTOR TO VERIFY LOCATION OF EXISTING UTILITIES PRIOR TO CONSTRUCTION. OREGON LAWREQUIRES THE CONTRACTOR TO FOLLOW RULES ADOPTED BY THE OREGON UTILITY NOTIFICATION CENTER. THOSE RULES ARE SETFORTH IN OAR 952-001-0010 THROUGH 952-001-0090. ONE MAY OBTAIN COPIES OF THE RULES BY CALLING THE CENTER. THE TELEPHONENUMBER FOR THE OREGON UTILITY NOTIFICATION CENTER IS (503)232-2987.8. THE CONTRACTOR SHALL FOLLOW ALL APPLICABLE INDUSTRIAL SAFETY REGULATIONS. DESCHUTES COUNTY AND THEIR OFFICIALS,THE DESIGN ENGINEER, AND THE OWNER SHALL NOT BE RESPONSIBLE FOR ENFORCING SAFETY REGULATIONS.9.ALL PUBLIC WORK SHALL BE PERFORMED BY A COUNTY APPROVED CONTRACTOR.10.CONTRACTOR SHALL TAKE ALL NECESSARY PRECAUTIONS TO PROTECT EXISTING UTILITIES, SURFACE FEATURES, LANDSCAPING,IRRIGATION SYSTEMS, AND IMPROVEMENTS. ANY DAMAGE TO THESE EXISTING FACILITIES OR IMPROVEMENTS RESULTING FROM THECONTRACTOR'S OPERATIONS WILL BE REPAIRED OR REPLACED TO EXISTING OR BETTER CONDITIONS, AT THE CONTRACTOR'SEXPENSE.11.EXISTING UTILITY INFORMATION SHOWN IS BASED ON UTILITY LOCATES ONLY, NOT POTHOLING. CONTRACTOR SHALL BE RESPONSIBLEFOR POTHOLING ALL POTENTIALLY CONFLICTING UTILITIES PRIOR TO CONSTRUCTION IN THE AREA, AND REPORTING ANYDISCREPANCIES FROM THE ENGINEERING DRAWINGS TO THE DESIGN ENGINEER. IF THE CONTRACTOR FAILS TO DO THIS, ANY WORK TOREMEDY THE SITUATION (I.E. REMOVING SECTIONS OF ALREADY LAID WATER PIPE TO CHANGE GRADES OR DIRECTIONS TO AVOIDEXISTING UTILITIES) WILL BE AT THE CONTRACTOR'S EXPENSE.12.CONTRACTOR SHALL EXPOSE, VERIFY, CONNECT, AND/OR MATCH EXISTING UTILITIES AND IMPROVEMENTS, IN CONFORMANCE WITHDESCHUTES COUNTY CURRENT STANDARDS AND SPECIFICATIONS, TO PROVIDE COMPLETE AND OPERATIONAL SYSTEMS.13. MATERIAL QUANTITIES USED, NOTED, OR PROVIDED IN A SEPARATE ITEMIZED QUANTITY TAKE-OFF ARE AN ENGINEERS OPINION OFPROBABLE MATERIAL REQUIREMENTS, AND ARE ESTIMATES ONLY.14.TRENCHES WITH PIPE COVER DEPTHS LESS THAN 12 INCHES FROM TOP OF PIPE TO SUBGRADE SHALL BE BACKFILLED WITHCONTROLLED LOW STRENGTH MATERIAL (CLSM).15.WHERE WATER MAINS AND SEWER MAINS CROSS: IF THE WATER MAIN IS LESS THAN 18 INCHES ABOVE THE STORM OR SANITARYSEWER, THE SEWER MAIN SHALL BE CONSTRUCTED OF ONE FULL LENGTH OF C-900 PIPE CENTERED ON THE CROSSING. WHERE THEWATER MAIN IS BELOW THE SEWER, THE SEWER MAIN SHALL BE CONSTRUCTED OF ONE FULL LENGTH OF C-900 PIPE CENTERED ONTHE CROSSING.16.ALL CONSTRUCTION SHALL CONFORM TO STATE AND FEDERAL STANDARDS REGARDING ACCESSIBILITY TO PEOPLE WITH DISABILITIES.17.TEMPORARY ACCESS FOR ALL USERS, INCLUDING THOSE WITH DISABILITIES, SHALL BE MAINTAINED AT ALL TIMES.18.ALL WATER MAINS AND FITTINGS ARE TO BE MECHANICALLY RESTRAINED IN ACCORDANCE WITH THESE PLANS.19.LENGTHS OF RESTRAINED WATER MAIN SHOWN ARE FOR THE ENTIRE COMPLETED SYSTEM AS SHOWN. THEY DO NOT INCLUDERESTRAINED LENGTHS FOR TEMPORARY CAPS AND DEAD ENDS THAT MAY BE REQUIRED FOR CONSTRUCTION PHASING OR PRESSURETESTING.20.ALL WORK SHALL BE IN CONFORMANCE WITH THE CURRENT EDITION OF THE OREGON STANDARD SPECIFICATIONS FOR CONSTRUCTIONAND DESCHUTES COUNTY CODE 17.48.GENERAL CONSTRUCTION NOTES:ABBREVIATIONSAC ASPHALT CONCRETEAGG AGGREGATEASTM AMERICAN SOCIETY FOR TESTING AND MATERIALSBTM BOTTOMBW BOTTOM OF WALLCB CATCH BASINCOMP COMPACTIONCPLG COUPLINGDCVA DOUBLE CHECK VALVE ASSEMBLYDCDA DOUBLE CHECK DETECTOR ASSEMBLYDI DUCTILE IRONDIAM DIAMETERDTL DETAILEG EXISTING GRADEELEC ELECTRICELEV ELEVATIONFG FINISH GRADEFPT FEMALE PIPE THREADGAL GALLONHMAC HOT MIX ASPHALT CONCRETEHORIZ HORIZONTALHVAC HEATING, VENTILATION, AND COOLINGINV INVERTJNT JOINTLF LINEAR FEETMIN MINIMUMMPT MALE PIPE THREADMUTCD MANUAL ON UNIFORM TRAFFIC CONTROL DEVICESNOM NOMINALOC ON CENTEROD OUTSIDE DIAMETERODOT OREGON DEPARTMENT OF TRANSPORATIONPCC PORTLAND CEMENT CONCRETEPVC POLYVINYL CHLORIDERE RIM ELEVATIONSD STORM DRAINSF SQUARE FEETSS SANITARY SEWERSS BOLT STAINLESS STEEL BOLTSTD STANDARDTBM TEMPORARY BENCHMARKTC TOP OF CURBTHKN THICKNESSTW TOP OF WALLTYP TYPICALVERT VERTICALWTR WATERWM WATER METER1. HOLD A PRE-CONSTRUCTION MEETING THAT INCLUDES THE INSPECTOR TO DISCUSS EROSION ANDSEDIMENT CONTROL MEASURES AND CONSTRUCTION LIMITS.2. THE ESC PLAN MUST BE KEPT ONSITE AT ALL TIMES WHEN WORK IS OCCURING.3. THE ESC MEASURES SHOWN ON THIS PLAN ARE MINIMUM REQUIREMENTS FOR ANTICIPATED SITECONDITIONS. DURING THE CONSTRUCTION PERIOD, THE MEASURES MUST BE UPGRADED AS NEEDED TOCOMPLY WITH ALL APPLICABLE LOCAL, STATE, AND FEDERAL EROSION AND SEDIMENT CONTROLREGULATIONS.4. INSPECT ALL ROADWAYS ADJACENT TO THE CONSTRUCTION ACCESS ROUTE AT THE END OF EACH DAY.SIGNIFICANT AMOUNTS OF SEDIMENT THAT LEAVES THE CONSTRUCTION SITE MUST BE CLEANED UP WITHIN24-HRS AND STABILIZED BACK ON THE SITE OR PROPERLY DISPOSED. THE CAUSE OF SEDIMENT RELEASEMUST BE IDENTIFIED AND PREVENTED FROM CAUSING A RECURRENCE OF THE DISCHARGE WITHIN THESAME 24-HRS. VACUUMING OR DRY SWEEPING MUST BE USED TO CLEAN-UP RELEASED SEDIMENT ANDSEDIMENT MUST NOT BE INTENTIONALLY WASHED INTO STORM SEWERS, DRAINAGE WAYS, OR WATERBODIES.5. COVER AND SECURE ALL DUMP TRUCK LOADS LEAVING THE CONSTRUCTION SITE TO MINIMIZE SPILLAGE ONROADS.6. RESTORE CONSTRUCTION ACCESS ROUTE EQUAL TO OR BETTER THAN THE PRE-CONSTRUCTIONCONDITION.7. CONTROL FUGITIVE DUST FROM CONSTRUCTION ACTIVITY.8. STABILIZE EXPOSED UNWORKED SOILS (INCLUDING STOCKPILES), WHETHER AT FINAL GRADE OR NOT,WITHIN 10 CALENDAR DAYS DURING THE REGIONAL DRY SEASON (JULY 1 - SEPT. 30) AND WITHIN 5 CALENDARDAYS DURING THE REGIONAL WET SEASON (OCT. 1 - JUNE 30).9. PROTECT INLETS, DRYWELLS, CATCH BASINS AND OTHER STORMWATER MANAGEMENT FACILITIES FROMSEDIMENT, WHETHER OR NOT THE FACILITIES ARE OPERABLE.10. WHENEVER POSSIBLE, CONSTRUCT STORMWATER CONTROL FACILITIES (DETENTION/RETENTION STORAGEPOND OR SWALES) BEFORE GRADING BEGINS. THESE FACILITIES SHOULD BE OPERATIONAL BEFORE THECONSTRUCTION OF IMPERVIOUS SITE IMPROVEMENTS.11. STOCKPILE MATERIALS (SUCH AS TOPSOIL) ONSITE, KEEPING OFF ROADWAYS AND SIDEWALKS.12. COVER, CONTAIN AND PROTECT ALL CHEMICALS, LIQUID PRODUCTS, PETROLEUM PRODUCTS, ANDNON-INERT WASTES PRESENT ONSITE FROM VANDALISM. MAINTAIN A SUPPLY OF MATERIALS ON HAND TOADDRESS AND CONTAIN SPILLS.13. LOCATE DESIGNATED VEHICLE AND EQUIPMENT SERVICE AREAS, FUEL, AND MATERIALS AWAY FROMDRAINAGE INLETS, WATERCOURSES, AND CANALS. PROPERLY CONTAIN AREAS USING BERMS, SANDBAGS,OR OTHER BARRIERS. REGULARLY INSPECT AND MAINTAIN EQUIPMENT, ESPECIALLY FOR DAMAGED HOSESAND LEAKY GASKETS.14. DESIGNATE AN AREA FOR CLEANING PAINTING EQUIPMENT AND TOOLS. NEVER CLEAN BRUSHES OR RINSECONTAINERS INTO THE STREET, GUTTER, DRAINAGE INLET, OR WATERWAY.15. INSPECT ON A REGULAR BASIS (AT A MINIMUM WEEKLY, AND DAILY DURING/AFTER A RUNOFF PRODUCINGSTORM EVENT) AND MAINTAIN ALL EROSION AND SEDIMENT CONTROL BMPS TO ENSURE SUCCESSFULPERFORMANCE OF THE BMPS.16. REMOVE TEMPORARY ESC BMPS WITHIN 30 DAYS AFTER THE TEMPORARY BMPS ARE NO LONGER NEEDED.PERMANENTLY STABILIZE AREAS THAT ARE DISTURBED DURING THE REMOVAL PROCESS.GENERAL EROSION CONTROL NOTES1. ALL GRADING SHALL BE IN CONFORMANCE WITH THE CURRENT OREGON STRUCTURAL SPECIALTY CODEAND WITH DESCHUTES COUNTY GRADING, EXCAVATION, AND STORMWATER MANAGEMENT STANDARDS.2. IT SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR TO CONTACT "UNDERGROUND LOCATE SERVICE"AT 1-800-332-2344 AT LEAST 2 FULL BUSINESS DAYS PRIOR TO THE START OF CONSTRUCTION FORLOCATION OF UNDERGROUND WATER, SEWER, STORM DRAIN, POWER, GAS, OIL, CABLE TV, ANDTELEPHONE FACILITIES.3. THE PROPOSED DRAINAGE SYSTEM HAS BEEN DESIGNED IN CONFORMANCE WITH THE CURRENT VERSIONOF THE CENTRAL OREGON STORMWATER MANUAL (COSM)4. IN AREAS TO RECEIVE FILL THE EXISTING SOILS SHALL BE STRIPPED OF UNSUITABLE MATERIALS,SCARIFIED AND COMPACTED TO A MINIMUM OF 90% OF MAXIMUM DENSITY PRIOR TO PLACEMENT OF FILLMATERIAL.5. IN AREAS OF ASPHALT, CONCRETE, ROADWAY OR FUTURE BUILDING SITES THE SUBGRADE MATERIALSSHALL BE COMPACTED TO A RELATIVE COMPACTION OF 95% IN THE ZONE BETWEEN SUBGRADE AND ONEFOOT BELOW. ALL FILL MATERIAL UNDER AREAS OF ASPHALT, CONCRETE, ROADWAY OR FUTUREBUILDING SITES SHALL BE COMPACTED TO A RELATIVE COMPACTION OF 95%. IN CUT AREAS THE TOP ONEFOOT OF SUBGRADE SHALL BE COMPACTED TO 95%. THE PLACEMENT AND COMPACTION OF ALL FILLMATERIALS SHALL BE VERIFIED BY A GEOTECHNICAL ENGINEER.6. EXCAVATORS SHALL COMPLY WITH THE PROVISIONS OF OAR 952-001-0090.7. ALL PROPOSED CONTOURS SHOWN IN PAVED AREAS REPRESENT FINISHED SURFACES.8. ALL UNSUITABLE SOILS MATERIALS, RUBBISH, AND DEBRIS RESULTING FROM GRADING OPERATIONSSHALL BE REMOVED FROM THE JOB SITE AND DISPOSED OF PROPERLY.9. STOCKPILED MATERIALS SHALL BE PROTECTED FROM EROSION BY WIND OR AND WATER.10. THE CONTRACTOR SHALL EMPLOY ALL LABOR, EQUIPMENT, AND METHODS REQUIRED TO PREVENT THEIROPERATIONS FROM PRODUCING DUST IN AMOUNTS DAMAGING TO PROPERTY, CULTIVATED VEGETATION,AND DOMESTIC ANIMALS OR CAUSING A NUISANCE TO PERSONS OCCUPYING BUILDINGS IN THE VICINITYOF THE JOB SITE. THE CONTRACTOR SHALL BE RESPONSIBLE FOR ANY DAMAGE CAUSED BY DUSTRESULTING FROM HIS OPERATIONS.11. ALL GRADED AND/OR CLEARED AREAS, INCLUDING EXCAVATION AND FILL SLOPES, SHALL BERE-VEGETATED OR STABILIZED IN ORDER TO REDUCE EROSION, DUST, AND NOXIOUS WEEDS.12. CONTRACTOR TO PROVIDE FOR EROSION AND DRAINAGE CONTROL DURINGGRADING/CLEARING/CONSTRUCTION.13. CUT SLOPES IN SOIL AND LOOSE ROCK RUBBLE SHALL NOT EXCEED A RATIO OF 2 HORIZONTAL TO 1VERTICAL UNLESS PREVIOUSLY APPROVED BY ENGINEER. CUT SLOPES IN SOLID ROCK SHALL NOTEXCEED A RATIO OF 1/2 HORIZONTAL TO 1 VERTICAL. FILL SLOPES SHALL NOT EXCEED A RATIO OF 2HORIZONTAL TO 1 VERTICAL UNLESS PREVIOUSLY APPROVED BY ENGINEER.GRADING NOTESTHORNBURGH RESORT SOUTHERN ROAD (BLM)06/07/2021Exhibit 37 Page 2 of 7Exhibit 126 Page 164 of 204 CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC1.3OREGONREDMOND180110TYPICAL SECTIONSRCGRCGMPDAS SHOWN180110-H-SouthernRd-PP00.dwg30'15'1C1.3SCALE: 1"=5'TYPICAL SECTION - SOUTHERN ACCESS ROAD (PRIVATE ROAD TRACT)15'2:1 MAX.(TYP.)60' MINIMUM PRIVATE ROAD TRACT8" COMPACTEDAGGREGATE (34'' - 0'')2.3'2:1 MAX.(TYP.)FINISH GRADETYPICAL TRENCH INPAVED AREASTYPICAL TRENCH INLANDSCAPED AREASROAD SECTION36"MINCOVER24" MIN6"MINBEDDING MATERIALWARNING TAPETRACER WIRE #10SCREENED TRENCH SPOILS(3" MAX SIZE) PLACED INCOMPACTED LIFTS OFNO MORE THAN 8"SPOIL PILE24"JOINT UTILITY TRENCHSCALE: NOT TO SCALE3C1.3NOTE:1. CONTRACTOR TO ADJUST DRY UTILITY DEPTHS AS NEEDED TOAVOID WATER AND SEWER SERVICE LINES2. CONTRACTOR TO PROVIDE TRENCH EXCAVATION, BEDDINGMATERIAL, AND BACKFILL(2) 2'' SCH-40 PVC CONDUITWITH 1/4" POLY ROPE TO BEINSTALLED BY CONTRACTORFOR POWER AND COMMS3:12%2%2.3'3:1AGG.SHOULDER6" MINCOMPOST SOCK DETAILSCALE: NOT TO SCALE5C1.3SILT FENCE DETAILSCALE: NOT TO SCALE4C1.3WID E 2 0 '50' MINIMUMSUBGRADE REINFORCEMENTGEOTEXTILE, AS REQUIRED8" DEPTH OF 3"-6"CLEAN ROCKRADIUS = 25'MIN.CONSTRUCTION ENTRANCESCALE: NOT TO SCALE2C1.3THORNBURGH RESORT SOUTHERN ROAD (BLM)ROAD TO BE ASPHALT INTHE FUTURE4.0'SWALE TO BE MIN. 4'WIDE, 1' DEEP, EACHSIDE OF ROAD .CAPACITY = 25-YEARSTORMINSTALLATION PROCEDURE1. DRIVE 2"x2"x4' WOOD STAKES ALONGLENGTH OF SILT FENCE, SPACINGBETWEEN STAKES TO MATCHSTITCHED LOOPS IN FABRIC2. DIG 6"x6" TRENCH ALONG LENGTH OFSILT FENCE ON UPHILL SIDE OF STAKES3. PLACE FILTER FABRIC MATERIAL (36"ROLL WIDTH) ONTO STAKES4. BACKFILL AND COMPACT TRENCH2"x2"WOOD STAKEFILTER FABRIC MATERIAL WITHFACTORY-STITCHED LOOPS,6" BURYCOMPACTEDTRENCH BACKFILLGROUNDSURFACE6"12" 6"30"FLOWCOMPOST SOCK8" DIAMETER, 3" MIN. EMBEDMENT, 12" MIN.OVERLAP TO ADJACENT SOCK2"x2" WOOD STAKES WITH 12" MIN.EMBEDMENT, 10' ON CENTERCONSTRUCTION SITE06/07/2021Exhibit 37 Page 3 of 7Exhibit 126 Page 165 of 204 CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC2.1OREGONREDMOND180110EXISTING CONDITIONSRCGRCGMPD1"=60'180110-H-SouthernRd-PP00.dwgCLINE F A L L S H W YSECTION LINEPROPERTY BOUNDARYBUILDING SETBACK TAXLOTR-O-W R-O-W EXISTING18" CMP CULVERTTO BE REMOVEDEXISTING FENCEPROPERTY BOUNDARY EDGE OFPROPOSED ROADEDGE OFPROPOSED ROADMATCH BELOWMATCH ABOVE APPROX. EXISTING ACCESS EASEMENTAPPROX. EXISTING ACCESS EASEMENTAPPROX. EXISTING ACCESS EASEMENTAPPROX. EXISTING ACCESS EASEMENTSECTION LINEEXISTING ROADEXISTING ROADPROPOSED SAWCUT2' OFF EXISTING EDGEOF PAVEMENTREMOVE EXISTING FENCESEE SHEET C3.3 FOR DETAILSINSTALL 960 ± LF SILT FENCE 3' MIN.FROM EXISTING PROPERTY LINE.SEE DETAIL 4/C1.3INSTALL COMPOST SOCK PER DETAIL5/C1.3 AT PROPOSED LOW POINT / CULVERTINSTALL COMPOST SOCK PER DETAIL5/C1.3 AT PROPOSED LOW POINT / CULVERTINSTALL GRAVEL CONSTRUCTION ENTRANCEPER DETAIL 2/C1.3 PRIOR TO CONSTRUCTIONTHORNBURGH RESORT SOUTHERN ROAD (BLM) SEE SOUTHERN ROAD(PRIVATE) PLANS 06/07/2021Exhibit 37 Page 4 of 7Exhibit 126 Page 166 of 204 3160316531703175318031853190319532003205316031653170317531803185319031953200320539+0040+0041+0042+0043+0044+0045+0046+0047+0048+0048+5039+0039+5040+0040+5041+0041+5042+0042+5043+0043+5044+0044+5045+0045+5046+0046+5047+0047+5048+0048+503193.33194.463192.83193.873192.23193.233191.63192.593191.03191.943190.53191.303190.03190.663189.33190.023188.63189.383187.53188.743186.73188.103186.23187.463185.53186.823184.63186.183184.13185.53 3183.53184.89 3182.93184.25 3182.53183.61 3182.13183.03 3181.73182.54 3181.13182.14 3180.73181.83 3180.43181.56 3180.03181.28 3179.73181.00 3179.43180.72 3179.13180.45 3178.83180.17 3178.53179.89 3178.23179.62 3178.03179.34 3177.73179.06 3177.43178.79 3177.13178.51 3176.73178.23 3176.53177.96 3176.23177.68 -2.56%-1.11% LOW PT. STA: 44+46.15 LOW PT. ELEV: 3181.88PVI STA: 43+96.07PVI ELEV: 3182.43K: 68.78100.16' VCBVCS: 43+45.99 BVCE: 3183.71 EVCS: 44+46.15EVCE: 3181.88 39+00 40+0041+0042+0043+0044+0045+0046+0047+0048+0031 8 3 3 1 8 2 3 1 8 1 3 1 80 31793178317731 8 4 31 8 5 318631873188318931903191319231933194 CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC3.1SOUTHERN ROAD PLAN & PROFILE OREGONREDMOND180110STA: 40+00 - 48+50RCGRCGMPD1"=40'180110-H-SouthernRd-PP00.dwgMATCH S T A : 4 8 + 5 0 , S E E S H E E T C 3 . 2SOUTHERN ROAD PLAN, STA: 40+00 TO 48+50SCALE: 1" = 40'SOUTHERN ROAD PROFILE, STA: 40+00 TO 48+50SCALE: HORIZONTAL 1" = 40' / VERTICAL 1" = 10'EXISTING GROUND @℄ OF SOUTHERN ROADPROPOSED FINISH GRADE @℄ OF SOUTHERN ROADEXISTING GROUND @℄ OF SOUTHERN ROADPROPOSED FINISH GRADE @℄ OF SOUTHERN ROADROAD CONSTRUCTION NOTESSTA 40+00.00, 0.0' LT/RT "SOUTHERN ENTRY ROAD"BEGIN PROPOSED ROADWAY IMPROVEMENTS(SEE TYPICAL SECTION 1/C1.3)FUTURE CONSTRUCTION - INSTALL DRY UTILITY TRENCH10' FROM EDGE OF ROADWAY. SEE DETAIL 3/C1.31STA 40+00, BEGIN IMPROVEMENTSSTA 40+00BEGIN IMPROVEMENTS 1PROPERTY BOUNDARYPROPERTY BOUNDARY 22THORNBURGH RESORT SOUTHERN ROAD (BLM) SEE SOUTHERN ROAD(PRIVATE) PLANS 06/17/2021Exhibit 37 Page 5 of 7Exhibit 126 Page 167 of 204 314031453150315531603165317031753180318531903140314531503155316031653170317531803185319048+5049+0050+0051+0052+0053+0054+0055+0056+0057+0058+0048+5049+0049+5050+0050+5051+0051+5052+0052+5053+0053+5054+0054+5055+0055+5056+0056+5057+0057+5058+003175.73177.133175.53176.853175.23176.573175.03176.293174.73176.023174.43175.743174.13175.463173.93175.193173.73174.913173.53174.633173.33174.363173.03174.083172.83173.803172.53173.533172.33173.25 3172.13173.04 3172.03172.86 3171.83172.69 3171.63172.51 3171.43172.34 3171.23172.16 3171.03171.99 3170.93171.81 3170.73171.64 3170.53171.46 3170.53171.31 3170.43171.22 3170.43171.21 3170.43171.27 3170.43171.39 3170.43171.59 3170.63171.84 3170.83172.09 3171.23172.34 3171.73172.59 3172.23172.84 3172.23173.05 -0.7%1.0%HIGH PT. STA: 58+65.06HIGH PT. ELEV: 3173.39PVI STA: 58+20.07PVI ELEV: 3173.54K:119.96150.00' VCBVCS: 57+45.07 BVCE: 3172.79 LOW PT. STA: 55+42.40 LOW PT. ELEV: 3171.21PVI STA: 55+55.64PVI ELEV: 3170.90K: 88.21150.00' VCBVCS: 54+80.64BVCE: 3171.42 EVCS: 56+30.64EVCE: 3171.65 48+0049+0050+0051+0052+0053+0054+005 5+0056+0057+0 0 58+00317731763175317431733172 3 1 7 1 317 1 31723173CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC3.2SOUTHERN ROAD PLAN & PROFILE OREGONREDMOND180110STA: 48+50 - 58+00RCGRCGMPD1"=40'180110-H-SouthernRd-PP00.dwgMATCH STA: 58+00, SEE SHEET C3.3SOUTHERN ROAD PLAN, STA: 48+50 TO 58+00SCALE: 1" = 40'SOUTHERN ROAD PROFILE, STA: 48+50 TO 58+00SCALE: HORIZONTAL 1" = 40' / VERTICAL 1" = 10'MATCH STA: 48+50, SEE SHEET C3.1 MATCH STA: 58+00, SEE SHEET C3.3 MATCH STA: 48+50, SEE SHEET C3.1EXISTING GROUND @℄ OF SOUTHERN ROADPROPOSED FINISH GRADE @℄ OF SOUTHERN ROADEXISTING GROUND @℄ OF SOUTHERN ROADPROPOSED FINISH GRADE @℄ OF SOUTHERN ROADROAD CONSTRUCTION NOTESCONTINUE ROAD IMPROVEMENTS(SEE TYPICAL SECTION 1/C1.3)STA: 56+04.80 ± "SOUTHERN ENTRY ROAD"INSTALL 44 LF 18'' CMP CULVERT, I.E. IN = 3167.9,S = 0.01 FT/FT MIN.EXCAVATE AS NECESSARY AT INLET OF PIPE TOEXTEND EXISTING DRAINAGE CHANNEL. INSTALL 1 C.Y.CLASS 50 RIP RAP AT INLET AND OUTLET OF PIPEFUTURE CONSTRUCTION - INSTALL DRY UTILITYTRENCH 10' FROM EDGE OF ROADWAY. SEE DETAIL3/C1.311PROPOSED 18'' CULVERT1' MIN COVER TOSUBGRADE2233THORNBURGH RESORT SOUTHERN ROAD (BLM)06/17/2021Exhibit 37 Page 6 of 7Exhibit 126 Page 168 of 204 314531503155316031653170317531803185319031953145315031553160316531703175318031853190319558+0059+0060+0061+0062+0063+0064+0065+0066+0067+0067+7558+0058+5059+0059+5060+0060+5061+0061+5062+0062+5063+0063+5064+0064+5065+0065+5066+0066+5067+0067+50 67+75 3172.23173.333172.33173.383172.13173.393171.93173.343171.83173.283171.43173.223171.73173.153171.83173.093171.93173.033171.93172.973171.93172.903171.83172.843171.73172.723171.53172.533171.23172.28 3170.63171.96 3170.13171.57 3169.73171.13 3169.23170.66 3168.83170.20 3168.23169.74 3167.83169.28 3167.53168.81 3167.23168.35 3166.63167.89 3166.23167.43 3166.03167.00 3165.73166.70 3165.13166.50 3164.63166.42 3164.23166.46 3163.73166.61 3163.63166.83 3163.63167.05 3163.83167.28 3164.53167.44 3166.83166.82 3165.83165.85 -0.3%-1.9%0.9%-3.9%HIGH PT. STA: 58+65.06HIGH PT. ELEV: 3173.39PVI STA: 58+20.07PVI ELEV: 3173.54K:119.96150.00' VCEVCS: 58+95.07EVCE: 3173.35 HIGH PT. STA: 60+91.22HIGH PT. ELEV: 3172.86PVI STA: 61+66.22PVI ELEV: 3172.68K:93.76150.00' VCBVCS: 60+91.22BVCE: 3172.86 EVCS: 62+41.22 EVCE: 3171.29 HIGH PT. STA: 66+96.73HIGH PT. ELEV: 3167.45PVI STA: 67+06.12PVI ELEV: 3167.56K:6.2530.00' VCBVCS: 66+91.12 BVCE: 3167.42 EVCS: 67+21.12 EVCE: 3166.97 LOW PT. STA: 65+54.86 LOW PT. ELEV: 3166.42PVI STA: 65+28.81PVI ELEV: 3165.97K: 54.62150.00' VCBVCS: 64+53.81 BVCE: 3167.36 EVCS: 66+03.81 EVCE: 3166.64 58+0059+0060+0061+0062+0063+0064+0065+0066+0067+0067+6731733173317 2 31 7 1 31 7 0 31 6 9 3168 31 6 7 CIVIL ENGINEERING | SURVEYING | PLANNING 62930 O.B. RILEY ROAD, STE. 100, BEND, OR 97703 PH: (541)389-9351 | FAX: (541)388-5416 WEB: WWW.HWA-INC.ORGC3.3SOUTHERN ROAD PLAN & PROFILE OREGONREDMOND180110STA: 58+00 - ENDRCGRCGMPDVARIES180110-H-SouthernRd-PP00.dwgEXISTING GROUND @℄ OF SOUTHERN ROADCLI N E F A L L S H W Y MATCH STA: 58+00,SEE SHEET C3.2SOUTHERN ROAD PLAN, STA: 58+00 TO ENDSCALE: 1" = 40'SOUTHERN ROAD PROFILE, STA: 58+00 TO ENDSCALE: HORIZONTAL 1" = 40' / VERTICAL 1" = 10'MATCH STA: 58+00, SEE SHEET C3.2 SECTION LINEPROPOSED FINISH GRADE @℄ OF SOUTHERN ROADEXISTING GROUND @℄ OF SOUTHERN ROADPROPOSED FINISH GRADE @℄ OF SOUTHERN ROADCLI N E F A L L S H W Y1C3.3SCALE: 1"=200'SIGHT DISTANCE DETAIL3ROAD CONSTRUCTION NOTESSTA 58+00.00, 0.0' LT/RT "SOUTHERN ENTRY ROAD"CONTINUE PROPOSED IMPROVEMENTS(SEE TYPICAL SECTION 1/C1.3)STA: 59+50.00, 35' RT "SOUTHERN ENTRY ROAD"REMOVE EXISTING CULVERTSTA: 66+55.80 "SOUTHERN ENTRY ROAD"INSTALL 60 LF 18'' CMP CULVERT, I.E. IN = 3163.0S = 0.01 FT/FT MINEXCAVATE EXISTING SOIL AT INLET OF PIPE AS NECESSARY TOPROVIDE POSITIVE DRAINAGE, INSTALL 1 C.Y. CLASS 50 RIP RAPAT INLET AND OUTLET OF PIPEREMOVE 56 LF ± OF EXISTING FENCESTA: 66+79.94, 0.0' LT/RT "SOUTHERN ENTRY ROAD"INSTALL 32' WIDE 4-RAIL PIPE GATE W/ WELDED PIPE PANELSINSTALL US AUTOMATIC PATRIOT 2 SOLAR POWERED GATEOPENER. CONTRACTOR TO COORDINATE GATE CONSTRUCTIONWITH OWNERINSTALL 100 LF ± OF ADDITIONAL FENCING TO MATCH EXISTINGBLM FENCE. CONTRACTOR TO COORDINATE WITH OWNERSTA: 67+05.22 "SOUTHERN ENTRY ROAD"CONSTRUCT 15' WIDE DRIVEWAY APRON (3'' AC / 8'' AGG BASE)STA: 67+22.22, 0.0' LT/RT "SOUTHERN ENTRY ROAD"END PROPOSED IMPROVEMENTSMATCH EXISTING EDGE OF PAVEMENT ELEVATIONFUTURE CONSTRUCTION - INSTALL DRY UTILITY TRENCH 10'FROM EDGE OF ROADWAY.SEE DETAIL 3/C1.381123STA 67+35.21 ℄ OF CLINE FALLS HWY APPROX. EXISTING ACCESS EASEMENT (TYPICAL)R-O- W R-O - WPROPOSED 18'' CULVERT1' MIN COVER TOSUBGRADE24455676678S. CURB RTR40'N. CURB RTR50'69 0 ' 770'99THORNBURGH RESORT SOUTHERN ROAD (BLM)06/17/2021C3.31 DETAIL GRADINGSCALE: 1"=10'2.0'0.3%67.17 FG(MATCH)67.23 FG(MATCH)66.82 FG67.36 FG66.93 FG(MATCH)66.82 FG66.65 FG(MATCH)66.72 FG(MATCH)67.18 FG66.88 FG66.88 FG66.72 FG66.90 FGR = 50'R = 40'1C3.355.6'62.6'2.0'3.1'28.6'39.8'7.3'27.4'34.2'2.0%2.0%2.0%2.0%0.2%0.4%0.4%2.5%17.0'1.2%0.3%Exhibit 37 Page 7 of 7Exhibit 126 Page 169 of 204 Exhibit 38 Page 1 of 4 Exhibit 126 Page 170 of 204 Exhibit 38 Page 2 of 4 Exhibit 126 Page 171 of 204 Exhibit 38 Page 3 of 4 Exhibit 126 Page 172 of 204 Exhibit 38 Page 4 of 4 Exhibit 126 Page 173 of 204 Page 1 – CLCC’s Lot of Record Evidence (247-21-000508-SP) BEFORE THE HEARINGS OFFICER FOR DESCHUTES COUNTY, OREGON File Number: 247-21-000508-SP Applicant/Owner: Central Land and Cattle Company, LLC Attorneys for Applicant/ Liz Fancher Owner: Ken Katzaroff, Schwabe Williamson & Wyatt Proposal: Site Plan Approval of Overnight Lodging Units Subject Property: Tax Lots 7700 and 7800, Map 15-12-00 Planning Staff: Will Groves, Senior Planner LOT OF RECORD Lot of Record Issue raised by Annunziata Gould Ms. Gould’s attorney, Jeff Kleinman, raised a lot of record issue during the County’s review of the Phase A-1 tentative plan. We understand that this is an issue for staff in its review of Central Land’s overnight lodging site plan application. Mr. Kleinman filed copies of deeds recorded at 2021-44813 and 2021-44814 that mistakenly conveyed lots authorized to be created by the Phase A-1 tentative plan from Central Land and Cattle Company, LLC to Pinnacle Utilities, LLC. This mistake has been corrected by Central Land and Pinnacle as follows:1 A. Pinnacle quitclaimed all interest in the land conveyed by 2021-44813 back to Central Land and Cattle Company, LLC. See attached Exhibit A. B. Central Land has caused a correction deed to be recorded for 2021-44814. See attached Exhibit B. The deed corrects the legal description of the land conveyed by it to convey the entire lot of record that includes the land previously conveyed. Pinnacle is now the owner of the entire lot of record. C. The parcel conveyed by Exhibit B is Tax Lot 7801. It was created as a lawful parcel in 1918 by the Exhibit C deed from the State of Oregon to John T. Park, attached, and has 1 Given the fact that Central Land and Cattle Company owns many contiguous lots of record, the deeds would have been allowable as a lot line adjustment between Central Land’s lots of record. The applicant decided, however, to take the less time-consuming route of correcting the legal description of one deed and quitclaiming all interest conveyed by the other. Exhibit 39 Page 1 of 27 Exhibit 126 Page 174 of 204 Page 2 – CLCC’s Lot of Record Evidence (247-21-000508-SP) remained as a lawful parcel since that time. In 1979, a partition was approved that showed Tax Lot 7801 as a separate parcel of land as shown on Exhibit D. The mistaken recording of 2021-44813 and 2021-44814 prior to the recording of the final plat that will create them is not consequential. The recording of deeds does not create new lots or parcels. In LandWatch Lane County v. Lane County (Doughty), __ Or LUBA __ (LUBA No. 2019-044, October 15, 2019), Exhibit E, LUBA held that deeds that conveyed a larger property into different ownerships in 1992 when partition approval was required did not create new parcels. It explained: “[N]ew parcels have not been created because the deed creating the parcels occurred after land us laws regulating land division became applicable. ORS 92.017 provides that “[a] lot or parcel lawfully created shall remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is further divided, as provided by law. (Emphasis added.) In the context of land use law, division by law requires a subdivision, partition or, prior to the applicability of the land division regulations, a deed conveyance.” Respectfully submitted this 31st day of August 2021. Liz Fancher ________________________________________________ Liz Fancher, Attorney for Central Land and Cattle Co, LLC 2465 NW Sacagawea Lane Bend, OR 97703 541-385-3067 (telephone) liz@lizfancher.com (e-mail) Exhibit 39 Page 2 of 27 Exhibit 126 Page 175 of 204 Exhibit AExhibit 39 Page 3 of 27 Exhibit 126 Page 176 of 204 Exhibit AExhibit 39 Page 4 of 27 Exhibit 126 Page 177 of 204 Exhibit AExhibit 39 Page 5 of 27 Exhibit 126 Page 178 of 204 Exhibit 39 Page 6 of 27 Exhibit 126 Page 179 of 204 Exhibit 39 Page 7 of 27 Exhibit 126 Page 180 of 204 Exhibit 39 Page 8 of 27 Exhibit 126 Page 181 of 204 Exhibit 39 Page 9 of 27 Exhibit 126 Page 182 of 204 Exhibit 39 Page 10 of 27 Exhibit 126 Page 183 of 204 Exhibit 39 Page 11 of 27 Exhibit 126 Page 184 of 204 Exhibit 39 Page 12 of 27 Exhibit 126 Page 185 of 204 Exhibit 39 Page 13 of 27 Exhibit 126 Page 186 of 204 No. 43441ZL a5 STATE OF OREGON , FILED M`AY 23 ,' 1918 , TO AT 1 : 15 0-"CLOCK' P.M..,' JOHN T. PARK. J. H. HANER , COUNTY CLERK . APPLICATION N0. T. I .P. 101 STATE OF OREGON DEED No . 513 KNOW ALL MEN BY THESE PRESENTS : THAT , FOR AND IN CONSIDERATION 'OF THE PAYMENT OF THE ' L' IEN FOR THE CONSTRUCTI N OF THE IRRIGATION SYSTEM AND THE RECLAMATION , CULTIVATION AND SETTLEMENT 'UPON THE LANDS HEREIN DESCRIBED , AND IN COMPLIANCE WITH THE LAWS OF THE UNITED STATES AND OF THE STATE 0 OREGON RELATING TO THE RECLAMATION OF DESERT LANDS , THE STATE OF OREGON DOES HEREBY -REM IS , RELEASE AND FOREVER QUITCLAIMUNTO JOHN T. PARK ALL ITS RIGHT, TITLE AND iNTEREST 'IN AND TO THE FOtLLOWING DESCRIBED LANDS , SITUATED IN DESCHUTES COUNTY , STATE OF OREGON , TO-WIT : SOUITH:EAST QUARTER OF THIE SOUTHIEAST QUARTER ( SE4 SE-4) , SECTION 29 , TOWNSHIP' 1-5 SOUTH , RANGE 12 EAST , W.M. , CONTAINING 40 ACRES , MORE OR LESS.i SUBJECT , HOWEVER TO RIGHTS OF WAY FOR DITCHES , CANALS AND -RESERVOIR SITES FOR, IRRIDATION PURPOSES., CONSTRUCTED OR WHICH MAY BE CONSTRUCTED BY AUTHORITY OF THE.; UN.ITED. STATE$ OR OTHERWISE , AND ALSO THE EASEMENT OF A RIGHT OF WAY FOR ALL DITCHE NECESSARY FOR THE PROPER, QISTR18UTION OF WATER FOR SUCH PURPOSES , WHICH RIGHTS OF WAY Fog THE CONSTRUCTION . AND OPEFATION OF MAIN CANALS AND MAIN LATERALS , SHALL BE EQUAL TO-' THE AC UAL WIDTH OF SUCH CANALS OR LATERALS AT THEIR BASE FROM TOE TO TOE OF THE EMBANKMENT OF THE SAME , TOGETHER :WITH A ; STRIP OF LAND ALONG ONE SIDE OF EACH CANAL OR LATERAL OR ADJACENT THERETO NOT -TO EXCEED FIFTY FEET IN WIDTH ALONG THE MAIN CANALS , 'NOR TO EXCEED THIRTY FEE - IN EEiNWIDTHALONGTHEMAINLATERALS , WHICH RIGHTS OF WAY ARE HEREBY EXPRESSLY RESERVED• TO HAVE AND TO HOLD THE SAME , UNTO THE SAID JOHN T. PARK .HI,S HEIRS AND ASSIGNS FOREVER . WITNESS THE SEAL AND SIGNATURE OF THE DESERT LAND BOARD AFFIXED THIS 30TH DAY OF APRIL , 1918. I DESERT LAND BOARD SEAL ) DESERT LAND BOARD, ATTEST : JOHN H. LEWIS BY JAMES WITH.YCOMBE STATE ENGINEER , SECRETARY GOVERNOR , CHAIRMAN RECORDED IN STATE RECORD OF CARE,Y ACT DEEDS , BOOK N0. 2 , PAGE 442 f , Exhibit C Exhibit 39 Page 14 of 27 Exhibit 126 Page 187 of 204 Exhibit DExhibit 39 Page 15 of 27Exhibit 126 Page 188 of 204 Exhibit DExhibit 39 Page 16 of 27Exhibit 126 Page 189 of 204 1 governed by the provisions of ORS 197.850. Page2 Exhibit EExhibit 39 Page 18 of 27 Exhibit 126 Page 191 of 204 1 Opinion by Rudd. 2 NATURE OF THE DECISION 3 Petitioner challenges a board of county commissioners' approval of a 4 replacement dwelling in an exclusive farm use zone. 5 MOTION TO INTERVENE 6 Duane Doughty and Tonya Doughty (intervenors), the applicants below, 7 move to intervene on the side of the respondent. No party opposes the motion, 8 and it is granted. 9 FACTS 10 Intervenors sought county approval of a replacement dwelling on a 10.33- 11 acre property zoned Exclusive Farm Use (E-40) and designated tax lot 1400 12 (referred to herein as tax lot 1400). ORS 215.213(1)(q) provides that, "[s]ubject 13 to section 2, chapter 462, Oregon Laws 2013, alteration, restoration or 14 replacement of a lawfully established dwelling" is allowed on land zoned for 15 exclusive farm use. On April 4, 2018, the planning director approved intervenors' 16 application for a replacement dwelling on tax lot 1400. On April 16, 2018, 17 petitioner appealed the planning director's decision to the hearings officer. 18 Petitioner alleged that the replacement dwelling approval was improper because 19 tax lot 1400 is not a legal parcel. 20 The parties do not dispute the history of dwellings on the land area that 21 comprises tax lot 1400. The land now designated tax lot 1400 was formerly part 22 of a larger unit of land and, in the early 1900s, a dwelling was constructed on the Page 3 Exhibit EExhibit 39 Page 19 of 27 Exhibit 126 Page 192 of 204 1 larger unit of land in the area now designated tax lot 1400. Subsequent dwellings 2 have been placed in the same location following fires in the 1950s and 1970s, 3 and intervenors' proposed dwelling is sited in the same location. 4 Intervenors, the county and petitioner also agree that tax lot 1400's land 5 area is part of the area of land described in a 1943 deed (the larger property). In 6 the years following 1943, the larger property was carved up by creation of a road 7 in 1956, at some point by exception of a small cemetery parcel, and in 1992, by 8 a deed conveyance of the area now designated tax lot 1401. The parties disagree, 9 however, as to the legal significance or import of the 1992 deed conveyance.1 10 Although Lane County land division regulations became applicable to the 11 larger property in 1975, the 1992 conveyance did not comply with the applicable 12 land division regulations. The 1992 conveyance divided the remaining property 13 (remaining after the road creation and conveyance of the cemetery parcel) into 14 tax lots 1400 and 1401 in violation of applicable land use laws. Petitioner argued 15 to the hearings officer that in the absence of legal lot creation, the replacement 16 dwelling was improperly approved. Intervenors argued that despite the 1992 1 7 conveyance's failure to comply with applicable laws, a replacement dwelling was 18 properly approved on tax lot 1400. 1 The 1992 deed describes the conveyed property as Tracts I and IL Tract I is designated tax lot 501 and Tract II is designated tax lot 1401. Intervenors' consultant advised the county that tax lot 501 was a separate, existing lot at the time of the 1992 deed. Record 133. Page4 Exhibit EExhibit 39 Page 20 of 27 Exhibit 126 Page 193 of 204 1 On November 7, 2018, the hearings officer issued a decision denying 2 petitioner's appeal, concluding that: 3 "[A]n illegal division of a lawfully created parcel does not negate 4 the lawful status of that parcel but rather voids the development 5 potential, for land use purposes, of the newly created parcel. No new 6 parcel is created because the division is inconsistent with applicable 7 land division law." Record 18. 8 On November 19, 2018, petitioner appealed the hearings officer's decision to the 9 board of commissioners. On November 26, 2018, the hearings officer, after 10 reviewing the appeal, affirmed his November 7, 2018 decision. The planning 11 director recommended that the board of commissioners conduct an on the record 12 hearing on the appeal. 13 On January 29, 2019, the board of commissioners reviewed the matter and 14 elected to conduct an on the record hearing on the appeal. On February 26, 2019, 15 the board of commissioners heard arguments and reviewed the hearings officer's 16 decision. On March 12, 2019, the board adopted the hearings officer's decision 17 as supplemented and modified by its findings in support of its order. 18 This appeal followed. 19 STANDARD OF REVIEW 20 Our review of the county's interpretation of state law is subject to ORS 21 197.835(9)(a)(D) and we will reverse or remand the land use decision if the city 22 improperly construed applicable law. In construing the law, we will consider the 23 text, context and legislative history of the law at issue in order to determine the Page 5 Exhibit EExhibit 39 Page 21 of 27 Exhibit 126 Page 194 of 204 1 intent of the enacting legislature. PGE v. Bureau of Labor and Industries, 317 Or 2 606, 610-12, 859 P2d 1143 (1993); State v. Gaines, 346 Or 160, 171-172, 206 3 P3d 1042 (2009). 4 FIRST ASSIGNMENT OF ERROR 5 Petitioner's sole assignment of error is that the county improperly 6 approved intervenors' replacement dwelling because it will be sited on an 7 unlawful parcel. For the reasons we explain below, we agree with petitioner. 8 A parcel is a unit of land created through the partition of land into three or 9 fewer units of land within a calendar year. ORS 92.010(6), (9); ORS 215.010. A 10 lot is a unit of land created through the subdivision of property into four or more 11 units ofland within a calendar year. ORS 92.010(4), (16); ORS 215.010. Because 12 the property composed of tax lots 1400 and 1401 as currently configured resulted 13 from a deed that resulted in two units of land, we will refer to them as parcels. 14 ORS 215.213 requires that the replacement dwelling be located on the 15 same parcel as the dwelling being replaced. ORS 215.213(1)(q); Or Laws 2013, 16 ch 462, § 2(4)(b)(A).2 We have previously held that references in ORS chapter 2 Oregon Laws 2013, chapter 462, section 2 was not codified into the Oregon Revised Statutes, and for that reason we cite the statute as it appears in the session laws. Section 2 of the 2013 statute will be automatically repealed on January 2, 2024. Or Laws 2013, ch 462, § 11. Section 2(4)(b)(A) of 2013 Oregon Laws, chapter 462 provides: "The replacement dwelling [m]ay be sited on any part of the same lot or parcel." (Emphasis added.) Page 6 Exhibit EExhibit 39 Page 22 of 27 Exhibit 126 Page 195 of 204 1 215 to parcels relate to lawfully created parcels. Reeves v. Yamhill County, 53 Or 2 LUBA 4, 11 (2006) ("when the word 'parcel' is used in ORS Chapter 215, the 3 parcel must be a lawfully created parcel"); Friends of Yamhill County v. Yamhill 4 County, 229 Or App 188, 192, 211 P3d 297 (2009) (explaining relationship 5 between parcel as defined in ORS 215.010 and "lawful creation"). We therefore 6 conclude that the parcel on which a proposed replacement dwelling is proposed 7 to be sited must have been lawfully created. 8 ORS 215.010 provides that for purposes of ORS chapter 215, a lawfully 9 established parcel has the definition provided in ORS 92.010(3), which provides: 10 "(a) 'Lawfully established unit of land' means: 11 12 13 14 15 16 17 18 19 "(A) A lot or parcel created pursuant to ORS 92.010 to 92.192; or "(B) Another unit of land created: "(i) In compliance with all applicable planning, zoning and subdivision or partition ordinances and regulations; or "(ii) By deed or land sales contract, if there were no applicable planning, zoning or subdivision or partition ordinances or regulations. 20 "(b) 'Lawfully established unit of land' does not mean a unit of 21 land created solely to establish a separate tax account." 22 A lawful lot or parcel may therefore be created through the subdivision or 23 partition process, or through a deed or land sales contract describing the area of Page 7 Exhibit EExhibit 39 Page 23 of 27 Exhibit 126 Page 196 of 204 1 land as a unit before planning, zoning or subdivision or partition ordinances or 2 regulations became applicable. 3 The boundaries of tax lot 1400, as currently configured, were not 4 established through any of the lawful mechanisms described immediately above. 5 The hearings officer nonetheless concluded that the unlawful division of the 6 larger property resulted in tax lot 1401, the unlawful parcel, and tax lot 1400, the 7 remainder or parent parcel. Under the hearings officer's view of the law, tax lot 8 1401 is unlawful and a replacement dwelling could not be approved on tax lot 9 1401, but tax lot 1400 is a remainder or parent parcel and remains eligible for a 10 replacement dwelling. Petitioner cites Hartmann v. Washington County, 36 Or 11 LUBA 442, ajf'd, 164 Or App 177, 991 P2d 65 (1999), for the proposition that 12 an illegal land division creates two new, undevelopable units of land rather than 13 an undevelopable lot and a remainder lot. We agree that an unlawful division of 14 land does not result in the creation of a lawful remainder. 15 The hearings officer in Hartmann concluded that the proposed site of a 16 nonfarm dwelling was a parcel created by a 1994 partition. Because OAR 660- 17 033-0130(4)(a) required that the site of the proposed dwelling be a lot or parcel 18 created before January 1, 1993, and the proposed dwelling site was a parcel 19 created by the lawful partition after the operative January 1, 1993 date, the 20 application for a nonfarm dwelling was properly denied. We affirmed the 21 hearings officer's determination that the 1994 partition established new, lawful 22 lots as opposed to a new lawful lot and a remainder or parent parcel. Page 8 Exhibit EExhibit 39 Page 24 of 27 Exhibit 126 Page 197 of 204 1 Here, in 1992, deeds conveyed portions of the larger property into different 2 ownerships. However, new parcels have not been created because the deed 3 creating the parcels occurred after land use laws regulating land division became 4 applicable. ORS 92.017 provides that "[a] lot or parcel lawfully created shall 5 remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot 6 or parcel is further divided, as provided by law." (Emphasis added.) In the context 7 of land use law, division by law requires a subdivision, partition or, prior to the 8 applicability of the land division regulations, a deed conveyance. We conclude 9 that tax lot 1400, standing alone, is an unlawfully created parcel and a 10 replacement dwelling may not be authorized on tax lot 1400. 11 Our recent decision in Landwatch Lane County v. Lane County, _ Or 12 LUBA_ (LUBA No 2018-077, Feb 6, 2019), aff'd, 297 Or App 582, 442 P3d 13 245, rev den,_ Or_. _ (2019) (Kasie) is consistent with this result. In Kasie, 14 we reviewed a decision approving a forest template dwelling pursuant to ORS 15 215.750(l)(a). The ORS 215.750(1)(a) test requires placing a 160-acre template 16 on the property on which the potential dwelling will be placed and then 1 7 determining whether there are at least three other lots or parcels "that existed on 18 January 1, 1993" within the template area. (Emphasis added.) In Kasie, one of 19 the areas ofland counted as a parcel within the template area was created in 1984. 20 In 1992, part of the area of land legally created in 1984 was conveyed without 21 complying with applicable land division laws. The hearings officer relied on the 22 provision in ORS 92.017 that "[a] lot or parcel lawfully created shall remain a Page 9 Exhibit EExhibit 39 Page 25 of 27 Exhibit 126 Page 198 of 204 1 discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel 2 is further divided as provided by law" and concluded that for purposes of 3 applying the template test, the appropriate consideration was the 1984 4 configuration of the property and not the unlawful configuration resulting from 5 the 1994 conveyance. We agreed. 6 Intervenors argue that Kasie controls in this case and requires we affirm 7 the hearings officer's decision that tax lot 1400 is a lawful parcel for purposes of 8 a replacement dwelling approval. We conclude that Kasie is legally 9 distinguishable. In Kasie, the legal issue was whether a parcel "existed on IO January 1, 1993" for purposes of the template test. We concluded that an 11 underlying parcel that had been unlawfully divided "existed on January 1, 1993." 12 We limited our holding to that narrow legal issue. 13 Differently, here, the issue is the current land use status of tax lot 1400. 14 Contrary to the hearings officer's conclusion, the 1992 conveyance did not create 15 one compliant, developable "remainder" parcel designated tax lot 1400 and one 16 unlawful, undevelopable parcel designated tax lot 1401. Such a reading would in 17 fact allow the creation of a new lot in violation of applicable land use laws, with 18 the reduced size parcel designated the parent or remainder. 19 The Supreme Court has held that an unauthorized division ofland does not 20 create legal lots of record and that a land unit resulting from an unlawful division 21 does not qualify for a conditional use permit where the applicable land use code 22 requires, as a condition precedent to a conditional use permit, the existence of a Page 10 Exhibit EExhibit 39 Page 26 of 27 Exhibit 126 Page 199 of 204 1 legal lot of record. Yamhill Countyv. Lundwick, 294 Or 778,663 P3d 398 (1983). 2 Here, a legal parcel is a condition precedent to issuance of a replacement dwelling 3 permit. Because the replacement dwelling was not approved on a lawful unit of 4 land, the county erred in approving intervenors' application. 5 DISPOSITION 6 We will reverse a land use decision when the decision "violates a provision 7 of applicable law and is prohibited as a matter of law." OAR 661-010- 8 0071(1)(c); ORS 197.835(9)(a)(D). ORS 215.213(1)(q) requires that the 9 replacement dwelling be located on a lawful parcel. 3 The replacement dwelling 10 is not proposed to be located on a lawful parcel. We conclude that the decision is 11 prohibited as a matter oflaw. Accordingly, the appropriate disposition is reversal. 12 The county's decision is reversed. 3 Seen 2. Page 11 Exhibit EExhibit 39 Page 27 of 27 Exhibit 126 Page 200 of 204 Exhibit 40 Page 1 of 1 Exhibit 126 Page 201 of 204 OREGON RULES OF APPELLATE PROCEDURE SUPREME COURT and COURT OF APPEALS Permanent Amendments Effective January 1, 2021 Also includes: x CJO 20-055 / CJO 20-06, Order Adopting Temporary Amendments effective January 1, 2021, through December 31, 2022 x CJO 21-026 / CJO 21-05, Order Adopting Temporary Amendments effective August 1, 2021, through December 31, 2022 x CJO 21-027, Order Adopting Temporary Amendments effective August 1, 2021 through December 31, 2022 x Editorial corrections to ORAP 2.05 nn 5, 7, and 8 and ORAP 4.20(1)(a) (July 14, 2021) OJD Publications Section 1163 State Street Salem, Oregon 97301-2563 ORAP.committee@ojd.state.or.us https://www.courts.oregon.gov/courts/appellate/rules/Pages/orap.aspx Version date: August 11, 2021 This document has no copyright and may be reproduced. Exhibit 41 Page 1 of 3 Exhibit 126 Page 202 of 204 125 Chapter 9 Rule 9.07 CRITERIA FOR GRANTING DISCRETIONARY REVIEW The Supreme Court considers the items set out below to be relevant to the decision whether to grant discretionary review. These criteria are published to inform and assist the bar and the public. They are neither exclusive nor binding. The court retains the inherent authority to allow or deny any petition for review. A petition for review may refer to those items that are relevant to the case and need not address each listed item.1 (1) Whether the case presents a significant issue of law. A significant issue of law may include, for example: (a) The interpretation of a constitutional provision, (b) The interpretation of a statute, (c) The constitutionality of a statute, (d) The legality of an important governmental action, (e) The use or effect of a rule of trial court procedure, (f) The jurisdiction of the Court of Appeals or the trial court, or (g) The application or proposed modification of a principle of common law. (2) Whether the issue or a similar issue arises often. (3) Whether many people are affected by the decision in the case. Whether the consequence of the decision is important to the public, even if the issue may not arise often. (4) Whether the legal issue is an issue of state law. (5) Whether the issue is one of first impression for the Supreme Court. (6) Whether the same or a related issue is pending before the Supreme Court. (7) Whether the legal issue is properly preserved, and whether the case is free from factual disputes or procedural obstacles that might prevent the Supreme Court from reaching the legal issue. (8) Whether the record does, in fact, present the desired issue. (9) Whether present case law is inconsistent (among Court of Appeals cases, between Exhibit 41 Page 2 of 3 Exhibit 126 Page 203 of 204 126 Chapter 9 Court of Appeals cases and Supreme Court cases, or among Supreme Court cases). (10) Whether it appears that trial courts or administrative agencies are inconsistent orconfused in ruling on the issue that the case presents. (11) Whether the Court of Appeals published a written opinion. (12) Whether the Court of Appeals was divided on the case. (13) Whether the Court of Appeals decided the case en banc. (14) Whether the Court of Appeals decision appears to be wrong. If the decisionappears to be wrong: (a) Whether the error results in a serious or irreversible injustice or in adistortion or misapplication of a legal principle. (b) Whether the error can be corrected by another branch of government, suchas by legislation or rulemaking. (15) Whether the issues are well presented in the briefs. (16) Whether an amicus curiae has appeared, or is available to advise the court. _________ 1 A party may include in an appendix to a petition for review materials in support of criteria under this rule that are not otherwise part of the record on appeal, such as materials demonstrating how the case may affect persons other than the parties to the immediate case or how the case is important to the public. Rule 9.10 RESPONSE TO PETITION FOR REVIEW (1) A party to an appeal or judicial review in the Court of Appeals may, but need not,file a response to a petition for review. The response may include the party's contingent request for review of any question properly before the Court of Appeals in the event that the court grants the petition for review. In the absence of a response, the party's brief in the Court of Appeals will be considered as the response. (2) A response to a petition for review is due within 14 days after the petition forreview is filed. (3) A response shall be in the form of a brief prepared in conformity with ORAP 5.05 and ORAP 5.35. For purposes of ORAP 5.05, the response must not exceed 5,000 words or (if the certification under ORAP 5.05(2)(d) certifies that the preparer does not have access to a word-processing system that provides a word count) 15 pages. Any party filing a response shall Exhibit 41 Page 3 of 3 Exhibit 126 Page 204 of 204 PO Box 1597, Redmond, OR 97756 ThornburghResort.com November 19, 2021 Hearing Officer Gregory Frank c/o Senior Planner Angie Brewer Deschutes County Community Development Dear Hearing Officer Frank, During the public hearing numerous parties provided verbal testimony pertaining to the lack of water, how irrigation districts have reduced the allocations in this area because of drought, how farmers in Madras have been dramatically impacted by the lack of water. We heard that we don’t need more golf courses, how obscene it is that we would use water to irrigate more golf courses, how stupid it is to do so, etc.. We heard from Mr. Arnold that the irrigation water on his 10 acre MUA-10 zoned property has been reduced as it has for Mrs. Strauss who has been farming a part of her 4.5 acre property in the area for some years. One message being voiced is that farming is good while development of a resort community is bad, obscene or worse…. At the same time, Mr. Kleinman tells us, repeatedly, that a delicate balance was struck in the resorts FWMP that is vital to protecting the fish in Whychus Creek1. While none of this has anything whatsoever to do with the issues before you I wanted to put a little context to the comments. My family has farmed in Central Oregon for 90 years, beginning in 1931. My great grandfather, then my grandparents had 300+ acres they irrigated with Central Oregon Irrigation District (COID) irrigation water. In 1953 they bought the Cline Buttes land along with the grazing rights to 30,000 acres of BLM land surrounding it, for their ranching operations. Thornburgh Resort Company purchased their Cline Buttes land in 2004 then added several other parcels to it. We currently own 1940 acres and lease another 400 acres on Cline Buttes, all zoned for exclusive farm use (EFU). Farming is permitted outright on this nearly 2400 acres. No land use actions are required to farm the land, nor are any wildlife mitigation needed. We could remove all trees, destroy all rock outcrops, and burn all vegetation as needed. In so doing we would have no obligation to account for the destruction to any wildlife habitat or the wildlife itself nor any responsibility to mitigate for any impact to wildlife. For irrigation we would use our permit for 2,129 af of water rights or other permits we own or control providing another 1,250+/- acre feet of water2. See Exhibit 24. Similarly, using our water for farming requires no fish or wildlife mitigation, nor would there be any obligation to account for impacts to springs, or seeps. ODFW would have no say whatsoever and we would have no responsibility to mitigate for any thermal impact, or flow reduction in Whychus Creek, the Deschutes River or any other body of water, except as required by OWRD. In sum, if we clear the same land, and use the same water to irrigate the fields it creates no obligation to mitigate for any impacts whatsoever whether to land, wildlife, fish, or water beyond OWRD mitigation. There is certainly no obligation to ensure there would 1 This “delicate balance” is the FWMP that was developed to show Thornburgh met the no net loss standard of the destination resort code. 2 This 1250 acre feet is certificated and requires no OWRD mitigation. be No Net Loss from any farming actions, all of which are permitted outright. There would be no “delicate balance” required. The ironic thing is that using our land and water for farming creates greater impacts than our quasi- municipal water uses on the resort will create. Farming uses water over the 180-200 day irrigation season that occurs in the summer. This extracts 100% of the water at the very time that flows in the middle Deschutes River are the lowest and water temperatures are the highest. This is the period ODFW was most concerned with and was the very period the FWMP was designed to provide extra flow during. See 2008 ODFW letter. See Exhibit 36. The attached table #1, prepared by Newton during the extensive FWMP debate, show annual water use, in inches and % for 3 common crops. For the month of June, July and August they use 60.17% of their annual water needed. Table #2 compares watering crops to quasi- municipal use. During the same summertime period of June, July, and August, QM uses 45% of the total annual water needed, or more than 25% less during the critical summer period as compared to the ag use as noted above. By that standard alone the resort creates 25% less impact at the critical summertime period than it would if we were irrigating crops. See: Documents for Record, November 12, 2021. But the impacts are really far, far less than that. Our water rights permit, G-17036 limits the volume of water we can use on irrigation to 3.0 acre feet per acre of irrigated land3. It further restricts the amount of water we can use on the golf course to 2.24 acre feet per acre. See: The end of Exhibit 29, Thornburgh Water Rights Permit. By comparison the local irrigation districts allow far greater use per acre as shown in the Irrigation District materials attached, and summarized below: § Tumalo Irrigation District: 6.05 af/acre § Central Oregon Irrigation District: 4.57 af/acre § Swalley Irrigation District: 4.43 af/acre § Arnold Irrigation District: 4.38 af/acre For perspective customers of Tumalo Irrigation District, (which includes Gould, Arnold and Strauss) can use 6.05 af/acre of water on their land versus the 2.24 af/ac Thornburgh can use on its golf course. That is 270% more. See Documents for Record, November 12, 2021. The very people who complain that irrigating a golf course is obscene, use nearly 3 times the amount of water per acre on their land than allowed for Thornburgh golf. The other water rights we own or control (See Exhibit 24) have duty rates of roughly 4 acre feet per acre4 which is still 1.8 times what we are allocated for golf – meaning water we would otherwise be allowed to use is saved because we cannot use it. Numerous parties complained they didn’t get their full water allocation, including Mr. Arnold and Mrs. Strauss. As noted above both are on Tumalo Irrigation, which according to the district this summer limited water to 70% of the allocation, or 4.23 af/acre. That is still 1.9 times Thornburghs golf course allocation of 2.24 af/acre. We are able to do this because of the super efficient irrigation systems we will deploy as well as our course layout and design. As we have shown in numerous land us proceedings we are very sensitive to the fact that we are in the high desert. We are focused on maintaining the native elegance of the land, and doing so in a way that minimizes impacts. This was recognized by Commissioner Adair during the golf course review. Her comments about Thornburgh are paraphrased as: 3 This is the duty rate, which is the amount of water use on a per acre basis that a permit allows, which can be limited by the time of year, or the type of use. 4 The Tumalo duty rate is over 50% more than Thornburgh’s other rights. ‘… they really seemed like they were very aware of water even back when they were planning it and with the concept that they weren’t planning on like a green soaked course. That isn’t what I was reading in all the documents. They were aware that we are in a high desert and you know water is gold so you can’t waste it’. See: Exhibit 26, BOCC Golf Course Hearing. August 12, 2020. This is not a quote but is paraphrased. There were lots of comments about drought conditions, how climate change is creating water shortages. The NOAA materials we submitted show precipitation levels to be relatively stable for Deschutes County since 1895 (125 years). See: Exhibit 30 NOAA Precipitation Data. The driest year was 1949 with 14.63 inches of precipitation while the wettest was 1996 with 38.03 inches. Looking at the annual precipitation for the last 20 years yields the following results: § 2001-2010 saw average precipitation of 21.72” annually, § 2011-2020 was slightly higher at 21.80” annually. Many comments discuss the changing conditions, how everything was so much better when the resort was approved, and as a result we need new studies, now applications, etc…. As shown by NOAA Deschutes County experienced slightly higher precipitation in the last 10 years than the previous 10, the period when Thornburgh received CMP approval. There are lots of comments about how farmers are suffering, specifically those in Madras. The perception of the resort’s opponents seems to be that their water issues are caused by climate change and water use, and that Thornburgh will exacerbate that problem. We submitted several articles that discuss the problem facing the farmers is the spotted frog, and the recent Habitat Conservation Plan that was forced upon the water districts because of federal listing of the frog. The August 11, 2021 article titled, “Farmer explore changing frog rules” notes that the irrigation districts are having to reserve 36,000 acre feet of water for the frog, and if that was not the case farmers in Madras, that are a part of the North Unit Irrigation District would have received 80% more water. See Exhibit 31. During Thornburgh’s golf course site plan the commissioners discussed people’s perception regarding water shortages. Deschutes County Commissioner Phil Henderson observed: ‘that’s everybody’s conclusion is we’re in a water shortage and therefore we shouldn’t do golf courses in a water shortage basically, but that kind of even goes back to that concept of a drought. We declared a drought because Wickiup was not full to serve Madras farmers at North Unit (North unit Irrigation District-NUID). It wasn’t because we had a water shortage right here right now, it was up in the valley, it was a surface water shortage, not a groundwater [shortage]. So this [resort water] is a groundwater source I think is a big part of this so, it’s different’. See: Exhibit 26. The issue with North Unit irrigation water is the issue discussed in the article we have submitted. The irony is that the farmers in NUID are the most efficient. As noted in the 12/17 OPB article, “Frogs, Fish and Farmers…” NUID is highly efficient, because it has to be. And while NUID doesn’t have water to spare another district, COID does because it has the oldest water rights. The KTVZ article quotes Todd Heisler, Water Director at Landwatch who notes that: “The current shortage is driven by an antiquated, innefienct, and wasteful irrigation system. The water users with the first priority to te river are also the most inefficient.” See: Exhibit 34. In many areas served by the irrigation districts the average acreages served by the districts are getting smaller, and the use of the water is for less real “farming.” Paul Dewey, former Gould attorney, and founder of Landwatch refers to the owners of these small parcels as the “two llamas and a Prius farmer” who don’t know how to conserve water yet use their farming losses as a tax write off. See: Exhibit 33, The Deschutes Basin’s Last Great Problem. They don’t have the knowledge to conserve, nor the financial incentive to do so. As a result the inneficency continues. As noted above Tumalo gets 6.05 acre feet/acre, much of which is distributed to the farmers Paul Dewey talks about, while super efficient systems like Thornburgh will employ allow us to get by with a fraction of the water. In many cases, the people who complain about an issue are the very ones who contribute to its cause, yet will play no role in its solution. That is the situation that exists in this case today. Several of the articles discuss the health of the upper river, between Sunriver and Wickipu reservoir, and how that is the critical area now. It should be noted that Thornburgh has little to no impact on that area, yet has already taken concrete steps to improve the river health in that area. Thornburgh has provided 200 af of water that we have left in the river, all the way from south of LaPine to Lake Billy Chinook, a stretch that includes the area that numerous parties expressed deep concern over in the articles provided. See: Exhibit 35, Letter from OWRD re: LeBeau Instream Lease, One other comment pertains to a cattle guard Ms. Gould thinks needs to be installed on BLM lands. Prior to construction of the road we submitted construction drawings to the BLM after which we had on site meetings with BLM staff. From those meetings we amended the road location to preserve a rock ridge, and prepared new construction drawings. The new drawings were provided to BLM in accordance with our agreement with the BLM, who approved them. The approved drawings (See: Exhibit 37) show the entrance road onto Cline Falls Highway. There is no cattle guard at this location, rather there is a double gate shown that has been installed. Cattle guards are used in locations where you do not want to place gates, yet do want to keep cattle from going out. Installing gates eliminates the need for cattle guards. The old access from BLM land onto Cline Falls Hwy. has the old, existing cattle guard in place. In this location the BLM placed gates over the cattle guard to prohibit vehicular access. As I noted above, nothing in this letter has bearing on the issues before you. Rather it was my intent to provide you some factual context in light of the overwhelming emotional testimony, shy on facts that you have received. I appreciate you taking the time to read and review this material. Sincerely, Kameron DeLashmutt Thornburgh Resort