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HomeMy WebLinkAbout2021-11-19 K Katzaroff Open Record Submittal 247-21-000508-SP, 849-ASchwabe RECEIVED Nov I g 2021 Deschutes countyoDD Kenneth Katzaroff Admitted in Washington and Oregon T:206-405-1985 C:206-755-2011 KKatzar off @S C HWA B E. com WILLIAMSON & WYATT, November 19,2021 Vra e-ntlrl Hearings Officer Frank c/o Angie Brewer, Senior Planner Deschutes County Community Development I l7 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. I ROCC 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. Fufther, 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 (fulltranscript in relevant part included as Exhibit 26), the BOCC address Condition 10: Will Groves: That takes us to number l0 and this has to do if the proposal complies with final master plan condition # l0 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 resoft holds a permit which hasn't been cancelled that the VancouvercenterlT00WashingtonStreetlSuiteT0llVancouver,WAl93660lM360-694-75511F360-693-5574lschwabe.com Hearings Officer Frank November 19,2021 Page 2 pennit 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 forthe 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. Pattv Adair: So we'll quote you on that - outside our level of concern. Hearings Officer Frank November 19,2021 Page 3 Anthonv 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 shortase risht here risht now. it was un in vallev- it was a surface water not a sroundwater 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. Phit derson: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. Hearings Officer Frank November 19,2021 Page 4 2. Apnellant's Continued Arguments Related to Condition l0 and Condition 38 Appellant Gould submits substantial sections of the FWMP (and the entire document) in an attempt to argue that Condition l0 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.r This hearings officer should similarly reject this argument. Fufther, 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 l0 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 I l. 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 l0 and 38 to respond to Appellant Gould's regarding the meaning of these conditions is included as Exhibit 29. 3. Deschutes Counfv Precipitation. Drought. and Water Appellant Gould claims that drought and climate change conditions have adversely affected the area. To suppoft 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 I Corrtrast this with Thornburgh's Answering Brief, Exhibit 16, which carried the day 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 lrrigation 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 clairns 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 comrnents 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, localnews station KTVZ reporled 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 l7 requires that the resort meet all fire protection requirements of the Redmond Fire Department. The Redmond Fire Department submitted comments on June 21,2021that all requirements were met. 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 12,2027,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 Arsument COLW's argued that the finding of the Board of Commissioners in the CMP approvalthat the entire Resort propefty 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(BX2Xc). 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 PageT 19 21 (s00?l 4 41.08 3 39.92 4 39.44 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 (201 I )(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 ( l992XORS 92.017 requires counties to recognize lawfully created lots and parcels "until some action is taken to erase the lawfully-established property Iines"). 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 parcelwith 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). 3 41.00 1 40 88 2 40 40 I II ttn{ 5200 5102 5104 51038000 7900 7801 1501 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 ofTax 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 and8000 meet the definition of a lot of record provided by DCC 18.04.030. The applicable sections of DCC I 8.04.030 that define lots of record are: t'Lot of Record" means: A lot or parcel at least 5,000 square feet in area and at least 50 feet wideo 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) "Partilioning 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 ofthe lot or parcelo 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 descriptiono 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. lt 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 A. Hearings Officer Frank November 19,2021 Page 9 8000 was created on April I 8, I 9l 0 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 (Exhibit39, Ex C). Neither of the lots created by deed were subject to minimum lot sizes on the date of the creation. 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 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 ofan assessor's roll change or for the convenience ofthe 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(AX3). 4. A parcel created by the foreclosure ofa security interest. Response: Neither lot of record was created by any of these means. 6. Anneal 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 2T.lnterestingly, 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. l7 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, (l) whether the case B. C Hearings Officer Frank November 19,2021 Page l0 presents a "significant issue of law in the interpretation" of the constitution, a statute, orthe 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 l9th day of November,202l . Very truly yours, SCHWABE, WILLIAMSON & WYATT, P.C. Kenneth Katzaroff PDX\ I 35849\262760\JKKA\32299635. I EVIDENCE FOR INCLUSION IN THE RECORI) F rLE 247 -21-000508-SP/247-2 I -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 Bxhibit Description of Exhibit I Decision Approving Phase A-1 Tentative Plan, File247-18-000386-TPl454-SPl592- 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 2006-15l (part) 4 Deed recorded at 2021 -44813 5 Deed record ed at 2021 -50325 6 Illustration of Lot Line Adj ustment between TL 7800 and 7900 1 BOCC Decision for Tumalo Irrigation District, File247-17-000775-ZCl-776-PA (relevant part) 8 Hearings Officer's Decision for Phase A-l Tentative Plan on Remand,247'21- 00073 I -A 9 BOCC Order declining review of Phase A-l Tentative Plan on Remand,247-21- 00073 l -A l0 Fish and Wildlife Miti lon Addendum A 2l 2008 ll Central Land's FinalArgument for 247-21-000731-A with its exhibits by Liz Fancher l2 FMP Decision dated October 6,2008 by Hearings Officer Briggs (conditions of roval and fi re FWM l3 Letter from Janet Neuman to Gre Frank dated Se ber 14 2021 l4 Central Land's Final for 247 -21-00073 I -A 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-l 7036 on November 2 2021 l8 OWRD Email of December 24,2019 re golf course site plan and July 8, 2020letter from Janet Neuman to BOCC t9 Memorandum from David NeMon, P.E., C.E.G. dated August 24,2021 re Impact of Well Site Relocations 20 Memorandum from David NeMon P.E C.E.G. dated November I I 2021 2l Notice of 22 BOCC Decision - Condition 38 Findings 23 Decisions and DCC l8.l13.020 Findin 24 Letter from K Delashmutt Dated September 7,2021, Detailing Owned Water 25 Site Plan A and Condition C 26 BOCC Discussion on Water and Condition l0 27 Opening Brief for A176353 (Golf Course Appeal to Court of Appeals) 28 Bie Falls Ranch Memorandum of Agreement 29 Timeline of Approvals and Interpretation of Condition l0 & 38 30 NOAA Precipitation Data 3l Farmers Explore Changing Frog Rules 32 Froqs. Fish And Farmers Feel Out Compromise On Deschutes River - OPB JJ 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 I Pat 532 (Deschutes County Clerk) 4l ORAPs Exhibit 26 Page 1 of3 August 12,2020 Board of Commissioners - BOCC Wednesday Meeting Consideration of Golf Course Site PIan Will Groves: That takes us to number l0 and this has to do if the proposal complies with final master plan condition # I 0 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 resoft 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 resorl 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 resoft for the proposed use and cerlainly 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 rnitigation 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 l0 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 pennits 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 rnuch for us. It's part of the application process to rnake 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 ... l- PDX\ I 35849U62760\JKKA\32294893. I Exhibit 26 Page 2 of 3 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 developrnents 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 ltave 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 tlrat's dealt with by water resollrces. 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 tlte 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 )_ PDX\ l is849U62760\JKKA\32294893. I Exhibit 26 Page 3 of3 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 materialto 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 26tt'with an understandingthat 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 26tt'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 itwould need to be available to you on the 20t1' atthe 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. 3- PDX\ I 35 849U62760\JKKA\32294893. I Exhlbit27 Page 1 of53 FILED Ju\y22,2021 12:07 AM Appellate Court Records IN THE COURT OF APPEALS OF THE STATE OF OREGON ANNLINZIATA GOULD ANd PAUL J. LIPSCOMB, Petitioners, V DESCHUTES COLINTY ANd KAMERON K. DELASHMUTT Respondents. Land Use Board of Appeals 2020095 A176353 OPENING BRIEF OF PETITIONER ANNUNZIATA GOULD AND EXCERPT OF RECORI) (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 1 1,2021 Jeffrey L. Kleinman, Esq., OSB #743726 1207 SW Sixth Avenue Portland, OR97204 Phone: (503) 248-0808 Email: Kl Paul Lipscomb, Etq., OSB #752301 PO Box 579 Sisters, OR 97759 Phone: (503) 551-7272 Email: i pscomb@.gmail.com P etitioner P aul Lips comb aol.com Attorney for Petitioner Annunziata Gould (Continued on reverse side)July 2021 Exhrbit 27 Page 2 of 53 David Adam Smith, Etq., OSB #170317 Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Email: adam.deschutes. Attorney for Respondent Deschutes County J. Kenneth Katzaroff, Etq., OSB #143550 U.S. Bank Centre 1420 sthAvenue, Suite 3400 Seattle, WA 98101 Phone: (206) 405-1985 email: kkatzaro e.com Attorneyfor Respondent Kameron K. Delashmutt Exhibit 27 Page 3 of53 TABLE OF CONTENTS I. STATEMENT OF THE CASE Nature of the Proceeding and Relief Sought Nature of the Agency Order for which Relief Is Sought. Statutory Basis of Jurisdiction. Effective Date of LUBA's Order Questions Presented on Appeal Summary of Arguments.. . . . G. Statement of Facts.. 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 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. B. Standard of Review C. Argument 1 A. B. C. D. E. F. 1 2 2 J aJ J 4 7 7 7 8 IV. CONCLUSION.24 Gould v. Deschutes County,79 Or LUBA 561,563-64 (2019), appeal dismissed, - Or APP - (2019), rev'd and rem'd,367 Or 427,478P3d982 (2020), aff'd,310 OrApp 868, 454P3d1073 (2021).... . " ' 4,6,13,14,20,23 Gillette v. Lane County, 52 Or LUBA I (2006). 17 Exhibit2T Page 4 of53 ll TABLE OF AUTHORITIES Cases Gould v. Deschutes County, -OR LUBA -Final Opinion and Order, June 11,2021 Rhyne v. Multnomah County,23 Or LUBA 442,447 (1992)" ' ' Siporen v. City of Medford,349 Ot 247,243 P3d776 (2010)' ' ' Younger v. City of Portland,3O5 Or 346,752P2d262 (1988)' ' Oregon Revised Statutes oRS 1 e.260(txa)@). oRS 197 .829 oRS 1e7.83s(e)(aXc). oRS 1e7.83s(e)(aXD). oRS 1e7.8s0(1) oRS 197.850(3Xa) oRS 1e7.8s0(8) and (e). . ' Oregon Administrative Rules oAR 661-010-070(1) Other Authorities 1,3,6,13, 15 t7 14 t9 aJ t4 I9 15 2 aJ 7 2 8Deschutes County Code I 8. 1 1 3.040(C) Exhlbit 27 Page 5 of53 ill INDEX OF EXCERPT OF RECORI) LUBA's Final Opinion and Order dated June 1I,2021 ER 1-20 Exh\bit 27 Page 6 of53 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 1 l, 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. 1 Exhtb\t 27 Page 7 of53 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 Commiss ioners, F ile Nos. 247 - 19 -000 8 8 1 - SP, 247 -20-00027 9 - 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,T she appeared orally and in writing, both directly and through her attorneys, Jeffrey L. Kleinman and rFor 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 8 of53 aJ 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 L Petitioner timely filed and served her petition for judicial review on July l, 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(lXaXB). 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") Conditionl0, 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 Exhtbit 27 Page 9 of53 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 10 of53 Or App 868, 484 P3d 1073 (2021) (This case is referred to by LUBA as " Gould vII ".): 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 a/so 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. 1d.; 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. In2006, the county approved the Thornburgh Resort conceptual master plan (CMP) and, in 2008, approved a frnal 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 resort overlay zone. The property was formerly used as alarge 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 66oh of the entire acreage of the resort) planned as a golf course, common areas, and buffer areas. * * * The FMP divides the development into seven phases. The first phase, Phase A, includes development of transportation infrastructure, 5 Exhibit 27 Page 11 of53 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 assufance (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 aroad 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. 1d 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 L6, 2020 . LUBA Rec 3 73 . Her petition for review appears at LUBA Rec 1 72- 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, and failed 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 'Phase A-1 includes "a tentative subdivision plat for 192 single-family res idential dwel I ing lots, 24 s ingle-fami ly deed-restricted OLU [Overni ght Lodging Unit] lots, and 13 OLU lots, together with roads, utility facilities, lots, and tracts for future resort facilities and open space." ER-4. 6 Exhibit2T Page 12 of 53 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 l- 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 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. Petitioners raised and preserved the issues raised in this assignment before LUBA in their petition for review. LUBA F.ec 194-206 B. Standard of Review. The Court of Appeals' standard of review in appeals frorn 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 its judgment for that of the board as to any issue of fact. (9) The court may affirm, reverse or remand the order. The court shall reverse or remand the order only if it finds: 7 Exh\bit 27 Page 13 of 53 (a) The order to be unlawful in substance or procedure, but error tn procedure 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, 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. 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 18.1 13.040(C) provides C. 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 satisffing the site plan or subdivision criteria. findings shall be made that the specific DCC 18.1 13 and the FMP (Emphasis added.) 8 In its Order, LUBA discussed the crucial role of an available source of Exhrbit 27 Page 14 of53 water herein, as well as the legal status of that source The golf course development will require water. There are no existing natural stfeams, 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 of construction 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 from OWRD. On June 5,2018, OWRD issued a proposed final order approving the extension. On JuJy 20,2018, petitioner filed a protest of the proposed final order and requested a contested case hearing. On October 26,2018, OWRD issued a final order allowing the permit extension without holding a contested case hearing. Record 1697. On January 3l , 2019, OWRD withdrew the Octob er 26, 2018 final order and referred 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 a submittal to the county on July t,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 abate dust during construction, for fire protection, to irrigate and create 9 Exhibit 27 Page 15 of 53 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 irrigatingthe 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 additional22 GPM or .06 CFS. 6. The Fire Suppression system will require 2,250 GPM or 5.01 CFS. 7. The permit currently held by the Resort had a Completion date or C-date of April 3,2018. 8. The Resort admits that it "will require an OWRD Extension of Time" 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, 20 I 9,withdrew the Extens ion Order. 10. WRD has again recently confirmed that no Extension currently exists. 1 1. 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 been challenged and will be reviewed ultimately in a Contested Case before an Administrative Law Judge. Rec 1 077-78 (footnotes and emphasis omitted) Exhibit2T Page 16 of53 11 LUBA Rec 195-96. Petitioner argued before LUBA: The applicant hadheld 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#l). The applicant requested an extension of the expiration date on Permit G-t7036. 1d, Finding of Fact #2. Petitioner timely opposed that request. 1d., Finding of Fact #6. Although OWRD initially granted an extension , 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 whether an 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. the use the permit. In short, there is currently insufficient water currently available to Exhibit 27 Page 17 of 53 t2 the Resort for the proposed use. There is certainly not enough to do what the 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 withdrawn or 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 use of 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 soughtjust 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 physically divert 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 the issuance of the permit and April 3,2018. * * * Rec 1689. (Emphasis in original.) Exhrbit 27 Page 18 of53 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, 612ll19, slip op 34). The facts have changed since the hearings officer issued his decision on October 30, 2018. As stated above, the decision is in 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 19 of53 l4 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 l0 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-l7036 remains an effective and valid 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.'r * * * ER I5 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 77 6 (2010). ER 16-17 . Rather, the interpretation of that condition of approval is reviewed for legal error pursuant to ORS 197.835(9XaXp). 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 ensure compliance with DCC 18.1 13.070(K), which requires intervenor to Exhtbit 27 Page 20 of 53 l5 demonstrate that "fa]dequate water will be available for all proposed uses atthe 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 mitigation water 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(9XaXO) 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 Codel8.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 satisff 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 2I of 53 t6 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 and12] application of the water must be accomplished within five years, by April 3,2078. * * * 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 proceedingmay 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 l0 is satisfied by documentation that Permit G-17036 is not cancelled and an Exhlbit 27 Page 22 of 53 t7 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 "thatthe 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 23 of 53 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 satis$z 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 24 of 53 I9 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 rs 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(9XaXC). Younger v. City of Portland, 305 Or 346, 358, 7 52 P2d 262 (1 e88) 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 plan review for each individual phase of the resoft 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. Exhibit 27 Page 25 of 53 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 remaining mitigation 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. The mitigation 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 the mitigation 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: Exhrbit 27 Page 26 of 53 2l The applicant has consistently identified a transfer from Big Falls Ranch as the source of the required rnitigation 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 the terms and conditions of the Agreement." Thus, mitigation water will not be available after December 1 of this year 120201, 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 FMP Conditionl0 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 We understand petitioner to argue that the Condition 10 requirement that intervenor provide "an accounting of the full amount of mitigation, as required under the water right," implicates mitigation water It held Exhibit 27 Page 27 of53 22 required to satisSr the no net loss standard. Petitioner asks, "[W]here is [intervenor's] updatedaccounting 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 LUBA278,220 (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 l8.l 13.070(K), which is concerned with the availability of water for resort use and mitigation for the 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 satisf,i DCC I 8.1 13.070(D). ER 12 Here, LUBA misconstrued petitioner's argument under her third assignment of error. Petitioner did not raise the o'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 28 of 53 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 satisff the FWMP is not relevant to the review of the golf course site plan because intervenor did not propose and the county did not approve any change to the FWMP as part of the golf course site plan review. Record 1 3 (citing Gould VIII,79 Or LUBA at 583-84). Petitioner does not challenge those findings. Accordingly, we agree with intervenor that Condition 10 is concerned only with satisfaction of DCC 1 8. I I 3.070(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. 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). * * *" z.) Exhibit 27 Page 29 of 53 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 ConditionlO. ilL 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,202l Jeffrey L. Kleinman OSB No. 743726 Attorney for Petitioner Annunziata Gould Exhibit 27 Page 30 of 53 EXCERPT OF RECORD 1 2 .tJ 4 5 6 7 8 9 10 11 l2 13 t4 15 t6 I7 18 t9 20 2l 22 23 24 25 ?6 27 28 29 30 31 32 JJ 34 35 36 37 38 Exhibit 27 Page 31 of53 BEFORE THE, LAND USE BOARD OF APPEALS OF THE STATE OF OREGON ANNTINZIATA GOULD, Petitioner, and ER-1 Fs;cElvil"[3 JUN 15 2O2T ''if-t3i,];"Y#T]f;i" PAUL J. LIPSCOMB, Int erv eno r - P e t i t i o ner, VS DESCHUTES COUNTY, Respondent, and KAMERON K. DELASHMUTT, Int erv eno r- Re sp ondent. LUBA No. 2020-095 FINAL OPINION AND ORDE,R Appeal from Deschutes CountY. Jeffrey L. Kleinman filed a petition for review and reply brief and argued on behalf of petitioner. Paul J. Lipscomb filed apetition for review No appearance by Deschutes CountY J. Kenneth Katzaroff filed the response brief and argued on behalf of intervenor-respondent. Also on the brief was Schwabe, Williamson & Wyatt, P.C. Page 1 1 2 J 4 5 6 7 Exhibit 27 Page 32 of 53 ER-2 ZAMUDIO, Board Member; RUDD, Board Chair; RYAN, Board Member, participated in the decision. AFFIRMED 06ltll202l You are entitled to judicial review of this Order. Judicial review is govemed by the provisions of ORS 197.850' Page 2 Exh\bit 27 Page 33 of53 ER.3 I 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 inigation 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- g oriented accommodations and developed recreational facilities in a setting with 10 high natural amenities." Statewide Planning Goal 8 (Recreational Needs); ORS 1 1 197 .445.Local govemments may plan for the siting of destination resorls 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 (FN/P). The FMP provides for phased development and includes a fish and 18 wildlife habitat mitigation plan (FWMP) to offset the impacts of the resort lg development. The FMP divides the development into seven phases. The first 20 phase, Phase A, includes development of transportation infrastructure, a golf 2l course, a restaurant, meeting facilities, open space, 300 residential units, and' 150 22 overnight lodging units (OLUs), and implementation ofthe FWMP. Page 3 Exhrbit 27 Page 34 of 53 ER-4 1 In May 2018, intervenor sought approval for the first phase of 2 development.l Intervenor requested approval of a tentative plan for a portion of 3 the approved Phase A, calling the partial sub-phase 'Fhase A-1,"which includes 4 a tentative subdivision plat for 192 single-family residential dwellrng lots, 24 5 single-family deed-restricted OLU lots, and 13 OLU lots, together with roads, 6 utility facilities, lots, and tracts for future resort facilities and open space. We 7 refer to the approvals, collectively, as the Phase A-l TP. A county hearings 8 officer approved the Phase A-1 TP with conditions. 9 On June 21, 2019, we remanded the Phase A-1 TP. Gould v. Deschutes l0 County,79 Or LUBA 561 (2019) (Gould'|/III),affd,310 OrApp 868, 484P3d l l 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 ornet degradation of the 14 resource." We have referred to that standard as the "no net loss" standard. The 15 resort's impact on fish and wildlife, and the efficacy of the FWMP to satisff the I The 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, affd,283 Or App 286, 388 P3d739 (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. Page 4 1 2 aJ 4 5 6 7 8 9 t0 11 l2 13 t4 Exhibit 27 Page 35 of53 ER.5 no net loss standard, has been the subject ofmultiple prior appeals. In Gould VIII, we concluded that a condition of approvalthat the hearings officer imposed in approving the Phase A-l TP violated the right to public participation on whether the no net loss standard will be satisfied by mitigation water from sources not specified inthe FVMP. Petitioner appealed our decision to the Court of Appeals. That appeal ultimately went up to the Supreme Court and returned to the Court of Appeals, which affirmed our decision. 310 OrApp 868,484 P3d 1073. While the Phase A-1 TP decision was climbing the appellate ladder, intervenor applied for the golf course site plan review. The county planning division administratively approved the application. Petitioner appealed that approval to the board of county commissioners, which approved the golf course site plan review with conditions. This appeal followed. INTERVENOR.PETITIONER'S ASSIGNMENT OF ERROR ORS 197 .455 provides, in Part: "(1) A destination resort may be sited only on lands mapped as eligible for destination resort siting by the affected county. The county may not allow destination resorts approved pursuant to ORS 197 .435 to 197 .467 to be sited in any of the following areas: "(a) Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. il*{<*** 15 t6 t7 18 t9 20 2l 22 23 24 Page 5 Exhibit 27 Page 36 of53 ER.6 1 2 1J 4 5 6 7 8 9 l0 lt 12 "(2) In carrying out subsection (1) of this section, a county shall adopt, as paft of its comprehensive plan, a map consisting of eligible lands within the county. The map must be based on reasonably available information and may be amended pursuant to ORS 197.610 to 197.625,but not more frequently than once every 30 months. The county shall develop a process for collecting and processing concurrently all map amendments made within a 30-month planning period. A map adopted pursuant to this section shall be the sole basis for determining whether tracts of land are eligible for destination resort siting pursuant to ORS 197.435 to 197.467." 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 ak miles 18 of the urban growth boundary for the city of Bend, which Lipscomb argues l9 currently has a population of more than 100,000. Lipscomb acknowledges that, 20 when the county's destination resort map was adopted, and when the CMP and 2l FMP were approved, the population of Bend was less than 100,000. However, 22 Lipscomb argues that relevant populations for purposes of ORS 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(l) and "existing population" in ORS 197.a55(1Xa). 26 Lipscomb argues that, while the CMP and FMP have been approved, the resort 27 is not "sited" for purposes of ORS 197.455 until site plan review. Hence, Page 6 Exhibit 27 Page 37 of53 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 theplain language of ORS 197.455. ORS 197.455 requires counties 5 to inventory and map lands eligible for destination resort siting. The county 6 mapped and identified the subjectproperty 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. g The limitations on resort siting in ORS 197.455(l) apply at the tirne that a 10 county adopts maps identiffing lands eligible for siting destination resorts. After 1l a county has adopted such maps, the limitations in ORS 197 .455(l) 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 1,4 Oregon Landwatch v. Deschutes County, 66 Or LUBA 192,201 (2012); Eder v. l5 Crook County,60 Or LUBA 204,21 1 (2009). 16 Lipscomb also argues that the county failed to make adequate findings 17 supporled by substantial evidence that the challenged decision complies with 18 ORS 197.455. Those arguments rely on Lipscomb's interpretation of ORS lg lg7.455,which we reject above. Accordingly, we do not separately analyze those 20 arguments. 27 Intervenor-petitioner's assignment of error is denied. Page 7 Exhibit 2l Page 38 of53 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 atLUBA 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 siteplan. Record 1253,, g The county rejected that argument, explaining that the golf course site plan 10 and the Phase A-l 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 properfy 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 Page 8 Exhibit 27 Page 39 of 53 ER.9 1 the county for compliance with relevant approval criteria. See DCC 2 18.113.040(C) (providing that, inaddition 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, ifthe configuration ofthe 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 l0 plan does not depend on approval ofthe Phase A- 1 TP. Intervenor observes that, 11 even if the Phase A-1 TP approval is modified or denied on remand, the t2 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 siteplan 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 1 1. Page 9 Exhibit 27 Page 40 of 53 ER.IO I 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 l0Provides: 6 "Applicant shall provide, at the time of tentative platlsite plan 7 approval review for each individual phase ofthe resort development, 8 updated documentation for the state water right permit and an g accounting of the full amount of rnitigation, 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 18.1 13.070(K), which requires intervenor to demonsttate that "[a]dequate water 13 will be available for allproposed uses atthe destination resort." The resort's use 14 ofwater is governed by water rights and rules administered by the Oregon Water l5 Resources Department (OWRD). The county explained the genesis of Condition 16 10 as follows: t7 18 t9 20 2l 22 23 24 "what is now FMP Condition #10 was first included in, and carried over from the CMP approved in 2006. By including the condition as part of the CMP, the lboard of county commissioners] at that time bverturned a finding by a County Hearings Officer stating that 'until the applicant demonstrates that it has enough mitigation credits to mitigate for 942 acre-feet of water (the estimated amount of consumptive use per OWRD), it is unlikely that the application will be approv.d.'Ft 3 See OAR 690-505-0605(2) ("'Consumptive use' means [OWRD's] determination of the amount of a ground water appropriation that does not return Page 10 1 2 aJ 4 5 Exhibit 27 Page 41 of53 8R.11 "[Intervenor] appealed that Hearing Officer's decision to the [board of county commissioners] arguing that mitigation water only needed to be provided when the water rights permit dictated, not prior to development of the entire resort. On appeal, fCentral Oregon Irrigation District (COID)] manager Steve Johnson argued that: "'The decision rendered by Hearings Officer Anne Corcoran Briggs last month implies that the Resort must bring all ofthe water to the table with the application. This decision, if left unrnodified, will set a precedent that will artificially escalate the competition for water rights in the basin, and consequently drive the price up, and drive some farmers out. Her analysis of Water Availability on page 25 expressly conditions approval of the application on having the credits in hand now. Some of this water will not be needed for many years, and this policy, if followed, will be a waste of water, against the beneficial use doctrine that is the pillar of Oregon's water law policy.' "The previous [board of county commissioners] agreed with [intervenor] and COID, andrequired [intervenor] through Condition 10 to provide mitigation water when required by the OWRD water right permit. "The previous fboard of counfy commissioners] further found that prior to mitigation water being required by the OWRD water right permit, [intervenor] is only required to show it is not precluded from obtaining mitigation water as a matter of law. The previous [board of county commissioners] further found that [intervenor] had met that standard andhad exceeded itby showing itwas feasible atthat time to obtain sufficient mitigation water when required by OWRD. The current [board of county commissioners] agrees with and considers those previous findings as binding on the subject application." Record 15-16 (internal citations omitted). to surface water flows in the Deschutes Basin due to transpiration, evaporation or movement to another basin."). Page l l 6 7 8 9 10 11 l2 13 t4 15 t6 t7 l8 t9 20 21 23 24 25 26 27 28 29 30 31 22 Exhibit 27 Page 42 of 53 ER.12 1 We understand petitioner to argue that the Condition lOrequirement that 2 intervenor provide "an accounting of the full amount of mitigation, as required 3 under the water right," implicates mitigation water required to satisff 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 ltsh 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 ls 9 insufficiently developed for our review. Deschutes Development Co. v. 10 Deschutes County,5 OrLUBA2l8,220 (1982). 11 Moreover, to the extent that we understand the argument, we reject it. 12 Condition l0 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 ofwater, which is related to but distinct from the fish and wildlife mitigation 17 plan that is required in order to satisff DCC 18.1 13.070(D). 18 As we explained in Gould VIil, the resort's consumptive use of 19 groundwater is anticipated to impact an offsite fish-bearing stream, Whychus 20 Creek, by reducing instream water volumes and increasing water temperatures. 2l The FWMP requires intervenor to replace the water consumed by the resort with 22 water of sufficient quantity and quality to maintain fish habitat, especially cold Page 12 Exhibit 27 Page 43 of53 ER-13 1 water thermal refugia. FMP Condition 38 requires intervenor to "abide by" the 2 FWMP. and "submit an annual reporl to the county detailing mitigation activities 3 Ihathave 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 satisSr the FWMP is not 7 relevant to the review of the golf course site plan because intervenor did not 8 propose and the county did not approve any change to the FWMP as part of the 9 golf course site plan review. Record 13 (citing Gould VIII,79 Or LUBA at 583- 10 84). Petitioner does not challenge those findings. Accordingly, we agree with 11 intervenor that Condition 10 is concemed only with satisfaction of DCC 12 18.113.070(K) regarding the availability of water for resort use and mitigation 13 for the volume of consumptive use, as required by OWRD under the water right. 14 The golf course development will require water. There are no existing 15 natural streams, ponds, wetlands, or riparian areas on the site. The resort water L6 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 lg 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 2I resort development year-round. Under that water right, intervenor is responsible 22 for providing 1,356 total acre-feet of mitigation water. Permit G-17036 specified Page 13 Exhlbit 27 Page 44 of 53 8R.14 I 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 aprotest ofthe 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 atthe time ofthe 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'?equires 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 2l not render the permit void. We concluded that the hearings officer did not err in 22 construing Condition 10 to require documentation of the water right and that Page 14 Exhibit 27 Page 45 of53 ER.I5 1 intervenor had sufficiently documented its water right, notrvithstanding 2 petitioner's protest. Our decision was upheld by the Court of Appeals. 310 Or 3 App 868,484 P3d 1073. 4 Petitioner again disputed the status of intervenor's water rights during the 5 county's review of the golf course site plan. Petitioner argued that intervenor 6 could not satisff Condition 10 because intervenor's water rights permit had 7 expired and the extension was contested and not final. 8 Theboard of county commissioners interpreted Condition 10 as "prirnarily g * * * an infonnational requirement," adopting the hearing offtcer'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 l5 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 OVRD's water rights information query 18 showed the status ofthe 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 2l petitioner, the record demonstrates that the water right is expired and intervenor 22 therefore does not have a valid water right permit. Page 15 Exhrbit 27 Page 46 of53 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 a/so ORS 6 lg7.B2g(l)(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 Ot 247,259,243P3d776 (201q'4 g oRS lg7.82g(I) requires LUBA to affirm a govemmg body's l0 interpretation of its own comprehensive plan provision or land use regulation 1 I unless the interpretation is inconsistent with the provision or regulation's express 4 oRS 197.829(l) provides: "[LUBA] shall affirm a local govemment'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; Is inconsistent with the purpose for the comprehensive plan or land use regulation; Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements." "(b) "(c) "(d) Page 16 Exhlbit 27 Page 47 of53 ER.17 I language, purpose, or underlying policy. ORS L97.829(l) 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. CityofSalem, _OTLIJBA -, -(LUBANo2018-143,5 Aug 14, 2019) (slip op at l4),affd sub nom M & T Partners, Inc. v. Miller, 302 6 Or App l5g, 170,460 P3d ll7 (2020). To a "limited extent," LUBA will defer 7 to plausible interpretations of county land use regulations that the governing body 8 made in the course of interpreting a condition of approval. Kuhn v. Deschutes g County, 74 Or LUBA 190,194 (2016). The deference question '?educes to 10 whether the city was interpreting a land use regulation," and a condition of 1l 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.I 13.070(K). However, intervenor does not contend or 14 explain how, in interpreting Condition 10, the county interpreted DCC 15 18.113.070(K). Thus, the county's interpretation of Condition l0 is not entitled 16 to def-erence and, instead, we review it for legal effor. ORS 197.835(9XaXD). l7 As explained above, the county imposed Condition 10 to ensure 18 compliance with DCC 18.113.070(K), which requires intervenor to demonstrate 19 that "fa]dequate water will be available for all proposed uses at the destination 20 resort." Condition l0requires intervenor to provide "updated documentation for 2l the state water right permit." While the legal effect of the OWRD contested case 22 hearing on intervenor's requested extension of Permit G-17036 is disputed, Page 17 Exhibtt 27 Page 48 of 53 ER.18 I petitioner has not established that, as a matter of law, Permit G-17036 is not a 2 valid water right. In that context, we cannot say that the county erred in finding 3 that intervenor provided the required documentation for the state water right 4 permit required by Condition 10. We conclude that the county did not em in 5 findingthat 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 concludethatthe county's interpretation of Condition l0isnot g "contrary to" ORS 537.130, which requires an OWRD permit for the use of 10 water. DCC 18.1 13.070(K) requires. intervenor to demonstrate, and the county to 1 1 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. l5 In otherwords, county landuse approval ofthe golf course siteplan does not and 16 cannot approve the use of water and, thus, will not result in aviolation of ORS r7 537.r30. l8 Petitioner's third assignment of error is denied. Ig PETITIONER'S SECOND ASSIGNMENT OF ERROR 20 In the second assignment of error, petitioner argues that the county erred Zl in finding that petitioner's arguments regarding Condition 10 are improper 22 collateral attacks on the FMP. Petitioner does not challenge any specific findings. Page 18 Exhibtt 27 Page 49 of 53 ER-l9 1 Instead, petitioner points to a range ofpages in the challenged decision. Itis 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 I 8.1 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 g on the merits. We agree. We affirm the county's conclusion that Condition 10 is l0 satisfied under the third assignment of error. Accordingly, even if the county l l erred in concluding that some of petitioner's arguments regarding Condition 10 12 are impermissible collateral attacks, those elrors provide no basis for remand. 13 Petitioner's second assignment of emor is denied. 14 The county's decision is affirmed. Page 19 Exhib\t 27 Page 50 of53 Certificate of Mailing ER-20 I hereby certifr that I served the foregoing Final Opinion and Order AFF' for LUBA No. 2020- 095 on June I I,202!, by mailing to said parties or their attorney a true copy thereof contalned in a sealed envelope with postage prepaid addressed to said parties or their attomey as follows: David Doyle Deschutes County Counsel's Oftice 1300 NW Wall Street, Suite 205 Bend, OR 97701 J. Kenneth Katzaroff Schwabe, Williamson & Wyatt, P.C. 1420 sth Ave, Suite 3400 Seattle, WA 98101 Jeffrey L. Kleinman 1207 SW 6th Avenue Portland, OR 97204 Paul Lipscomb PO Box 579 Sisters, OR 97759 Dated this 1lth day of June. 2021 Erin Pence Executive Support Specialist Vanessa Steele Executive Support Specialist Exhibit 27 Page 51 of53 CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE UIREMENTS I certify that this brief complies with the word-count limitation in ORAP 5.05(1Xb)(iiXA), 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 L4 point for both text of the brief and footnotes as required by ORAP 5.05(lXdxii). Dated: July 22,2021. s/ Jeffrey L. Kleinman Jeffrey L. Kleinman, OSB #743726 Attorney for Petitioner Annunziata Gould 1207 SW Sixth Avenue Portland, OR97204 Telephone: (503) 248-0808 Email : KleinmanJl@aol. com Exhrbtt 27 Page 52 of53 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, OP.97759 Email: i scomb@email.comrp P etitioner Paul LiPs comb David Adam Smith, Esq. Deschutes CountY Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Email : adam. smith(E deschutes.org Attorney for Respondent Deschutes CounQ J. Kenneth Katzaroff, Esq. U.S. Bank Centre 1420 sthAvenue, Suite 3400 Seattle, WA 98101 email : kkatzaroff@ schwabe. com Attorneyfor Respondent Kameron K. Delashmutt 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 IulY, 2021 s/J L. Kleinman by Jeffrey L. Kleinman, OSB #743726 Attorney for Petitioner Annunziata Gould 1207 SW Sixth Avenue Portland, OR97204 Telephone: (503) 248-0808 Email: KleinmanJl@aol.com PagC 1 - CERTIFICATE OF SERVICE AND FILING Exhibit 27 Page 53 of53 CERTIFICATE OF FILING I certiff that on JuIy 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 I 163 State Street Salem, Oregon 9730I-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 this22nd day of July,202l s/ Jeffrev L. Kleinman Jeffrey L. Kleinman, OSB #743726 Attorney for Petitioner Annunziata Gould 1207 SW Sixth Avenue Portland, OR97204 Telephone: (503) 248-0808 Email : KleinmanJl(E aol. com Page 2 . CERTIFICATE OF SERVICE AND FILING Exhibit 28 Page 1 of5 MEMORANDUM OI'. AGREEMENT This is a Memorandum of that certain unrecorded Purchase and Sale Agreement for Water Rights (including all amendments and addenda thereto, the "Agreement") dated effective Febiuary 13,2079,between Pinnacle Utilities, LLC ("Buyer") and Big Falls Ranch Co. (,,Scllej';, encumbering portions of the real property in Deschutes County, Oregon, described in the attached Exhibit A (the "Property"). The Effective f)ate of the Agreement is February 13, 2019, and the Agreement expires on June l, 2021 unless sooncr terminated or as may be extended up to December 1,2027, pursuant to the terms and conditions of the Agreement. Buyer has the right to purchase certain water rights associated with the Properly as set forth in the Agreement. Seller has recently transfcrrcd ccrtain water rights associated with the Property from a surface water point of diversion to groundwater points of appropriation. Upon the effective date of the Agreement, Seller has agreed to cease diverting surface water from Deep Canyon Creek subject to the terms and conditions of the Agreement. This Mernorandum is not a complete summary of the Agreement. Provisions in this Memorandurn shall not be used in interpreting the Agreement provisions. In the event of a "onflirt between this Memorandum and the unrecorded Agreement, the unrecorded Agreement shall control. IN WITNESS WHEREOF, the parties have executed this Mernorandum on e++.2o'L/ , SELLER: BUYER: RenrnTo; Deschutcs CountY TlttB?"Sffit AFTER RECORDING RETURN TO Pinnacle Utilities, LLC 2447 NW Canyon Dr. Redmond, OR 97756 BIG FALLS RANCH CO., an Oregon corporation Rex . Barber, Jr., Deschutes county official Records 202145180 D.AG stn=l BN 081021202103:26 PM $25.00 $11.00 $10.00 $61.00 $6.00 $113.00 l, Steve Dennison, County certify that the instrument Official Records. Clerk for Deschutes County, Oregon, Steve Dennison - County Clerk PINNACLE UTILITIES, LLC, an Oregon limited liability company 2 R.6 By INOTARY PAGE FOLLOWS]TITS DOGT'TfiHT TI.ID f(N NDG(ND.IY DDggrilrTDs ootjilTrTm.I(tlrpAitvAs AI{ AOCt}ilHOltATl(tl cfllu, lTt ts il(}7 EEDil IIIAH]{E ^S fO TXS E[!GT'TI{N{ oR AS ro rs f,FfEcf lfitn rllE?rLE {01535040-01042?33;21 I -MEMORANDUT{ OF AGREEMENT Exhibit 28 Page 2 of 5 STATE OF OREGON ) ) ss. County of Deschutes ) ' This instrument was acknowledged before me this Rex T. Barber, Jr., as President of Big Falls Ranch Co. STAilP COilf,ERFECK NOTARf PUBIIC.ORESOil eoHiltssroN r{o, {008tzl 6rel-ot'E- C REGON ^?e cF f,L Jl day of II &,le 202l,by 202l,by STATE OF OREGON ) ) ss. County of Deschutes )-t-l This instrum€nt was acknowiedged before me this A-Lday of Kameron Delashmutt as Member of Pinnacle Utilities, LLC' Y PUBLIC FOR O PLIBLICSTATP OOTHERPECI( NOTARY PUEIIC-OREOOH coHlllsglot{ llor I 008322 GreLh"n FOR OREGON( 7*k {0163s0404 t042733;2 }2-MEMORANDUM OF AGREEMENT Exhibit 28 Page 3 of5 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Iattached] {0r63s040-01042733;2} EXHIBIT A TO MEMORANDUM OF AGREEMENT Exhibit 28 Page 4 of5 ,[EeEnug6e441rox RO Co PARCT$SFE, rttn8cl l4 l'!9f, in PmJtitin cl-lii#t?..Ptgc fa [4qchdtos' '-j - li4l PARCIIIJ,TWO: Ihfc€l:l of Fffdrion rlirtggo---j-i:r+csttled rurrc 4, im6, t nnirllt! Cni'ln"r. t^fog" S0SrDcschrrtg CorrntI,. O,r.u8ou PiIRCELFOURI Filcct 2;f lhaition PIar Ho. 1999-50. tossrcd h thu SgrlhcnstQuuterisEtlllafsdlion t8, fo'r,,ru'hiF 14 Soutll; Rdt8p l?" Edsl of thq Willrmrtus Meridiani Dtfcht$rs ertultf; 9rEftsn; EX CEIfNNO N II'R.EF ROil. I'OCE-IHER ll,i/r_ru; mp16 ftq li*,sl Agware; lnc All Rights 14 0l 5.i Exhibit 28 Page 5 of5 LF,UO t.CIes-er:ipf io.h'c-a [t FAITCEL EIVE: imn rpdnt soudxuly angl_e ?d.ffl8' southqly lcr.t ta tl.'e,Fln1 Ari Rights Seserved:P-age 15 -OT .CJ: Exhibit 29 Page I of 49 Timeline "pDF 2OIg/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 wellfollow the numbered PDF documents Source of lnformationWhenAction DC No. 2006-L51, CU-05-20 pp. 93 - 97, Exhibit F May 10, 2006 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). CMP approved by BOCC PDF 2019/2018 Rec 408March 22,2007OWRD issues final order accepting settlement of appeal of groundwater permit application. OWRD increased required mitigation for Resort water use to "L,356.0 acre-feet in the General Zone of lmpact (Anywhere in Deschutes Basin above the Madras gage, which is located below Lake Billy Chinook.)" 54 or LUBA 20s (2007) 54 Or LUBA at264-265 54 Or LUBA at265-266 54 Or LUBA at267 May 14,2O07LUBA 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(Kl 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' Page L Exhibit 29 Page 2 of 49 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 216Or App 150 (2oo7l 2L6Or App at 159-163 BOCC Approved and Revised the CMP on Remand BOCC adopted CMP Condition 37. lt says: "Applicant shall demonstrate compliance with DCC 18.LL3.070(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." April7,2008 Document 2008-L51, Exhibit G LUBA affirms County aPProval of CMP Approved deferred review of Wildlife Mitigation Plan at time of review of FMP 57 Or LUBA 4O3,4I3-4L7 (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-07-2lMA-08-6 pp.2,30, Exhibit H PDF 2019 Rec (Part) & 2018 Rec L116 Page 2 Exhibit 29 Page 3 of 49 PDF 2019/20L8 Rec 384- 385Applicant offered, in letterfrom Martha 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). Pagel 227 Or App 601, rev den 347 Or 2s8 (2009) April22,2OO9Oregon Court of APPeals (affirmed Affirmed County's decision to defer review of the Wildlife Management Plan until review of FMP cMP) 59 or LUBA 435 (2009) 59 Or LUBA 458-459 Petition for Review LUBA 2OO8-203, p.29. 59 Or LUBA 458-459 59 Or LUBA 459 Petition for Review LUBA 2OO8-203, p.31, fn 8. 59 Or LUBA 459 Petition for Review P. 31 Exhibit I September 9, 2009 LUBA remands FMP aPProval Ms. Gould argued that no FMP condition of approval [notably not Condition 10] assured compliance with the FWMP. ln 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. ln 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 1L, 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 "actual available and used" to com with the Page 3 Exhibit 29 Page 4 of 49 FWMP. LUBA rejected this argument and found that the feasibility of obtaining mitigation water had been addressed in Gould / which settled the issue of the availability of mitigation water for OWRD "volume" mitigation. LUBA found that COID water rights would only be secured "jJ necessary" to meet mitigation obligations under the water permit (Condition 10). [Note: Condition L0 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 cace.l 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 waterfor 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 LL, 2008 letter (TSID mitigation) February 24,2OLO 233 Or App 523 (2010) 233 Or App at 634 233 Or App at 634-635 233 Or App at 635 OWRD lssues Water Rights Permit Permit states: "Mitigation Obligation: 1-355.0 acre- feet annually in the General Zone of lmpact (anywhere in the Deschutes Basin above the Madras gage, located on the Deschutes River below Lake Billy Chinook.)" April3,2013 PDF 2019/20!8Rec2077- 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 20L5 See 78 Or LUBA LI8, ILt (20L8) Page 4 Exhibit 29 Page 5 of49 LUBA remands FMP to County based on issues raised by Central Land and Cattle Co. LLC; rejects allarguments raised on cross-appeal by Ms. Gould September 23, 201.6 74 Or LUBA 326 (20L6) Deschutes County approves FMP on remand After October 2017 78 Or LUBA II8, !22 (2018) LUBA affirms approval of FMP August 2'J-,2018 78 Or LUBA 1-L8 (20L8) Deschutes County approves Phase A-1- Tentative Plan October 30,2018 PDF 2019/2018 Rec 492 LUBA remands Phase A-l 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 lrrigation District (COID)." The permit specifies the source of mitigation water as water from the General Zone of lmpact. 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-l 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-L and LUBA agreed that mitigation may be provided in increments by hase of water use June 2L,2OI9 79 Or LUBA s61- (201-9) 79 Or LUBA at579 79 Or LUBA at 573 PDF 2019/2018 Rec 2078 79 Or LUBA a|574 PDF 2OI9/2O18 Rec L114 79 Or LUBA at574-575 Page 5 Exhibit 29 Page 6 of 49 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) Bie Falls Ranch water (thermal mitigation for the Deschutes River); and (c) by way of a letter addendum dated August 11, 2008, Three Sisters lrrigation District mitigation for Whychus Creek. PDF 2019/2018 Rec 11,15 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 l-0. *** [We agree with intervenor that Condition l-0 is concerned only with satisfaction of DCC 18.1L3.070(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 1,L,202r Page 6 Exhibit 29 Page 7 of 49 pDF 384 LeLw Erz, F sefi'l ScuwAnn, Wu,r,ranasox & Wyllr ATIORNEYS AT LAW Equihb{e Cantsr, 530 Certtr St., NE, Suite 400, Salem, OR 97301 | Phone 503.540.ai62 | Fo( 003.39€.1640 | wvws{fiwab€.cofii MARTIIAO.PecnI Admltted il Oregou and Wa"rhington Dlrcct Line: Salem 503-5404260; Portlaud 503-796-2872 E-lvlall; mpagel@schwabe.com August 11, 2008 Anne Corcoran Briggs Hearings Of'ficer c/o l)eschutes County Planning Division 117 NW Lafayette Avenue Bend, OR 97701 Re: Clarification/l\4odification of Addendum to Fish and Wildlife Mitigation Plan Relating to Potential knpacts of Ground Water Withdrawals on Fish Habitat Our File No.: 1121881138798 Dear Ms. Briggs: This letter is provided on beEblf of our client, Thornburgh Resort, to confrrm modifications to the Thornburgh Fish and Wildlife Mitigation Plan in response to comments from the Oregon Depariment ofFish and Wiidlife (ODFW), and to respond to comments received during the public hearing pftlcess about the possible need for additional mitigation on Whychus Cteek. Modification of Mitigation PIan: Following Thornburgh's submission of its Addendum 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 structures on Deep Canyon Creek. The April Addendum described plans for rernoving only one dam in connection with acquisition of the water rights frorn Big Falls Ranch for mitigation purposes. In reviewing and commenting on the Addendum, ODFW requested that'lhornburgh seek authorization to remove a second dam located just upstream of the Big Falls Ranch dam, on property owned by other parties. During the public hearing process on Thornburgh's Final Master Plan, Thornbwgh indicated its willingness to remove the second dam as part of its Fish and Wildlife Mitigation Plan. This letter confirrrs that intention and so modifies the Addendtrm. Thornburgh is also submitting into the heariug record documentation of its agreement with the ownerq of the second darn to authorize the dam removal. Porlland, OR 503 222.9981 I Sa!* np ".^ 540.4262 | Bend, OR 541.749./1044 Seattle.WA 206.622j711 | Vancower,WA rdt.oB4,75b1 | Washin9on.OC zOz-+gg.$[2UBA NO, 2015-107 PIJ)C/l I 2 I 88/l 38798/MOp/2841 637.3 L u BA 201 s-130 AM E N DE D R ECo*o t$%"*8'$dffi,:: Exhibit 29 Page 8 of49 PDF 385 Anne Corcoran Briggs August 11, 2008 Page2 Possible Additional Modification Relating to Mitigation on Whychus Creek: During the hearing process, much attention was devoted to asserted impacts to Whychus Creek. The Yinger Report indicates apotentialannualreduction of 106 acre-feet of flow in Whychus Creek (assuming rc0% consumptive use) as a result of the proposed new ground water development for Thomburgh. Although Thornt'urgh disagrees with this contention: as described in detail other materials we have submitted for fhe record - Thomburgh does not want to be caught shorl if you determine that additional mitigation is required for possible impacts to Whychus Creek. Therefore, we are providing evidence to dernonstrate that it would be feausible for Thomburgh to provide additional flow of 105 acre-feet per year in Whychus Creek, if needed to meet the county approval standard. This would be in addition to the amount of mitigation water already described in Thornbugh's Addendum. 'We have submitted into the record a letter from Marc Thalacker, Manager of the Three Sisters krigation Distict, describing a proposed conservation project by the district that is expected to generate up to 500 acre-feet of water that will be proteoted as instream flow. This will be fhe final stage of a multi-phased project by the district that has already demonskated proven results in restoring stream flow in Whyohus Creek by reducing irrigation diversions. Mr. Thalacker's letter confirms that Thomburgh could partioipate in this effort by providing funding to offset the creation of 106-acre feet of water for insffeam flow through the conservation project. Thornburgh strongly believes that all potential impacts to surface rvater resources and fish habitat are already completely mitigated under the terms and conditions of Thomburgh'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 $300,000 - and this offer is being made solely to preclude the possibility of application denial on the basis of a finding that the mitigation Thornbwgh has akeady proposed is insuffrcient. If you are persuaded that additional mitigation is required for impacts specific to Whychus Creok in order to meet the county approval standard, Thomburgh can provide such mitigation by participating in the Three Sisters Irrigafi on District proj ect. Sincerely Mar{raO. Pagel MOP:kdo LUBA NO. 2015-LO7 e-1 36 AM EN DED RECoRD L-WA#Wd?D 00379PD)Vt I 2 t 88/138798A40p/284 r 537,3 LUB$E$'{ Exhibit 29 Page 9 of 49 PDF 4OB "t 't, Oregon Water Resources Depart,ment Water Right,s oivision Water Rights APPlication Number G-15385 nHsgt!GEFina1 Ord€r Incorporat,lug S6ttLemeat Agre€ment |t,lAR 2 6 Z00tt{earing and Appeal Rightr Schwabe, Wllllamson & WlatrUnder the provlsions of ORS 537.170 and ORS 537,622, the applicant may request a contested case hearing by submiEting informationrequired for a protest under ORS 53?.153(6) or oRS 531 .62L17't to Ehe Department within 14 days after Ehe d,ate of rnailing of chis order ag shoi'JTr below. If a contesEed cage hearing is reqrrested,the DeparLment must schedule one. In the conEeeEed case hearing, however, only t.hose isgues based on the modificaLions to the proposed final order listed below may be addreesed. ORS 535.0?5 allows for additional appeal rights for otsher Ehancontested caee. This ie a final order in other Ehan a conLestedcase. This order is subject to Judicial review under ORS 1S3.484. Ilny petition for judicial review of this order muet be filed within trhe 60. day time period specified by ORS f83.484(2). This sEatement of judicial review rights doee not create a right tojudicial review of t,his order, if judicial review is otherwlseprecluded by 1aw. Where no changes have been made Lo a ProposedFinal Order on a water right application and no proteste have beenfiLed during the proLesE period, the final order is not eubject toju*icial review. AppTTcailon HisEory On February 9, 2OO5, TIIORNBURqH U?II,ITY GROUP, f,LC. submitted anapplicaEion to the Department for a water use permit. The Department, iseued a Proposed Flnal Order on ,JuIy 25, 2005. TheprotresL period closed Sept,ember 8, 2005. .A,s required by OAR 690-505-051.65, the applicant must submitpropoeed miEigatton that neet,s Eh€ requirements of OAR 690-505- 0510 (2) - (5) . Pursuant to OAR 690:505-0620, a permit shall. not beisaued unE,il the applieant provides documenEary evidence thaEmiLigabion water, in an amount saLisfying the miEigationobligaEion, is legally protected inetream. The applicant subnultted a mitigation proposal to provide 1-197.0aere feet, of mibigat,ion water in Ehe General Zone of Inpacf on an incremenLal basis. On Sept,ember 8, 2006, WaeerWatch of Oregon, Inc., ("WaterWaLcho) submitted a protesB against, t,he Proposed Final Order As of March 22, 2AO7t Wat.erWatch, the applj-cant., and OWRD entered l.uBA NO.2015,107 ) LUBA 2O1s-136 AM ENDED RECORDuSagE06Me9s 02712 Exhibit 29 Page 10 of49 PDF 409 inbo a SeEtlement AgreemenE under which the igsues raised in theprotest, were fully reeolved with regard to this application, A iopyof t,he Sebtl-ement Agreement is aELached hereto and by Ehigreference incor;rorated herein. On i,tarch 22, 2OO'1 , the applicant, through ite agent Martha O. Pagel, of Schwabe, Williameon and Wyatt, submitbed a revised increment.al mitigation plan refleceing the teflnE of Ehe SettlemenE Agreement. Purguant, to Ehe Eerme of the Set.tlernent Agreemenc. a vratef, rightpennit may be issued for up tro 2, i.29 acre-feet per year of waEerfor quasi-municipal use, as foll-ows: TABLE I Ertlmetcd Full Bulld-out Wrtcr Nccdr for PrdLmhuy Plrnnjng Wrtci Ur6 Porl Flor Rrtc crs Aan[rl Yohac Mltlgrdon Obftrtlol rl 11? rl TOTALS 9.)7 2,129 :l lltI rl Pursuant to the SettlemenE AgreemenE. consurrlptive use, and the relaEed rnltigat,ion obligation for each comporrents of the quaei- municipal use is calculated as follows: GolE Course frrigation: During the firsb year of irrigation for each of the t,hree propoeed go}f coursesr applicant may uee up to 3. o acre-feet per acre so long as the boeal volune of waEerapplied in any given year does not exeeed ehe maximum volumeauthorized under Ehe permit or the applicable approved phase of dewelopment under an Lncremental develbpment pIan. After thefirst year of irrigation, the permanent annuaL duty for golf courBe irrigation shall. be reduced to 2.24 aa,re-feet per acre. Consumptive use and the micigation obligation ehall be calculaeedat the rate of 9Ot of the maximum perrnanenE duty. Standard lrrigation; The duty for standard irrigaEion shall be3.0 acre-feeE per acre. The conoumptive uee and mitigationobLigation shall be cal.culated at a rat,e of 60t of the maximum pertnanent duty. Reeeruol-r Maintenance: The consumptive use and mitigationobligation for reservoir mainEenance shal.l be calculaEed at therate of 100t of the annual evaporation rate which is eetsablished,} LUBA NO. 2015-107 LU BA 2019-136 AM EN DED RECORtLUEhfiHOMffig0271t /, Exhibit 29 Page ll of49 PDF 410 aL ?.65 acre-feet Per Year. other Quasi-Municipal; The consumptive use and mitigation oUligaCion for all ocher guaei-rmrnicipal use under the permit shall be calculaLed ab tshe rate of 40t of Ehe maximum annuaf volume auLhorj.zed under the permit. At any tj.rne prior to iseuance of Ehe permit, applicant shall have the opeion t; podify the toEal annual volume oi water authorized for any component oi the quaei-municipal use by submitbing a revised IncremenLal Developrnent PIan, provided that Ehe modLficat,ion doea noE increase the tot.al annual volume of water authorized under the Fina} Order. If Applicant exerciees Ehis option, the water right permit and the rnitigation obligat'ion siall be revised eo iefllcE th- --lified voiumee of waEer, based on the consumptive use rates described above, as applicable. T?re permig sha11 include a condition requiring measuretnenE and r"porting of water uEe, including a breah-down for goLf course iriiga[i6il, along with all oEher terms and condit'ione descrlbed in the Final order. The mitigation conditions, along wit,h oEher condiEions in the attached draft permit, eha1l be contained ln the permiL, wherr issued, for Application G-1"6385. MitigaE,ion obligat,ion: 1,356.0 acre-feet in' Ehe General zone of fmpact (Anl'where in' DeechuEes Basin above the Madras gage, which is located below Lake Billy Chinook. ) Mirigat,ion source: Mitrigation credite or a Mitigatign erojEct.. in accordance wit,h t'he inciemental d,evelopmenu plan on file with the DepartmenE, meeting the requiremenEs of OAR ChaPter 690, Divieion 505 (Deschutsee Grorrnd Water Mibigabion Ru1es). Mitigacion waLer must be legally protected inst,ream for instieam uee within the General River Zone of Impact and commltted for the life of the pernuit and eubsequent cerlifieate (s) , RegulaEiorr of the use and/or cancellation of the permi.E. or subsequent certificaEe (s) , will occur if the reguired mitigation ie not nnintained' The perrnitt.ee ehall provide ad.ditionaL mitigation if the Department deEermines that average annual consumptive uee of the subJect appropriatl-on has increased beyond Ehe originally rnitigabed amount. If nui.Eigat,ion is from a eecondary righg for stored water from a sgorage project not owned or oPerated by the permittee, the use of water under t.hie right ie subject to the Eerme and LUBA NO. 2015-107 ; LUBA 2019-136 AMENDED RECORuupaa&ffiHo271t i Exhibit 29 i Page 12 of 49 i PDF 411 conditione of a valid conErace, or a satisfacEory replacernenE, wiEh the owner/operacor of the storage project, a copy of which rnust be on file in the records of the Wauer Resourees Department prior Eo use of water. FalLure to comply wit,h these mitigat.ion conditione ehall result in the bepartmenb regulaUing Etre grorrnd waEer pernit, or aubsequent certlficate (s) , proposing to deny any permit e:(Eension applicaEion for the ground water permit, and proposing to cancel the ground water permit, or sub€eguent cert,if icaCe (s) . The following sha1l also apply Eo the irrigation conponent of of this application: The amount of water used for irrigation under this right'' logether with the amount secured rrnder any other right existing for the same lands, ie limlt.ed to a diverslon of ONE-EIGHTIETH of one cubic foot per second and 3.0 acre-feet for each acre irrigated during the irrigation season of each year. The permanent, duty of water use for golf couroe irrigation under trhla righE, ie further limiged Uo a diversion of 2,24 acre-feet for each acre irrigated durlng the irrigation season of each year' as provided herein- Order App)-icaeion G-163S5 therefore ie approved with the above modificatrions to the Proposed Final Order, and ae conditioned, will ensure the preservation of the public welfare, safety and healEh. A permlt coneietent with the agtached draft permiE shall be issued only upon submlssion of documentary evidence demonstrating that the appropriate amounE of nltEigaEion water (crediLa or rnitigaEion project), or an alternaEe amount of mit.igation in conjuncEion with a rnodified incremental mitigation development PIa,n, meeting Lhe reguirements of oAR 690-505-06LO(2)-(5), within Ehe General Zone of Impact, hag been obtained and satiefy the first stage of incremental develoBment. Thie final order is issued approving application G-16385 contingent upon t,he required firsb increment of rnitigaCion be-ing provided, before a permie may be igeued. This f inal ordei shaft ex;lire 5 yeare after iseuance gnless the reguired first inerement of mitigation 1e provided. OAR 590-505- 062A (2) . l.; Application G-16385 ig therefore approved ae provided heiein. Upon palrmenE of outstandlng fees in Ehe anrount of S250-00. and upon eubmission of land uEe approval for t'he propoeed use, a permib shall be leeued authorizing the LUBA NO. 2015-107 LU BA 2o1s_136 AMENDED REcoR#ffipfgfg$, Exhibit 29 Page 13 of49 proposed water use. French, edminietraEor RighEs and Adjudicatione Dj-vision I PDF 412 LUBA NO. 2015-107 ."J Failure to meet, this requlremenE within 50 days fro-m the date of bhis Finat order may result, in Ehe proposed rejecEion of the aPPlicat,ion. If you need to requesE additional time, your wrieUen requesE shoilta be recei'tt"d it the Salem office of the Departmenl wichin 60 days of chie F.inal order. Tbe DeparEment will evaluate the requeat and deEermine rqhether or not the reguesb'may be aPProved. DATED t4arch 22 ' 2007 . WatforPhillip C. Ward, DirecBor Qregon Water Regources Departmene ) LUBA 2019-136 AMENDED RECO RDrilf?+Pmfee Exhibit 29 Y@FffiTv H EARINGS OFFICER DECISION FILE NUMBER:247 -18-000386-TP / 4s4-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" BASIC FINDINGS: LOCATTON: 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 1 5-1 2-5000 11800 Eagle Crest Blvd 1 5-1 2-5001 1 1810 Eagle Crest Blvd 15-12-5002 11820 Eagle Crest Blvd 15-12-7700*67205 Cline Falls Rd.* 15-12-7701 67705 Cline Falls Rd. 1 5-1 2-7800*67555 Cline Falls Rd.* 15-12-7801*67525 Cline Falls Rd.* 15-12-7900*67545 Cline Falls Rd.* 1 5-1 2-8000 67400 Barr Rd 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-OOO450-LR (tax lot 7700, four lots of record)' A. B Mailing Date: Tuesday, October 30, 20'18 247 - 1 8 -000386 -r P / 454-SP / 592-M A H e a r i n s1$t$tr bB? g:'f 5 6 A M E UpdA fi _E fi fi Sp" idB ?qgJ'tH Exhibit 29 Page 15 of49 The point of diversion for the Big Falls water rights is located at the confluence of the creek and the Deschutes River ai 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 f'eet per second of flow that would otherwise be diverted from the creek for irrigation *ill re*ain in the creek as an instream water right. This additional flow will be prolcted instream from the authorized diversion point on the creek to the Deschutes River near River Mile 132.8, and downstream in the Deschutes River to Lake Billy Chinook near River Mile 120, a distance of nearly l3 miles' 2. OWRD Mitigation for Phase B/Full Build-Out Mitigation water for Phase B will come first from the transfer of the remainder of the Big Falls Ranch water rights. The locations of the Big Falls Ranch water rights for Phase B mitigation a.e showi on Figure 4. The remaining mitigation water will come primarily from water rights acquired i"ittlin the COID that will be converted into mitigation credit through permanent instream transfers. The COID currently serves a total of upp-"*i*urely 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 .ights usrociated wiih 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 b" p.ot".t.d 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 wate. ,ights outside of tni COID ltr,lcCabe 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. Althougi .u.tt.ont.rvation measures can be beneficial by reducing current diversions of ,u.ful. waters, the practice has been questioned as a means of providing mitigation water to oflset new ground water pltmping' In recognition of these concerns' Thornburgh will not utilize this option' E. SummarY of OWRD Mitigation Plan Implementation of Thomburgh's water right mitigation plan would result in a total of 1,356 AF annual mitigation ui rutt build-out' Approximately 836'82 AF,per year and 5'5 cfs of flow during the irrigation season would come tiom Deep Canyon creek as a result of transferring the Big Fails Ranch water rights to instream flow rights. The remaining PDF 1114 6 L u BA 20 1 s -136 AM EUP/$ fi EfifiSP"6B ?qBJ/Aq Exhibit 29 Page 16 of49 PDF 1115 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 Vi.CuU" 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 52L82 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 l)b. The Big Falls mitigation water offers the additional temperature benefit of providing relatively cool waters f'rom 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 ,ilntr Lo* *re bOtn 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 potentlal impacts of ground water pumping on fish habitat:, First, the potential for flow ieduction due to hy&aulic 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 Ior the impacts of flow reduction as a result of new ground water pumping in the basin. Although th; 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 ttt" 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 LU BA 201 s-136 AM EUPjA,ES fifi$P"idB?q9"1/#Z Exhibit 29 Page 17 of49 PDF 1116 In early correspondence on this issue, ODFW identified concerns about impacts on cold rvater springs and seeps in the Whychus Creek sub-basin as a result of Thornburgh ground watei use, and indicated that the potentially aff'ected 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 io Thornburgh, dated January 31,2008,) Under the ODFW Mitigation Policy, Habitat Category I means the affected habitat is irreplaceable. In response to the letter, Thornburgh provided additional information to ODFW documenting the OWRD frrndings regarding the location of impact from Thornburgh wells in the Main Stem Deschutes River. Additionally, ODFW met with staff from OWRD and the Departrnent of Environmental Quality concerning the potential Thornburgh impacts. As a result of this process and further internal review, ODFW revised its preliminary determination iegarding the type of habitat potentiatly affected by the Resort, conclr.rding the habitat would be classified as Habitat Category 2, not F{abitat 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 cluantity or quality and to provide a net benefit of habitat quantity or quality. OAR 63 5-4 | 4 -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 frndings by OWRD that the Thornburgh project is expected to affect flow in the Main Stem beschutes 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 "nrui" no net loss of habitat quantity or quality and net benefits to the resource: (A) compliance with OWRD mitigation requirements; (B) inclusion of the Big Falls Ranch watei 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 $10,000 in funding to complete an on- going thermal modeling project on Whychus Creek or a suitable alternative enhancement p-:r.,. Collectively, these measures will address ODFW mitigation policy requirements and ensure compliance with the County land use standard. A. Compliance with OWRD Mitigation Requirements 8 LU BA 201 e-136 AM EUPI* t'? EfifiSP"id?FgB"1/Ag Exhibit 29 Page 18 of49 PDF 2077 STATE OF OREGON C0i,ai'fY OF DSSCHU"I'ES PERM]T TO APPROFRIATE THE PIIBLIC WATERS THIS PHRMIT 15 I'IEREBY :SSUED 'Iff 'IHORNBURGH U'],'ILITY GROTIP, LLC ?447 NW CANYON DR REDMT]ND, OR 977 56 ?he speci.fic limits anrl condiEj.ons of the use are ij-sted below' APPLTCF.TION FIIrE NUMBER: G-l-6185 SOURCS0F'WATER:SIXWELLSTNDESCT{UTESRMRBASTN PURPOSE0RUijEIQuASI-MUNICIgAi,usEs,INCLUDTNGIFx.IGA?rnNo}.C]OLF COUF.SIJS AND COMMERCIAL ARE:AS, AND }"IAINTENA$CE OT" RESERVOIR"S' MAXIT'fJM RATS ANN VOLIJMtr; 9,28 CUBIC TTEET PER SECOND' I'IMITEP TO A MAXIMI]MANNUAI,VOLLTI4FIaF2,t2g.0ACREFEETtA}.}.THEP'ATEAbI!voLUME AB.E FURTHER LII'IITED tsY THE COFjqESPONDING MITIGATION PROVTNED' ?HE MAXIFTTJM VOL,I]IViE FOR TIiRIGATION OT 320-O ACRES FOR GOLF COURSES SHALI' NOT EXCEEN ?17.0 ACRE TEET' ITERIOD tfF USE: YEAR R0Lli\il OATE OF PRfORITY: FEBRUARY 9' ?005 WEI,L LOCA?f ON$; 'dELL l-: SE Yr NW !i, SECTIQN 28, T15S, Rl2E' W'M'; 1800 FEE'p $QlrTFi AND ?335 FEET EAST gROIT NW COP.}{ER, SECTTON 28 WIILL 2: SE % M\t 16, SF:CI'ION 29, Tf5S, R128, W'lrf i 1655 FEBT SOUTII AND 2750 FEE" WESI' FROM NE CORNER, SECTION 29 WELL 3: 5W rl SW %, sECTIol.l 21, '1155, R1ZE, W.M'; 1L00 FEBT NORTH ANi] 4OO FEET F]AST TF'O}4 SW CORNER, SECTIO}I 21 WELL 4; NE l/ SE N. SECTIOIi 20, ',IL5s. F.12e, w'M.; 2885 FEET SOUTI{ AND ?5C FEET WEST FR'OM NE CORNER, SECT:ON 20 WFILL5:5Wy4NSy{'sEC?ION20,T15S,R12E,W'M';2590F'0E'IISOUTI{ AND 1860 FEE" WEST FROM NE CORNER, SECTION ?O V;ELL 6: SE % NW d, SECTIgl'tr L?, .t15S, R128, W.M. ; 23?5 irEET SOL]TH AND ]515 F'EET WE$T FRO}I NE CORNER, SECTION ].7 Appi icatlori G-15185 War-el: ilesources DeparLment' PEFlvllt' G:1?036 LU BA 201 e-136 AM EUPI{€-EfifiSBrFffigffi s Exhibit 29 Page 19 of49 PDF 2O7B Page I 'J-HE PI,ACH, OF' iJSE 1' S FEING WI'III]N SR]CTIOI\]Ti }TAN-GE 12 EAST, W ' M. T,hc arrrtlurrt. oi. r"raher r:secl f*r .irr:igaLiort urrc1,:r lhi.t l"igl'rt-, Lcgell:ie:- vrit.lr 1..|r{j amrrUnL ..jei'lrtecl ttl:dst- any r:lft"tr r' iglrr e;"'LSLinq f r:-'r:. l-lre :iatnc lands' ia lj.nril-erl Lci a diversinu *f r;Nfi*EI(;H'lI[Ttt Cf r:ne tru]"ric ft:crI per $ecjrjll'l t]n''l 1.0 ar::r:e*leet rrrr ea*h acr* irli.gaLecl cirrring Lhe j.rrigaeiolr seasun of ira.,:i.t yeitl:. 'fhc ;rtnaul'lt. sf vlal-er usecl lOr gQlf cnurse irrigafitln r'tnder t.irir.; rittill is Ir:rLlter l imif ed [': a qJ:Lversion {Jf ]"24 acre-feee for each cie rf; irriclati+ci iiur.inq t-lte irr:iqat:ion 'qeasnn r:f each year ' MeasurlrrnenL / r'ecordinq ancl repcrling condi Lions : p,. Eef o:e wateluse ma)' beg:'n uncler Lhis permit' Lhe permitree shali inst;:l1 a tuLalizing flarv meler aL each pcii.nL of appropriatlan' ThE Eotaileing f1r:v; meter: nust L:e insCal-led an'l mainLairred in goocl urorki.ng orr]er consistenL wj.tir Cirose standards idl.:nbi f ied in OAR 6S0-50?-645(1)ii-rrouqhts).'Theperrn'ilceeshallkeepaconplete recorrl c:f Lhe anoutrc of waler used each manLh and shall submit a reForI r^rlrich inclur-]es Lhe recorded wsfLer use lneasuremenbs Lo Lhe LtepartmenL annually or more frequenf,ly as rnay be required by Lhe Ltir*ctor. FurLher, Lhe Director may reqirire the pernriLtee to reporL generai waLer use informaLir:rt, including Lire place and natule of use of waLer utldet' Lire Permit' B . l'he perrni. Lt-ee shal l ai iow eh.e waterm.lsLaI' acc[-}ss Co thr: neI ers ; pror;id*ri however. vrhere the rnegers afe located withirr a privale St-rLlCLure , the Wa ter:maSLe:: sha11 reguegt aCCeSS UpAn reaSonable r:ii.:Lice. Use of \,Jal-er unci*r auL.hor.'r-i,y cf this permi.L may i-re r:egulat'ed if anaiysis of qlaLa ava.ilabir: afEer Lhe permic is issuecl cliscloses r-hat Lhe ctppr.JpriaLi,:rr rnrif i ttreasurab].y rcduce cht€l st-t r-f ace water f lows necegsa]:\' t;- maintain rl:e f;-ee-flcwj.nqr cliaracLer trf e scenic waterwa'l- 'iu qr:anf,iLies necessary fnr recreaLiorr, fish and wildlite in effect as of ifr." priority rlate of l-he right or As Ehose quanL,it'ies llla!' be sul:ser.;u,enL1y r-ecjuceci. Hr:wever, Lhe use of ground water ailcwer] uncier l*ire rerms cf this perrnit vri 1l nat i:e sr.rl:jecl to regulaLion f or St:enic waLe:way f lows so leng as rnjtigatirrrt i-s nrainl;iined. GROU}{D WATER }IITI€ATION CONDITIONS iTITHI]\] TF{E EOL'i\IDARIES OF Ti{}i'J'7, 10, 27, 28, 29, AllD 30; HORNBURG}I RUSORT, TOWNSI-IIF 15 SOUTH. t{itigation Obligaci.onr 1356.0 acre-f eeL annual1y in che General tnrpacf (anywirer:e in the Deschutes Easin above thr: Madras qage, on Lhe Deschules River below Lake Biily Chinook') Zone of 1 ucated Wa';er Regources neparLmenl:PEIT.}TIT G_170]6trpi:llcaticn G- l-6I 35 Lu BA 2o1 s-136 AM EUPIA fi5fifiSgidB898"a709 Exhibit 29 Page 20 of 49 PDF 2079 Fage l tulitic1;-rt-.ion Sotr!ce: B{it.ig;t,i-on c::eclirs from a cirartet:.eel rniLigali-on }rank' {:1:- srrl L,.:Lrl': re!?l.iicerrtel1r. ltt:i f: i-gar-ion tiiat rfteets the reclui rerllertt$ oJ- OAR i:9il-505*tiCIl-CI, in *ucorclance wrtir tl* incr.elentaf cieveloptnerrl p1'rll on f|]tlwit-lrLireLlepartnterrL,rneeLingfhereq.rrirernenLst:fOAR{lirapLer{i90.ljvj-sion 505 {neschr'rr-es Grolr"d WJcer MiLiqatic'n Rules} a-nd oAR ChapLer 690 Divi,sion 522, r*iLhir: f,kre General Zane of fmpact- ' Mitigalicnwater'nus[}:elrrqa1ly[}r(}LtjCLedinst:reamfor within utre ceneral zone of tmpar:r and conTrri-l-Led for l-ife and subsegr:enE certif icate (s) ' Reqti'l alion of che cancella|;iori of Lhe pe:-lrrrt', $]i sulrserltrei.lL cerL j'ticaLe {s) il=;;.tir:ec1 nririgarion is not mainLained' .LnsLt:eam use of ihe Permi- l LrBe end/ or will occur if l ! I I I I I I i : If rnicigaLion is frortt a secoadary right for stored water frorn a storage lJxc,ler,:i rrlt, ovr'ecl nr cipet.;rt-ecl i,rv lia" pernri.tLee, flre use <.rf waLer under r--1ri.s rirr!rt, ;.s sub.i !ijt Lc t-he rei:ns anrJ r:ancli.tions of a vali-d conLrac:' e:- a $af, j^sf.ar:t:r:t:y replricentent ' wi i:it t-he owner/apernct'rr of Llre storage Srrn jecl:, a c,:,pv ..,r whit}: must be qrn f i 1.e :!.tt Li.tc. r:ecgl-tls cf t'he WaLer llesclr.rrr:er nepilrLmellt prior Lo use of waLer' ,I.he per.mirLee shall provide addirional mitigaLiorr if the DepartmenL creternri*es thert average annr:al consumpEive use of Lhe sr:b j ecr appr.opri.aLion}:asincreasedbeyonclEheorj'qinallyrniIigatedamcrunt. ThepermiLteeshat].providemiEj.gatj.onpriortoeachstageof Cerrelcpnen; undet rire pern'tit and in accordance WiLh Lhe sLanclardg uncler: 590*505- o6l"0 {?) - t5} . ,l,he pernrittee sha11 ncl increase Lile raLe or anount of waLer diversion bef c,::e increas j.nql the correspondlng rnitigation ' The permi ttee sha L i- seek artd receive ileparLlnenf approval prior Lo ehangirrg tlre incr:ernencal permiE derrelopment plan and ::e1at-ed incrernental inir!.gat'-ir;rr . fhe perm!tt€e shal1 reporL l;o ihe DepartmenL che progress of in-rplernenl-ing Ehe incremental permit clevelcprrrent pl'an anel relaled mrl-igacion 1(-t laLer bhan April- 1af each year' ?his arrnual nacilicatign is noL n€cessary if rhe permiLLee itas completed dewelopment and submiLted a C:laim of Eenef icial Use ta the DeparLlnent' wir-hin five year:s cf permiL issuance, Lhe pertnir-r-ee shall submif a new er rlpdateci Watet Management and Conservaiinrt P]-an purgrlallt- b0 OAR Char:ter 690, Divi-sion B6 ' r\ppl i cat ion G - 1618 5 Wa Ler Resources DeparlnlenL pERl4l'l G- l'/ 0 3 6 L u BA zo I s - 136 AM EUPjA EE fifiSg6B Bgg"ry&[ Exhibit 29 Page 2l of 49 PDF 2OBO Page 4 Faj-1i-:rc E,: c,:nrp1y with L'hese nif':-gafion conditi-ons shall r'esu'lL in Lhe Dei)a{t-rne$i, regrilarint t-}:e qrr:ir'c waLer pe'nriL, or su}-rserluertl- Ceftif icate{s}, prcpcsir:g fo cit*ny arly Ferlnit extens'i'an applicaIion for' Lhe grounel waL€r permiL, lncl propetsing t-c cancel Ei":e grouncl waf,er p*itni", $r subseqr:ent cer Li"f icaL': (s) ' STA}IDARD COND3TIONS Failure to contply with arry of Lhe pravisions of thls in acticn irrci,rJing, but nc'r li'mirerl Eo' reglriccions perralt.ie-s, Dr canc,-+Ilation af Lhe permir' pei-mit lnaY resuiL on Lile lrse, c:rv'l In che nutnl:er, locaLian, seurce, or constructinn of any well deviares {ron Lha[ proposec in L.he permir aF,plicalian or r:equired by permit cr.'trcU.tj,.:ns, this 1:ernr.i.L rnay be sr.i}:ijecL to cance]-1aLion, un1eS5 the ;;;;;;;'"nt autltorj-zes t'he change in writing' If substarrl-i al. ini:-erterence with a senior r'laLer right* oCCurS due t0 wi rhtjr;rlval of '^iaLer f ram any well I isred cn t'his permit' ' then use cf waLer from Lhe well {s} sfratt }:e discontj'nued or rerluced andlor L}':e *.}-,uaure of wilirdrawaL shall be regulated rtnbil r-rr ur:1ess the DeparLmenf apFroves or :mplemenLs an'alberri"ii.t* adrrr.inisC.rative acei-on Lc' miiiqate Lheinl.erference.TheDel..rartmenLencouragesji:ni.or:andsenior appropriatorsr;.ajoinLJ-yderreloppi-anstcmitigialeint-erferences' 'flre v-rr:.1 1s shall !:e constrr.rctr:d j'n accorclance with t-be General SLandarcls ior Lh,; c,xstr.uct-ion and Maj-nf-enance of waLer lrlel. 1s in oregon' The wor:ks shel-l t,e ecluippe,J with a r:sable access port, ana may aise inelude arr air llne an'i pressllre gauge ailer{r:ale r;r decermine water level elevation in c|:e well aL aiL t-iines. WlrerE:Lwo(r]:morewar-erusersagreearnonfJLhernselvesast-oLitentannerofr..at_ion in Ehe us* Of rvaLer enil sirch agreement is placod in wrilitrE ar:d t-ile:c1 by such r.rcrrrJ: LlFr€rs wil:h t-lie Watel:r'tla'gLel:, and SuCh r$tatron SySi€]tn cloes noL rnfringe ulton sr:ch pr'ior rights of arry water user noi a parLy !cl suci: rui.aricn pt-n, itre war.errnasLer shal l disLribut-e Lhe rarater accorcling tcl such aEreenenl* ' Prirrr La receivilg a certiiiq:ate gf wage-r rigirf , Lhe per:nit' ho'l"oer shali subrni t Lp Ltre WaLer l{esources Depa.rlmenl Lhe resul L's of a pump Les I nrecr:i.ng rhe DeparLm€r1f-'5 sLanrla:-cls f or each p*i:rE of appropriai-ion ivre!1), i.rriless in exempl.ion has been oblained in writing uniiet C,AR 690- 21.7. The Fir-ector may requ-ir:e waler*level Or pufip-:est rl.ita every ten '/ea rs Lirererr I rer . This perrnit is for rhe benefi:ial use of wate:: wirhouL $,aFte- the usErisadvisedthalnewregulaci,:nsfnayreguireL}reUgeof ;-.rracrica.l. Leclrnoiagies cr conservai-ion practices Lo achieve this Water F-est:llircEs Depar'Lment PERMTT'G-1?O]5 waier hesL enri . Applicarion G- 16385 Lu BA zo1 s-136 AM EU[X* fi5fifiSP"6??98"e7d8 Exhibit 29 Page 22 of 49 PDF 2OB1 wi r-h thi.sqloals and Paqe 5 water llse must i:e in any 1scal. acknowledgedBy I aw, Llt* ]ar:d use associated r.t:rnpliance r,sit-ir statewide land*use Land-use Plian ' ,t4,iltz.- Thc trsie c,t wateL shall be ljmi-"ec] when it 'interferes wifh any prior surface or grcund water righLs ' Cr)lturleL j.{]p of cr-:itsbrurlr:iern nrtcl applicati orr 6f Lhe wat-er shal1 be made wiLlrin fivi:r ye€rr:] r:f f-htl daE* of pr:rnrit. issuance' ff beneficj'al r:se of p;erlni.tLc-:r.l waLe:: lrar t'tc:t J)ee;r nrade l:efcrr:e this dare, the perrniLLee rnay :l ,ri-}'nic arn a6:llLicati.rn for eXfetrsi*n r-rf tin*, Wlrich lt'ay he apprOVeci hased 1l purl che mer i r of Llre appl ica t- ion - Within orle l.ear after tna)<ing l:eneficial use af waLer, t'he permittee shal1 submic a claim of beneficial use, which inclucler: a nap and report-, prepar*tl by a Certifietl Vrlater Rights Exaniner' This glermit is issued to correctLy describe tl-e nraximum aturuaL volrrme. permit c-1?009, dated FebruarY ?, 2013, ia eu;rerseded by t'his inBtrunent and is of no f,urther force or effect ' lssuerJaprii3,2QL3 /{+ra for Phillip C, Ward, DirecLor Water Resources DeParLrrrenl Application G- 16385 Bas irr i Waier Rescurces Department Vc].uMC 1 DF]SCITUTES R MISC PEITMIT G*\?036 1l- L u BA 20 1 e -136 AM EUPd* fi_E fifiSBidB Fgg"ry&0 Exhibit 29 Hnrribrf? 2. The application to thc BLM addressing the BLM's standards is submitted as BOP, Ex. 3, B-35, to Applicant's CMP application to tlie County. VIII. DECISION: The burden of proof is on Applicant to demonstrate that all applicable approval critena have been satisfied. For the reasons explained above, the Board concludes that Applicznt satisfied all applicable approval criteria. 'lherefore, this application is approved with the imposition of the fbllowing conditions: Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application. All development in the resort shall require tentative plat approval through Title 17 of the County Code, the County Subdivision/Partition Ordinance, and/or Site Plan Review through Title 18 of the County Code, the Subdivision C)rdinance. Applicant shall provide a signed grant of right-of-way from the U.S. Deparfrnent of the Interior - Bureau of Land Management for an access easement connection to U.S. Highway 126,pnor to submission of a Final Master Plan application. Subject to U.S. Department of the Interior - Bureau of Land Management (BLM) approval, any secondary emergency ingress/egress across the Bl,M-owned land or roadways shall bc improvcd to a minimum width of 20 feet with an all-weather surface capable of supporting a 60,000-lb. fire vehicle. Emergency secondary resort access roads shall be improved before any Final Plat approval or issuance of a building permit, whichever comes first. The developer will design and construct the road systenr in accordance with Title l7 of the Deschutes County Code (DCC). Road improvement plans shall be approved by the Road Department prior to construction. All easements of record or right-of-ways shall be shown on any final plat. All new proposed road names must be reviewed and approved by the Property Address Coordinator prior to final plat approval. Plan review and approval of water supply plans for phase I will be required by Oregon Department of Human Services-Drinking Water Program (DHS-DWP) prior to Final Master PIan approval. Applicant shall designate the location of all utility lines and easements that burden the prope(y on the FMP, 10.Applicant shall comply with all applicable requirements of state water law as adrninistered by OWRD for obtaining a state water right permit and shall provide documentation of approval of its application for a watcr right pcrmit prior to approval of the final master plan. Applicant shall provide, at thc time of tentative plaVsite plan 3 4. 5 6 7 B 9 Page 93 of 99 - BOCC THORNBURGH FINDINGS AND DECISION - CASE NO CU-05-20, DC NO.2006-15l Exhibit 29 Bnrrlbrf? 11. l2 13 14. review for each individual phase of the resort development, updatcd documentation of thc statc water right permit and an accounting of the ftlll amount of mitigation, as required under the water right, for that individual phase. At the time of submission for Final Master Plan (FMP) approval, Applicant shall include a rvritten plan for entering into cooperative agreements with owners of existing wells within a two-mile radius of Applicant's wells. The plan shall include a description of how Applicant will provide notice to affbcted well orvners and of the terms and conditions of an option for well owners to enter into a written agreement with Applicant under which Applicant will provide indemnification to well owners in the event of actual well interference as a result of Applicants water use. The plan shall remain in effect for a period of five ycars following full water developrnent by Applicant. Specific terms and conditions of the plan shall be developed in cooperation with County staff and the Oregon Water Resources Depariment. Commercial, cultural, entertainment or accessory uses provided as part of the destination resort shall be contained within the development and shall not be oriented to public roadways. Commercial, cultural and entertainment uses allowed within the destination resort shall be incidental to the resort itself- As such, these ancillary uses shall be permitted only at a scale suited to serve visitors to the resort. Compliance with this requirement shall also be included as a condition of FMP approval. Appliczurt shall specify all recrcational facilities within the proposed resort as part of final master plan submittal. Applicant and its successors shall do the following to ensure that all open space used to assure the50%, openspace requirernent of Section 18.113.060(D)(l) ismaintained in perpetuity: A. Applicant shall submit for approval, as part of the Final Master Plan, a delineation of the Open Space that is substantially similar to the area sltown in l.he Open Space Plan submitted as Ex. 9, B-14 to the "Memorandum of Applicant, in response to public cornments dated September 28, 2005, Open Space shall be used and rnaintained as "open space areas" as that term is used in DCC 18.113.030(L). The CC&Rs, as modified and submitted to the County on December 20,2005, shall be further revised such that, Section 3.4 retains the first two sentenccs, but then the balance of 3.4 is replaced with the following: At all times, the Opcn Space shall be used and maintained as "open space areas," 'I'he fbregoing sentence is a covenant and equitable servitude, which runs with the land in perpefuity and is for the benefit of all of the Property, each Owner, the Declarant, the Association, and the Golf Club. All of the foregoing entities shall have the right to enforce covenant and equitable servitude. This Section 3.4 may not be amended except if approved by an affirmative vote of all Owners, the I)eclarant, the Golf Club and the Association. B Page 94 of99 - BOCC THORNBURGH FINDINGS AND DECISION - CASE NO. CU-05-20, DC NO. 2006-1 5 I _Erhibit 2H$trpbt APR_23_2008 I^IED t]B: 43 AI] CCUNTY COUNSEL 9 9 G FAX N0, 54i 611 4148 P, 14 Cj;rlcrrlnti.rrs clrart !rtClirclccl at pagc 25 iLr Apl:licattt'S finirl Iegitl argLtnrttrt' tJii(ed Jalrtiar';'l' ?-00tr' ir.s sltorttr bclt)rv, 'l'lrc 75 rrrrit.s oloverr:ilhl lorlging.rh<.r*rt in tlre l)ccertrbcr 20' 2005 ovcrnight aircl Di:rtsity (.lrleirlrrtiorrs lat.rlcr to t " 11"t.-t*opr*l in I'lrasc C rvill tctrrally bc devclopcil irr l)ltasc lt, lbr rr totll ol l50rrnilsirrl)he:;cl].'l'licOvcrrrightandl)errsitvCelcLrloticrtlstablcu'ilibccorrcclcdl'oshowthc .50 li'lcd rrnirs rvill l.,e rlcvekrpccl iriPl'rasc D, wltcrc lhc llhasirrg Plott, atlachecl tri tltc l\,lcrrrur-;rnclLrnr ol Applicarrt irr Iirsl:onsc: to Prtbiic Cotntttclrt-s, llx l3, Iteviserl n- l I'i' itlrcrtciy slrr.lws thu lrotcl rvill trc clcvclopccl." Adclition;rliy, the lcgencl in tlrc I'ha.sing Pl:rrr will hru ct')ri:Llctc(l 1{) slro\v hotr:l nnrl Ir:sicictltiiil ovctrtigltt lOdginll usCJ i)l I'hitSC I). Phase Pltase D cL I)AI, F)h a se G 'l'otalsFrITEM Rc.:;idc.rttiaI ._s_! tis lq._!-!11i Ly .( Ft csirt":tt ti;l 0vclrn '"g.llt_ -. . ,N?!ovqgi'rjt! -_ctrl!'t.-!yii_lll[. " () l rtnu!;;tiv0 ()ver'riil't A'n l-ls'r B C 300 150 150 150 300 450 600 150 " 39ro- 1.50 300 R o [- iAi'i 6"Hsi'ic)veinisnt 2O0 2.OO 176 179 109 ?- o0 200 37 Alrl,lir:rurt sSlrll prcscrrt llie c.orrcctcrl l'i:asirtg Platt atrtl Ovc:rttigl'rt ancl l)cnsity Cdctrlations chart, c.iri.sisr.,rt w.iLh ilris conditicrrr, cluring thc Iinal lviastcr lrlau npproval proi:c.ss' r\1:lrlicii.r shall drrr)t.rrrstri,Le c:oltplirrtcc lvith DCC lti.l I1.070(l)) by -srrbrnitlirlg a rvilcllilc i,,itignii,-,,, pt:rrr ,ttr t5c (-.6uniy ils ptrt of its applica[iorr for Iiinal tttastci' plart alDrovitl. 'lhc t.:r:rrrirty shiill c,;ttsirlcl th.:, uvilcllile nritigation plan aL a pr.rblic lrcaLit-t1g r'vitlt thc salnc l)0l'ticil)ato)'y ri5lhrs as lltos:r:;tlltirvc:tl in tlrc CMP approval hctating' 900 47'j 4i5 4;/5 lsst(.)Ntilt l)atcrl rrri, 9il,, f' -_1f-8-r-.,-1, 2008 NOARD OF t)IS I,TJKt.], CIJAIIT 1'AMM C()MN4lSSIONiiltS MIJI-'I'ON, VICIJ C:I IAIII( I l( ccorrlin g Scctel.lrY Ililpe l0 ot. l0 - I)tici*qtoN ot 1'llE l)t.tscl.tu't-l:is (io(INTY ROARD OI" COMMISSIONIiIIS ON RliM^Nt' I,rliOM't'lili ()tt[(ioN t.i\NI) tJSIi BOr\ltI) oI AIPBAI.S'l'ljoliNl]t,rlt(ill - Dc.schr,rtcs L'r>uLrly l)ocr.lnlcnt N'o, 2(l()&'15 I 1s0 '125 0 U 50 63 0 150 150 0 425 47r, 50 s50ILJ 0 50 0 0 0 50 0 0 067. 02113Bsol eool sso 950 475413 725 FILE NUMBER: APPLICANT/ OWNER: APPLICANT'S REPRESENTATIVE: Exhibit 29 Fxhlbif tE DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER THORNBURGH RESORT COMPANY FINAL MASTER PLAN M-07-2; MA-08-6 Thornburgh Resort ComPanY PO Box 2M Bend, OR 97702 Schwabe, Williamson & WYatt, PC Peter Livingston, AttorneY at Law 1211 SW Fifth Avenue, Suite 1600 Portland, OR 97204 REQUEST: il['*ffii5i'':"Aiii.,l.'3i'[fi'Xi?i,",-i3lH::::'S:il'S'[?,i:Si located near Cline Buttes, west of Redmond. STAFF CONTACT: Ruth Herzer, Associate Planner HEARING DATES: 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 DECISION'ISSUED: October 6, 2008 I. APPLICABLE CRITERIA Title 18, Deschutes County Code, County Zoning Ordinance Chapter 18,1 1 3.090, .100, .1 10 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. BA,SIC 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 lndex Map 15'12, as tax lots 5000, 5001,'sooz, iloo, 7701, 7800,7801, 7900 and 8000.1 1 The applicanl 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 29 FxFilb{f +E c. ZONING: The subject properties are zoned Exclusive Farm Use (EFU-TRB)' Tlu subject properties aie also mapped within the Destination Resort (DR) overlay zone for Deschutes CountY. slTE DESCRIpTION: The resort site is located on an approximately 1,970-acre parcel located adjacent to Cline Buttes. This parcel was formerly a large ranci and has a varied terrain which includes rock outcroppings and drainage washes' On the Upper portion of the property there are panoiamic views of the Cascade Mountains' Vegetation fonsists of Juniper woodland with many old grovuth iuniper trees. Three dwellings are located on the property along with the associated roads/driveways. Access to these dwellings is via Cline Falls Highway. suRRouNDtNG 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 tALMl. A central section i.'mdnaged by the Oregon Department of State Lands (DSL). ine 6ppticant has acquired leasJ rights for the -DSL property. Eagle Crest destination resort'ii located close io the northern portion of the proposed development' PROPOSAL: The applicant is requesting Final Master Plan (FMP) approval for the f BiO-"61" destination' resort. The applicant has amended the Final Master Plan abpliiation to include the Wildlife Mitigation Plan as required by the remand decisions tr'# tne Court of Appeats and the Land Use Board of Appeals (LUBA); LAND USE HISTORY: CONCEPTUAL MASTER PLAN: lication was approveO !V-t|g Board of County Commissioners (BOCC) on May 11, 2OOO (file no. CU-05-20)' The decision was "pptifuO to LUBh and portions of that decision were further appealed to the Court of ni,blrft. Goutd v. Deschutes County,S4 Or LUBA 205 (Gould [), rev'd and remanded ZiO Or App 1S0, 17i pX 1017 (Gould //.) These courts remanded the decision back to oescnutes county. The BOCC held a remand hearing o1.M19.lr 19, 2008. on April9, ZOOS, tn" BOCC iigneO a decision that adopted much of the initial decision, and included additionalfindings and conditions. (Gould llt.)The B-OC.C decision on remand w"s "pp"al"d to LUBA, ihich affirmed on-september 11 , V}}8_Gould v- Deschules C;r;ti. or LUBA (LUBA No. 2008-068, September 1 1, 2008), Court of Appeats review pending (Gould lV.) FINAL MASTER PLAN:ffi;tpt Master Ptan approvalwas submitted on August 1,2007 (filg 1o' M-07-Zl. The application was deemed complete and accepted for review on August 31, ZpAl . On September 18,2AO7 the applicanttolled the deadline for a final decision for 45 -ays. On December 14',2008, the ap_plicant again tolled the deadline for 45 days' A n"lii"g was scheduled ior February r'd., zooe, and interested parties were notified of the nearini on January-+, ZOOS. The Fenruary 12, 2008 hearing was canceled at the applicant's request. ln response to the Gould /// decision, the applicant submitted a Modification of nppficition on April 21, ZOOA which re-started the 150 day clock. This application was D. E. F 2M-07-2; MA-08€ 27. 28. 29. 30. 31 32 33 Exhibit 29 Fxhlb{f +E Road width shall be consistent with the requirements set forth in the County's subdivision ordinance, DCC Chapter 17.36. See conditions #38 and #39. Applicant shall abide at all times with the MOU with ODOT, regarding required inilirou"."nts and contributions to improvements on ODOT administered roadways (Agreement Number 22759, daled 10/10/05)' Satisfied. the development Process Satisfied. 34. All exterior lighting must comply with the Deschutes county covered outdoor Lighting Ordiiance per Section 15' 10 of Title 1 5 of the DCC' No permission to install helicopter landing zone (helipad) at the Resort is given or implied by this decision. 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 meetingroomswhichprovideeatingforatleastl00persons.C, The ag-gregate cost of developing the overnight lodging facilities and thJ eating establishments and meeting rooms required in DCC10.113.060(A)(1)and(2)shallbeatleast$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. Where construction disturbs native vegetation in open space areas that are to be retained in a substantially natural condition, Applicant shall restore the native u"t"t"tion. This requiriment shall not apply to land that is improved for redreational uses, such as golf courses, hiking or nature trails or equestrian or bicycle paths, The contract with the owners of units that will be used for overnight lodging by tn" g"nitaf public shall contain language to the following effect: "[Unit Owner] shalimake the unit available to fhoinburgh ResorUbooking agentl for overnight rental use by the general publicat least 45 weeks per calendar year through a central reservation and check-in service." Applicant shall coordinate with the Sheriffs Office and its designated i"di"r""t"tive to address all public safety needs associated with the resort and 35. 36 37 M-07-2; MA-08-6 29 Exhibit 29 Fxhlbif tE Corcoran THIS DECISION IS FINAL UNLESS APPEALED IN ACCORDANCE WITH THE PROVISIONS OF DGC TITLE?z. 3g. The appticant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for managenrent of off-site mitigation ef.forts, Consistent with the plan, the applioant shall surbnrit an . annual report to the county detailing mitigation astivities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject pioperty, and coordination witlr ODFW to model streanr temperatures in WhYchus Creek- 39. The applicant shall provide furrding to cornplete a congelation project by the Three Si.trrs lrriga*on District to restore 106 acre-feet of instream water to mitigate potential increase in stream temperatures in Whychu.s Creek. The appiicant'snall provide a copy of an agreement wittt ihe irrigation district detailing tunOing agreement prior io the completion of Phase A. Dated this 6th day of October, 2008. Mailed fiEedav of october' 2008. M-07-2; MA-08-6 30 Exhibit 29 Ex6ffiftol BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF'OREGON ANNTJNZIATA GOULD, Petitioner, DESCI{UTES COUNTY, Respondent, and TIIORNBURGH RESORT COMPANY, LLC, Intervenor-Responde nt Paul D. Dewey, OSB #78178 Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel.: (541) 317-1993 Attorney for Petitioner Gould LUBA Case No. 2008-203 v ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PETITIONER GOULD'S PETITION FOR REVIEW Laurie E. Craghead, OSB tt92266 Assistant .Lcgal Counsel Deschutes County 1300 NW Wall Street, Suite 200 Bend, Oregon 97701-1960 Tel.: (541) 388-6593 Attorney for Respondent Peter Livingston, OSR #82324 Schwabe, Williamson & Wyatt, P.C. 1211 SW Fifih Avenue, Suite 1600 Portland, Oregon 97204-3795 Iel.: (503) 222-9981 Of Anomeys for Intervenor-Respondent Thornburgh l i II I I I! ! J ) Exhibit 29 Eettlluftol aclecluatc. The County cannot leave to agencies what is necessary to compiy with the County's own standards. Kaye/DLCD v Murion County,23 Or LUBA 452,474-475 (lgg2). 6. The public is again denied the right to comment on thc wildlife mitigation plan. Because of all of the possible variables in rvhat the Appiicant's wildlife mitigation plan may turn out to be, where it might be done, and who might implement it, it is inappropriate not to require public comrnent when the specifics are finally brought to the County- 'Ihe Court of Appeals in Gould II,216 Or App at 159-163, made clear that that is what is required where the actual plan to be irnplemented is indefinite. Just because the Applicant has now done a hypothetisal defailed plan does not get rid of public review for whatever plan is finally to be implemented B. TIIE I{'ISH RESouRCns FINDINGS AND coNDITroNs oF AppRovAL. The Hearings Offrcer also failed to include adequate findingsT and conditions of approval to enswe compliance with the Code standard requiring complete mitigation and no net loss or net degradation of fish resources. The Hearings Oflicer's only conditions of approval related to fish resources state: "38. ...The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Crcek. 39. The applicant shall provide funding to complete a conservation project by the fhree Sisters Inigation District to restore 106 acre-feet of insnearn water to mitigate potential increase in steam temperalures in Whychus Creek. The applicant shall provide a copy of an agreement with the inigarion disgict detailing funding agreement [sic] prior to the completion of Phase A." (Rec. 40, App. 31) 'Ihess conditions are inadequate for a number of reasons. ? Scc also Petitioner's Fourth Assignment of Error which specifically addresses the inadequacy of find.ings where the Hearings Officer has failed to respond to arguments raised by P.etitioner. Page 29. PETffIONER GOIILD'S PETITION FOR REVIEW Paul D. Dcwey, OSB #7E178 lS39NWViclcbu€ Bctt{Opggn 97701 (541) 317-1993 Exhibit 29 Effltruffr 1. The Applicant's mitigation plans are not identified, found to establish compliance or even required to be done. Unlike with the Applicant's wildlife plans (where the Ilearings Officer in her conditions of approval at least attcmpted to identifu the plans to be followed), the Hearings Ofhcer did not identi$, any fish mitigation pians or require compliance with them in her sonditions of approval. Any plans reiied rrpon must be required in oonditions of approval. [t cannot just be assumed that everything mentioned in a land use application will be done. See tlic discussion in Central oregon Landll/atch v Deschutes county,53 or LLJBA 290, 305-307 (2007). She also made no findings of compliance with the standards for fish resources, other than just saying that the OWRD mitigation requirement addresses water quantity and that additional mitigation is needed for water quality on Whychus Creek. (Rec. 34, App. 25) She made no findings on water quality for the l)eschutes River or on impacts to fish species in Whychus Creek and the Deschutes River. 2. No Whychus Creek mitigation for stream temperatures is required to be done. As discussed above, the proposed condition of approval on Whychus Creek is meant to correct an increase in stream temperaturcs. However, the acfual condition of approval which adds warm irrigation surface water actually doesn't address the mitigation need. The condition also does not require that the mitigation actually be done by the inigation district. It only requires funding and an agreement on funding. (Rec. 40,-App. 3l) 3. Actual mitigation from Big Falls Ranch water is not required. The Hearings Offrcer explained that the Applicant argued that groundwater impacts to the Deschutes River would bc mitigated by the acquisifion of "irrigation water rights that will return water to Deep Canyon Creek." (Rec. 34, App. 25) She also concluded that there is substantial evidence in the Record to support a finding that the Applicant has the authority to use water from Deep Canyon Creek. (Rec. 34, App. 25, n10) The Hearings Officer notes rbat "[t]he applicant Page 30. PETITIONER GOULD'S PETTTION FOR REVIEW Paul D. Dewey, OSB #78178 1539 Nl[Viclsburg Bad, Oregon 9770I (541) 317-1993 .i : l -; Y ii I I i ) ,ti *lt::i I I j i 6.i Exhibit 29 Esttlfsftol Proposes to obtain 836 acre-feet from Deep Canyon Creek inigation rights that rvere grantcd to Big Falls Ranch." (Rec. 32, App. 23) Despite these determinations, the Hearings Officer provided no condition of approval actually requiring that the necessary water be returned to Deep Canyon Creek, or finding that it is feasible to do so-8 Aiso, though the Ilearings Officer states that removal of dams will be necessary (Rec. 32, App.23),she fails to require such rcmoval as a condition of approval. 4. No condition requires actual mitigation by Central Oregon Irrigation District water. Despite the fact that the Hearings Officcr finds that Centml Oregon Irrigation District ("COID") mitigation water "is to be obtaincd" (Rec. 32, App.23), there is no condition of approvalrequiring its acquisition or use. Therc is also no finding of feasibility. As discussed in the F'ourth Assignment of Enor, the Hearings Officer also failed to address an issue raised by the opponents regarding whetherthe COID water would be available. VIII. F'OURTH ASSIGNMENT OF ERROR The llearings Officer failed to adequately address specific issues raiscd by Petitioner on inadequacies of fish resource mitigation. The Hearings Officer encd in failing to address with adequate findings several key issues which Petitioner raised regarding impacts to and proposed mitigation for fish resources. It is a basic requirement that a decision-maker address the issues raised in a proceeding. LeRottx v Malheur Counfit,30 Or LUBA 268,271(1975). Adequate furdings must address a party's evidence and issues. Central Oregon ktndWatch,53 Or LUBA at 313. I It is uot an aniwcr to the lack of a showing of feasibility and conditions of approval for the Big Fails Ranch and COID mitigation water that OWRD will be requiring mitigation for groundwater permits and th-at no legalimpedimeut is shown to a OWRD determination. OWRD will be requiring mitigation, but not neceFsaily thismitigatio[ which is being proposed here specifically for fish and wildlife mitigatio4 ttotlutt tu *tisry OffiOrequirements. OWRD will be rnaking no determinaions to satisfo these county fish and wildlife standards- Page 31. PETITIONER GOULD'S PETffION FOR REYIEW Paul D- Dewen OSB #78178 1539 l'w Vicksburg Bcn( Orcgon 97701 (s4l)3t7-1993 Exhibit 29 Eerllfdftol consequences ofreduced groundwater inputs, specifically the reductions ofcool habitat patches and of the coidest water in the affccted sFeam sections at tliat time of year. This is something about which I gave oral'testimony in Bend on I5 July. As was described in that testimony, TIEC's mass-balance analyses are aI a c{)arse spatial scale that obscures these localized effects because the thennal consequences of Thomburgh-related reductions in groundwater inputs are being examined only after the cold groundwater has fully mixed with warmer water- The analyses do not account for the value of the cold groundwater, and the size of associated cool habitat patches, prior to sucli mixing. Per page l0 of my memorandum of 15 July (l{untington 2008), logic embedded in mass-balance analyses described by'IIEC (2008d) suggests that the Thornburgh Resort's impact on cool habitat patchcs within the affected sections of the mainstem Deschutes would bc to rcduce existing patches by about 0.6%. The significance of this cffcct would be expected to increase as additional groundwater pumping within areas contributing to the affected sections of stream accumulated." (Rec. 1080- l08l) (Original emphasis.) The Applicant never provided a response to this cool patch habitat impact issue and the Hearings Officer did not address it in her findings. AII that was addressed by the Applicant was thc ovcrall blended water ternperature that would result from the Applicant's proposed mitigation, not the loss of this spccific habitat. 3. The Hearings Officer did not address Petitioner's arguments that COID water would likely not be available for mitigation. As discussed above under the Second Assignment of Error, the llearings Offrcer made no finding of feasibility and did not include any condition of approval requiring that proposed COID mitigation water actually be available and used. Petitioner specifically questioned whether the COID water would be available given that it was apparently conditioned on whether or not irrigated COID lands would be included in the proposed expansion of the Bend urban growth boundary. Petitioner argued that that was not a likely scenario given that inigated farmlands are a low priority for UGB expansion, (Rec. 1424) Page 34. PETITIONER GOULD'S PETffION FOR REYIEW Pau[ D. Dewey, OSB #78178 1539 NW Vicksburg Bcn4 Orggon 97701 (541) 3 r?-1993 Exhibit 29 ANNUNZIATA GOULD, Petitioner, v. DESCH Zg Or LUBA S6r (Or Luba), zorg WL 1go5o37 Land Use Board of Appeals State of Oregon ANNUNZIATA GOULD, Petitioner, vs. DESCHTITES COIINTY, Respondent, and CENTRAL I-AND & CATTLE CO., LLC,Intervenor-Respondent' LUBA No. 2018-140 REMANDED June 21, zo19 Appeal fi'om Deschutes County **l 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. e) WESTLAW ,,:.;);:il?.r Jl:ccisq;n R**t*r-* i\'jc cieir;: l* *r:c;irilj r.i S Gr:t:*:"i.:r-r':*l:l i"{1*tks Exhibit 29 ANNUNZIATA GouLD, Petitioner, v. DESCH urESPdg8rJ.6l'f 4 9201 e) ZAMUDIO, Board Member; RUDD' Board Menrber, participated in the decision. RYAN, Board Chair, did not participate in the decision' l l,l.l 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 tlestination resort proposes a different pace of development than the final master plan, such as by sub-phasing development, does not materially nffect the fintlings of fact on which the final master plan approval was basetl so as to constitute a "substantial change" to the final master plan, thereby requiring a new application, where neither the final rnaster plan nor applicable regulations require that all development authorized in the first phase of the final master plan occurs at the same time' 2. Ll.l Administrative Law - Interpretation of Law - Generally' 30.4 Zoning Ordinnnces - 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. consumecl by the resort with a quantity and quality of water that will maintain fish hatritat in an impacted stream, the fact that the tentative plan for one phase of developnrent modifies the timing, but not the overall amount' of the mitigation water required to be provided does not rnaterially affect the findings of fact ou which the final master plan approval was based so Rs to constitute a o'substantial chRnge" 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 "lalny negative impact on fish antl wikllife resources will tre completely mitigated so that there is no net loss or net degradation of the resource,'o where a proposed resort,s consumptive use of groundwater is anticipated to impact the quantity and quality of water in an olfsite stream, and where the applicant's final master plan inclutles 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 nray 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 challe.ges a decision by a county hearings officer approving a tentative plan, site plan review, and site platr review application modification for phased development of a destination resoft. W€sTLAW . .',-:.':;,,-',: :::;:ll';:1:r;1 ::.':l'""":'j :i: :ir'! :ri ir''::'::i':ii;l!':rii!:'i1'11 :'1 ;: Exhibit 29 ANN uNzlArA GouLD, PetitioneL v. DESCHUrEsPdggSlqdf 4 801 e) REPLY BRIEF Petitioner moves to file a reply brief to respond to lrew rnatters raised in the response brief filed by intervenor-respotrdent Central Land & Cattle Conrpany, LLC (intervenor). Interyenor does not oppose the reply brief and it is allowed. FACTS A destination resort is a "self-contained development providing visitor-oriented accontmodations and developed recreational facilities in a setting with high natural anrenities." Oregon Statewide Planning Goal 8 (Recreation); see also ORS 197.445 (providing similar destination lesort definition). Local governments may plan for the siting of destination resorts ol1 rural lands, srrbj ect to the provisions of state law. I d.; ORS I 97.43 5 - 197 .467 . A destination resort may include residential dwellings, but the number of residential units is limited by the nurnber of visitor-oriented overnight lodging units (OLUs), as explained further belor,v. In 2006, the county apploved the Thornburgh Resort conceptual mastet'plan (CMP) and, in 2008, approved a final master plan (FMP). Those approvals were ultimately upheld after multiple lounds of appeals. This case is the eighth tirne that this land use dispute around the proposed Thornburgh Resort has been before this Board. We last sunrmarized our prior cases in Gould v. Deschtttes Counttt, TS Or LUBA I I 8, I l9 (20.l 8). A general sul.nmary of those prior appeals is Itot 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 ttse and rnapped within the destination resort overlay zone. The property was fornterly used as a large ranch aud is surrounded by public land managed by the US Bureau of Land Managenrent (BLM) and Oregon Departtnent of State Lands. The FMP provides for phased developlnent 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 ceuter, a spa and fitness center, and swimnring pools and associated structures. Planned visitor-oriented facilities will ilclude restaurants, convention facilities, business center, art gallery, and cultural center. The resort will include approxinlately 1,293 acres of open space, (approximately 660/o 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 developrnent of transportation infrastructure, golf course, restaurant, meeting facilities, opelr space,300 residential units, and 150 OLUs, with the first 50 OLUs to be constructed before any sale ofresidential lots, and financial assurance (bonding) for another .l00 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 ofdevelopment. Intervenor requested approval ofa tentative plan for a portion of the approved Phase A, calling the partial subphase "Phase A-l," r,vhich includes a tentative subdivision plat for 192 single-fanrily residential dwelling lots,24 single-family deed restricted OLU lots, and l3 OLU lots, togetherwith roads, utility facilities, lots, and tracts for future tesort facilities and open space. Intervenor also applied for site plan review for a well, well house, purnp house, reservoir, and sewage disposal. In this decision we refer to the approvals, collectively, as the tentative plan or TP. Record l55l . The county hearings officer approved with conditions the tetrtative plan for Phase A- L This appeal followed. FIRST ASSIGNMENT OF ERROR In the first assignrnent 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 ANNUNZIATA GoULD, Petitioner, v. DESCH UrESPdggSSBdf 49P01 e) A. Overnight Lodging Units A destination resort l.nay include residential units, lirnited by the number of oLUs. l A destination resort cMP nrust include a mechanism to *565 ensure a minimum of 150 oLUs, ancl a maximunr ratio of 2.5 residential units fol each oLU (oLLI Ratio).DCC 1g.113.050(BX2l).2 Thefirst50OLUsmustbeconstructedpriortotheclosureofsales,rental,orleaseofany residential dwelling or lot. DCC 1g.113.060(AXlXa). At least 50 of the rernaining 100 required oL(ls must be constructed or guaranteed thr.ough surefy bonding or equivalent financial assurallce 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(AXl)(b). The rnaximum 2.5:l OLURationlaynotbeexceededatanyphaseofthedevelopntent.DCC 18.113.060(AXlXbxiv). Iftheresortdoestrotphase development of the oLUs, then the required I 50 oLUs must be constructed prior to the closure of sales, rental' or lease of any residential dwelling ol lot. DCC I 8.1 13.060( AX I Xc)' In the FMp phasing, phase A involved the developrnent of 300 residential units and 150 OLUs for a2'0 OLU Ratio' Record 4,61 ,63.FMp Conditions of appr.ovat 2l and 33 required 50 oLUs be corrstructed in the first phase of development alld al'l additional 100 OLUs be constlucted or bonded.3 *566 I The FMp provides that the approval was "based upon the subrnitted plan," and that "[a]ny substantial change to the approved plan will require a new application." Record 217 .DCC I 8. I I 3.080 provides that any substantial chatrge proposed to an approved cMp rnust be reviewed in the sarne manner as the original cMP.4 "substantial change to an approved cMP, as nsed in DCC 1g.l 13.0g0, lneans an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that fi ndings ofJact on v,hich rhe ot,iginal approt,al tuas based tl ould be materiatty aflected." DCC I 8.1 I 3 '080 (enrphasis added). The hearilgs officer reasoned that DCC I 8.1 I 3.080, which applies to changes between the CMP and FMB provides guida.ce for evalnating whether the tentative plan confornrs 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- I is not approved by the CMP and FMP, and that subphasing is a substantial change to the approved plan. **4 *567 phase A-l provides for division and development of 192 residential lots, division of 37 lots for approximately I l0 oLUs, and bonding for approximately 40 oLUs, for a 1.28 oLU Ratio (192 RUs to 150 oLUs). Record 63. The hearings officer fonnd that the different pace of development (subphasing) in Phase A-l did not rnodif, the FMB because the FMP and applicable resort regulations do not require all development authorized in Phase A occur at the same tirne and that the different pace of developrnent does not affect the material facts or compliance witlr 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 petitio'er has ,ot established that the different pace of development in Phase A- l 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,.o residential lot can be sold or rented until the oLU requirements are satisfied. This is consistentwith the FMpandapplicableregulations.ThehearingsofticerdidnotmisconstrueapplicablelawinconcludingthatPhaseA-l didnot materially affect the FMP approval for phased development of oLUs. petitioner argues that the decision is based on inadequate findings because no part ofthe plan for Phase A-l shows how the first 50 oLUs will be constructed. Irrtervenor responds, and we agree, that it may obtain approval of a tentative plan without providing details about the oLU constrnction. The residential units rnay not be sold, leased, or rented r'rntil 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 *56g lots will be developed to provide the oLUs and recreatioual amenities. Record 1562' WESTtAITJ Exhibit 29 AN N u NzlArA G o u L D, Petiti one r, v. DES c H u rEsPdgg*gElf 4 9201 e ) petitioner argues that the hearings officet erred in approving the tentative plan because the plan does not describe the oLU structures in sufficient detail to establish whether they qualiff as oLUs as defined in DCC 18.04.030. See n l. Petitioner atgues that the proposed otvnership, location, and design of the OLUs factor itrto 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 Gottlcl t. Deschute.g County,54 Or LUBA 205,232 ret,'d ancl rem'd on other grounds,2l6 Or App 150' l7l P3d l0l7 (2007) (Gotrld CMp II),we reasoled that the resort CMP proposed construction of 50 cottages with lockout facilities (to ensure l50 separate rentable ulits are available within the first phase) satisfied DCC l8.l 13.050(BX8), which requires "A description of the proposed order and schedule for phasing, if any, of all developrnent including an explanatiott of wlten facilities will be provided and how they will be secur.ed if not completed priol to closu|e 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 detaited 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 resolt cases that we have referred to as the Cctldera cases. See Central oregotr [.unrlvutch t'. l)eschutes Cottttry,74 Or LUBA 540 (2016) (Culdert 11. ret.,tl rrnd renrcrnclecl,2g5 oL App 267.396 pid 968 (20 l7l (caldera ll); central oregon Landtvatch v. Deschutes county,76 OTLUBA 6(2017)(CalderallD.Tl-reCalcleracasesconcernedanexpansionofanexistingdestinationresortcalledCaldera 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 offfrom 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 1,74 Ot LUBA at 544' on appeal, the petitioner argued that the lock-off roorns ir.r the existing resort could uot be counted as separate oLUs. The inter.venor responded that argument was an impermissible collateral attack on the existing resoft 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 satisff the overall OLU requirement for the expansiorr was not an impermissible collateral attack on a prior decisiou because the challenged *569 expalsion approval criteria, DCC 1 8.1 13.025(8), requiled the county to deternrine that the entire resort ./izcitity,including the existing facilities, satisfied all the requirements for a destination resoft. Ccrlclet'a 1,74 Or LUBA at 552.6 The Court of Appeals affirnred that part of our decisiort. Coldera 11,285 Or App at 282. On the merits, the intervenor in Caltlera invoked Goutct CI,IP il.54 Or LUBA 205, arguing that we had approved inclusion of similar lock-offrooms in the calculation of oLUs in that case. We explained that the petitioner's challenge in Gottld CIVIP 1/ was narrow--the petitioner had argued to us that the fact that the OLUs could be converted to residential units in the future r.equired denial of the cMp. In Calclera I we explained that, in Gould CAIP II, no party argued that the proposed lock-offunits did not qualif, as OLUs. (taldera I, 74 Or LUBA at 552-55 . I, Calclera I we deternriled that the individual lock-off rooms do not qualify as OLUs under the statutory definition in ORS 1g7.435(5xb). See n l; caldera 1,74 Or LUBA at 552-55. The Court of Appeals reversed and renranded out'decision on that statutory inter.pretation issue. C'aklera /1. 285 or App 267. Ultimately, we remanded the decision to the county for further findings. Caldera III,76 Or LUBA 6. As an irritial matter, lhe Caldera cases do not provide a definitive rule regarding rvhat type of rentable accomnrodations satisfr the OLU definition. Instead. the Caltlera cases concluded that whether an accommodation meets the OLU definition reqttiles afact-specificinquiry.Thus,the Calcleracasesdonotprovideageneral rulethatlock-offaccomrnodationscannotqualifras OLUs. **6 *570 Second, and more importantly, this case is distinguishable from the Caldera cases oll the issue of collateral attack. The Cctlderct cases involved the review of a CMP for a resort expansion, and specific resort expansion criteria reopened the issue of whether the lock-offroorns in the approved resort qualified as OLUs. Differently, the challenged decision in this appeal WESTLAW Exhibit 29 A N N u NzlArA G o u LD, Petitio ne n v. DE s c H urESPd€g r4$qdf 4 901 e) is a tentative plan under an approved CMP/FMP. Even if the Caldera cases controlled the issue of what type of accornmodations qualify as OLUs, the tentative plan approval could not violate the Caldera cases because the tentative plan approval does uot 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 frorn the CMP approval in Gould CiVIP 11. That issue is settled, unless and until the resort seeks approval from the county to modifu the design of the required OLUs. See Scrfetval,, [nc. v. Ci1t 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 lesolved 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 orr 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 irr approving a tentative plan that did not include detailed plans for the cottages that will plovide the required OLUs. B. Visitor-oriented Recreational Facilities In addition to establishing conrpliance with the FMP, each development phase of a destination resort must receive additional approval through site plan review or the subdivision process. DCC l8.l 13.040(C). 7 Petitioner argued to the hearings officer' that the tentative plan failed to provide infornration 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 accotrrpanying materials": "5. Location, approximate area and dimensions ofany lot or area proposed for public use, the use proposed, and plans for improvements or developrnent thereof; 6. Proposed use, location, approximate area and dimensions of any lot intended for nonresidetttial use." DCC I 7. I 6.030(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 anrenities, restaurallt, and nteeting facilities. Intervenor responds that DCC 17.16.030(C) provides application submittal requirerrrents but does not constitute approval criteria. Intervenor argues that petitioner has not established that the absence ofspecific information reqttired by DCC 1 7.16.030(CX5) and (6) results in noncompliance with any approval criteria. **7 Interenorrelies onContey.Cityof Eugene,TSOr LUBA289(2018), alfd,295 OrApp789,434 P3d984(20 l9).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 developrnent (PUD) approval. The tentative plan apploval irnposed a condition, Condition 20, to ensure that the PUD provide "safe and adequate" transportation systelns to nearby areas as required by the city's code. 1d (slip op at 4). The petitioner argued that the intervenor was required to subrnit new or amended ""final nraps and supplernental materials" as supplements to its final PUD application. /d. (slip op at 9). Similar to petitioner in this case, the petitioner in C'onte invoked an application reqnirements for a final PUD that requit'es applications contain, among othel' things, final maps and supplemental materials to demonstrate cornpliance with tentative plan conditions of approval, including evidence that all required public improvenrent have been completed or fitrancially assured. The city hearings officer observed that the applicatiorr requirements are not approval criteria, "and that the failure to satisfr application lequirements can only serve as a basis to deny an application if the required information is necessary to demonstl'ate cornpliance with an applicable approval criterion." Id. (slip op at l0). The hearings officer also concluded that rnaps and supplemental drawings are ltot required to be submitted in order to demonstrate that the final PUD plan conforrns tvith the tentative PUD plan and all conditions. The hearings officer observed that Condition 20 required the *572 street improvemetrt Exhibit 29 AN NUNZIATA GouLD, Petitionei v. DESCHUTESPd€p4? qdf 49201 s) be completed ..[p]rior to occupancy" rather than prior to final PUD approval. fu/. we affirrned the hearings officer's interpretation of the city's final PUD submission requirements' our r.easoning in Conterequires the same result in this appeal. DCC 17.16.030(c) requires that certain information be provided in an application tbr atentative subdivision plan. I 8.1 13.040(c) reqnires that "[e]ach + * * developtnent phase ofthe destination resort mnst receive additional approval through the required site plan review (DCC I 8.124) or subdivision process (DCC Title l7).,,petitioner has .ot explailed how, absent the information required by DCC 17. 16.03O(CX5) and (6), approval of a tentative plan rvould violate sonre portion of the destination resort approval criteria or the FMP. The FMP requires that the recreational amenities. restaurant, and meeting roonr facilities be plovided ol bonded before the sale of lots' S'ee a/so 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). petitio'er has 'ot denronstrated that the violation of the subnrission requirenrents cotrtained DCC 17.,l6.030(c) resulted in no'-compliance with at least one mandatory approval criteria. we agree with inventor that petitioner's argument trnder DCC 17.16.030(C) provides no basis for reversal or remand. See Le Roux t. l,[ctlheut Cotrnty,32 Or LUBA 124' 129 (1996) (the fact that application requirernents may not have been satisfied provides no basis for remand unless the failure to satisfu the requirenrents resulted in noncompliance with at least one nrandatory approval criteria). Like Conle, where the required street irnprovenrents lvere required to be completed "[p]rior to occupancy" ratlrer than prior to final PUD approval, it appears to us that subsequent application and review for the resorl development will ensure compliance with the subdivision and FMP requit'etnents. **8 The first assigumetrt of error is denied. SECOND ASSIGNMENT OF ERROR ln the second assignment of error, petitioner argues that the approved tentative plan violates mitigation requirements for irnpacts of the development on protected fish and wildlife resources. To satis! destination resort approval cliteria' itltewetror is required to derrro'strate that..falny negative irnpact on fish and wildlife resources will be cornpletely rnitigated so that there is tro tret loss or net degradation of the resource.,, DCC I g. I I 3.070(D). The resort's impact on fish and wildlife, and the elficacy of required rnitigation, was litigated over the course of rnnltiple prior appeals, as we explain edin Gouldv *573 Deschutes county,78 or LUBA I I g (20 I g). We have referred to the DCC I 8. I I 3.070(D) standard as the "no net loss/degradation" standard' /d' Ir"r Gottld t, Deschutes (,outrly,216 Or App I 50, I 7l p3d I 0l 7 (2007), the court of Appeals held that the couttty's deternrinations on wildlife irnpacts and mitigation wele inadequate to satisf, the applicable cliteria for the CMP. The FMP includes a tevised 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 rnultiple rounds of appeals, and ultimately upheld in Gould,Tg Or LUBA I 18. In this appeal, petitioner does not challenge the rnitigation plan, but instead challenges the Phase 1-A appr.oval 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 rvater supply rvill be groundwater obtained fronr six wells on the property. The applicant obtained 2,129 acre-feet of water rights to support the resort development year-rou'd.8 Th. or.gon water Resources Department (owRD) granted the watel right upon finding that interuenor is responsible for providing 1,356 total acr.e-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 Distlict (colD)' 9 *574 The resort,s consumptive use of groundwater is anticipated to impact an offsite fish-bearing stream, Whychus Creek, by reducing i'streanr water volurnes and increasing water temperatures. The mitigatiotr plan requires intervenor to replace the Exhibit 29 AN NUNZIATA GouLD, Petitioner, v' DESCH urEsPdgg'49q$f 49201 e) water consunred by the resort with volumes and quality of water that will maintain fish habitat, especially cold water thet'mal refugia. The county found thatthe mitigation plan will result in no net loss/degradation to fish and wildlife resources. l. Sub-phasing The mitigation plan requires inter.venor.to provide in-strearn mitigation water ""in advance for the full amotlnt of water to be pumped under each phase of developrnent," 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 ColD were identified as sources of the mitigation water. Record 66 l. The inrpact of tlre resort water use on therrnal refugia for fish was central to disputes in priol'appeals. see Gould,78 or LUBA I l8' **g petitioner argues that sub-phasing phase A irnpacts 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 r.eview, or an application for a modification of the FMP. Petition for Review 42. Interverror responds, and we agree. that the nritigation plan was not specifically tied to or dependent upon the stages ofphased development approved in the FMp. Instead, rnitigation is planned to occru'as developrnent occul's. FMP Condition l0 r'equires interyenor to subrnit documentation that rnitigation and a water rights permit has been issued for each developlnent phase' See n 9. We do not read that condition to require the specific phasing stages approved in the FMP. Instead, we agree with inte.enor that because water mitigation is based on consumptive use, tlre condition requires proof of adequate water rights and mitigation col.l.lulensurate with the estimated consut.trptive use of water fof the development approved at each phase of development, and in advance of actual watel consumption. While intervenor ultirnately bears the burden to establish that the resort development will result in no net loss/degradation to fish and wildlife resources, petitioner has trot *575 argued or established that subphasing rnaterially affects the findings underlying the mitigation plan for phased development. The hearings officer did .ot 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 20 l g, OWRD approved a change to an OWRD perrnit related to the incremental developrnent plan (lDP)' l0 Petitioner conte'ds 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. I I Re.ord 659. Petitioner argues that the IDP reduces mitigation watel in Phase A from 610 AF to 203 AF, with 50 AF to be provided as parl of Phase A- l , 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 rnodif,i the overall an.loultt of mitigation water required to be provided in the mitigation plan but, instead, modified the timing of r.vhen the mitigation water rvould be provided based on consnmptive use. Record 67-6g. The hearings officer reasoned that the rnitigation plan and lelated IDP "provide a framework for esti'rating use, consumptive use and mitigation, but were not intended to lock in a cerlain development paftern or timing'" Record 6g. The hearilgs officer observed that the lecord contained "r.ro evidence that modi0ing the IDP to reflect the current resort development schedule in apy way impacts the efficacy of mitigation and [intervenor's] expet't's testimony is that itwill not. To the contrary. there is evidence that the longer timeframe for water consumption will result itr more gradual, spread ottt i'rpacts.,, Recor.d 6g. The hearings officer fonnd that the tentative plan for Phase A- I refinement to the mitigation plan regarding timing of mitigation is not substantial. ^Id **10 petitioner ar€ues that the changes to the mitigation plan require intervenor to apply fol a nlodificatiorl to the CMP/FMP to iustifu the changes. petition for.Review 50. Holvever, petitionel has not established that any finding of fact on which the original Exhibit 29 AN NUNZIATA GoULD, Petitioner, v. DESCH UrESPdgg45Bdf 4 901 e) approval was based would be materially *576 affected by the alteration in rnitigation water tirning, which remains attached to consumptive use. Accordingly, petitionerrs argument regarding the tirning of mitigation provides no basis for remand. The mitigation plan provides that'lnitigation must be provided in advance for the full arnoutrt of water to be puntped uttder each phase of development." Record 65. "The mitigation obligation for Phase A is 610 AF, equal to consumptive use. Maxintum water use for Phase B is 2,129 AF pel year (fLrll build-out, including Phase A use)." Record 66 I . FMP Condition l0 plovides: "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 antount of mitigation, as tequired under the water right, for that individual phase." Record 2l 7. ln an attempt to demonstrate cornpliance with FMP Condition 10, in nraterial subrnitted in supporl of the application in this proceeding, intervenor stated, ""the full amount of the mitigation that will be lequiled by this TP is approximately 50 acres of water'[,]" and "the arnount of rnitigation that will be required for the entirety of the Phase A development, including nunrerous elenrents to be applied for in subsequent site plans, is 203 acres of mitigation." Record 997. Befole the hearings officer, petitioner argued that amount of mitigation was inadequate to satisf, the FMP mitigation lequirement. Intervenor responded with expert opinion that the proposed subphasing would spread water irnpacts over a longer period, but that the overall amount of mitigation would not be changed and must provide mitigation water itr advauce 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, petitionel does not assert any pt'ocedural ellol with respect to that evidence. The hearings officer agreed with petitionel that the approxirnately 50 AF refers to the water use fot' 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 frorn 6l 0 to 203 AF fot' Phase A and changed the tirning fi'om in advance ofeach phase to aftel'construction. Id. Nevertheless, the hearings officer found that the change or refinement in the mitigation plan is not a substantial change because the required rnitigation plan requires rnitigation for use of water and, "if there is no water use, there is uo irnpact." Record 67-68. The hearings officer observed *577 that the record contairred no evidence that modif,ing the mitigation to reflect the cument resort development schedule in any way irnpacts the efficacy of rnitigation and the only evidence in the record is that "the longer timeframe for r,vater consuntption will result in more gradual splead out impacts." Record 68. ** I I Petitioner argues that, even if intervenor could alter the mitigation plan without an application modification approval, as we have concluded, intelenor's proposed 50 AF of rnitigation water for Phase A-1, will cover consumptive use of rvater for 192 residential dwellings, but does not include consunrptive use of water for the OLUs and other uses required to be provided in Phase A- L Petition for Review 5 I . lnterverror responds that that it has not reqnested, and the county has trot approved, any reduction in required mitigation. IItstead, interyenor contends that the 50 AF consurnptive use for Phase A-l was provided as an estimate to satisff the information requirenrent of FMP Condition 10, quoted above. Intervenor concedes that the 50 AF estimate does trot include the OLUs proposed to be developed in Phase A-1. Intervenor argues that omission does trot 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- I . Response Brief 40-4 I . We agree with intervenor that the challenged decision does not approve a reduction in the mitigation rvater or modifu the requirement that mitigation water be provided in advance of water consumption. Petitioner has not established that the changes in the arnount and timing of mitigation water rnaterially affect the findings undellying the mitigation plan. Exhibit 29 A N N u N zlArA G o U L D, P etiti o n e r, v' D E s c H U TE SPdEet44Rlf 4 92 0 1 s ) petitioner also argues that the IDp change in mitigation quantify was carried out without an opportunity for public comlnent' petition for Review 51. That argumerlt is not developed sufficiently for our review. Deschules Developnent Co. v Deschules County,5 OTLUBA 218,220 (1982). This subassignment of error is denied. 3. Mitigation Water Sources 3 The hearings officer fbuld that the mitigation plan relies on rnitigation water acquired from the colD and Big Falls Ranch' Record 69-70. petitioner submitted a statement from ColD that there ale no curl'ent or active agreements between ColD and the resoft a'd a document suggesting that Big Falls Ranch proposes to transfer snrface water rights that the resort had intended to acquire for mitigation water. Record 69. Intervenor responded that *578 the mitigation plan did not "mandate" colD and Big FallsRanchrvater,butinsteadauthorizedrnitigationwaterwithinageneral zone. Id.Theheafingsofficelrejectedintenrenor's argun.lent a6d found that, in approving the mitigation plan as part of the FMB "both oDFw and the Hearings officer relied on those sources in reaching their r.espective conclusions that mitigation was adequate." Id rhe hearings officer concluded that petitioner's evidence was ,.sufficient evidence to call into question whether obtaining water from those sources rentains feasible,,, and found that a change in the source of rrritigation lvater '1nay constitute a substantial rrodification 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 nritigatio, water rvould satisfli both quantity and quality of mitigation water. However, the hearings officer concluded that compliance with the mitigation plan and, implicitly, the no net lossidegradation standard that the mitigation plan was designed to satisfu, could be met by irnposing the following condition of approval: **l2.,lT.Sitedesignapproval.priortoissuanceofbuildingpennitsforthesingle-familydwellings,obtaindesignapproval for at least 50 OLUs, which approval shall demonstrate that: (a) the OLUs quali! as such and (b) the Big [Falls] Ranch and ColD 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 orjusti!amodificationtotheFMP.''RecordllT(boldfaceomitted)' petitioner argues that Tp Condition l7 inrpermissibly allows a modification of the mitigation plan without providing an opportunify for.further public input on the issue of whether any proposed alternate source of mitigation water provides "the same quantify and quality mitigation" to satisff the no net loss/degradation standard. Petition for Review 54. we agree' A local gove.rn.le.t may defer a decision o. approval criteria to a later date, so long as the local governmellt finds that it is feasible to satisly the approval criteria and "so long as intelested parties receive a full opportunity to be heard before the decision beconres frnal.,, .Nle)tert. Cit),of l,orrlctnd,67 OrApp 274,280.678Pzd741,744(1984). As pertinenthere'thecouftexplained in (iottld t'. Deschutes Coutttl',2 l6 Or App 150' 163' l7l P3d l0 17 (2007): ..The code rna'dates that the approval stalldards be evaluated 'from substatrtial evidence in the record.'DCC l8'll3'070(D)' That provision requires that the justification be based on evidence submitted at public hearings on the application. The couttty's decision, however, allows the mitigation plan justification to be established by future discussiotrs 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 counfy ordinance." Intervenor responds that the FMp did not require mitigation rvater be sourced frorn water provided by the colD and Big Falls Ranch and that the issue of feasibilify of obtaining watel fiom ColD was settled in prior appeals. Intervenot''s response misses the mark. As the hearings officer found, the mitigation plan relies on both quantity and quality of rnitigation water acquired from the ColD and Big Falls Ranch and the record does not support a corrclusion that a change of sotlrce for the mitigation water would satisfi both quantity and quality of mitigation water. The no net loss/degradation issue has been litigated at length Exhibit 29 A N N u N zlArA G o U L D, P etiti o n e r, v. D E S c H U rE sPd€$ t45 Elf 4 92 0 1 e ) and affirrned based on facts and expeft evidence nrodeled on assumptions of water sourced ffom COID and Big Falls Ranch, which includes the quality of those sources, including watertemperature, and irnpacts on downstream fish habitat. As tlre court explained in Goultl, the public is entitled to a hearing on whether the no tret loss/degradation standard will be satisfied by mitigation. See DCC l8.l 13.070(D) (requiring that "[a]ny negative irnpact on fish and wildlife resources will be cornpletely mitigated so that there is no net loss or net degradation of the resource"). The hearings officer's decision and TP Conditiol I 7 allow a change in nritigation 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 persols.ThatprocesswoulddenyinterestedpersonstheirparticipatoryrightsallowedbyDCC 18.113.070(D). **13 Intervenorarguesinitsresponsebriefthat"thehearingsofficerhadnolegal basistoreopentheissue,"and"thereisno legal basis for irnposilg Condition 17." Response Brief 43, 46. Intervenor argues that tlre issue of water availability was settled by the FMp a6d intervenor did not propose to change the source of rnitigation water as part of the tentative plan for Phase A- I . Intervenor asks that we reverse TP Condition I 7. 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 authorify to affirm, reverse, or rernand a land use decision. ORS 197.835(l) ("The Land Use Board of Appeals shall review the land use decision or linrited land use decision and prepare a final order affirnring, reversittg or t'ernanding the land use decision or lirnited land use decision."). We do not have authority to reverse an individual condition of approval and affirm the remai6der of the decision. We do not have authority to gl'ant intervenor's request for relief. Further, even if we did have such authority, the request for reliefis not applopriate in a response brief. *580 Intervellor argues in the response brief that the FMP approval did not rely on mitigation rvater fronr COID and Big Falls Ranch. Response Brief 46-50. Howeveq intervenol did not challenge the hearings ofl'icer's finding that the FMP approval relied on those water sources by way of cross-petition. Accordingly, rve accept the lrearings oficer's findings on that issue. The hearings officer found that petitioner's evidence calls into question whether interuenor will be able to satisfy the requireurents of procuring and providing the quantity and quality of water required to execute the mitigation plan to satisf, the no net loss/degradatiol standard. The hearings officer concluded that the record does trot support a conclusiotl that a change of source for the rnitigation water would satisff both quantity and quality of mitigation water. The hearings officer determitred that a change in the source of mitigation water "may constitute a substantial modification to the FMP approval." Record 70. We conclude that Tp Coldition 1 7 violates the right to a public hearing on whether the no net loss/degradatiolt standard will be satisfied by rnitigation from water sources not specified in the mitigation plan. Accordingly, the county may not rely on TP Condition l7 to conclude that, as conditioned, the tentative plan approval will comply with the rtritigation plan and thus satisfli the no net loss/degradation standard. On remand, the county must consider whether, without TP Condition 17, the tentative plan for phase A- I 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 regulatiotls. **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 plrase of the resolt developtnent' updated docunrentation for the state water right pernrit." See n 9. The hearings officer concluded that FMP Condition 10 requiles ,.documentation of the state water permit and an accounting of mitigation 'under the watel 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, intelenor applied to extend the perntit. OWRD denied the reqtlest ll Exhibit 29 ANNUNZIATA GouLD, Petitioner, v. DESCH UTESPdgg4gBdf q9201 e) for perrnit 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 *5gl regards to [the permit] as rvell as purchasing mitigation credits and providing instream flow berrefits without everr using any water yet." Record 1152. h't September' 201 8, owRD stated that the permit is in full force and effect, which the hearings officer corrcluded means that the extensiorr approval t'emains 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 ofa conditiorr ofapproval requiring intervenor to delnonstrate that it ltas obtained a valid water permit. Inte.enor first responds that petitioner waived the water pennit 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 c,ounty,34OrLUBA 586,affct,t57orApp 1t.967 p2d898(1998)(ORS 197.835(3)andORS 197.763 requirethatpetitioners 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). Interverror argues that tlre current record demonstrates that intervenor has a valid water right and petitionet''s protest of the exterrsion ..does not render. the per.mit void." Response Brief 54. we agree that the hearings officel did not err in construing FMp Condition l0 to r.eqnire docurnentation of the water right and concluding that, based on the record before him, intervenor had estabtished a valid water right. The subassignmetrt 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 rnitigation plan requires intervenor to restore wildlife habitat on the property. onsite rnitigation is required fbr each phase of developnrent. For example, rvildlife road underpasses are required to be cornpleted at each phase and intervenor must control noxions weeds and preset've native vegetation' logs, and snags. With respect to off- site mitigatio', the FMp wildlife mitigation plan requires intervenor to provide 2.3 acres of mitigation for evety developed acre or pay a fee in lieu into escrow if mitigation land is not available. Specific mitigation actiolrs must be determined through consultation with wildlife managemellt agencies. Record 84' **15 *5g2 FMp Condition 3g 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 repoft to the county detailing rnitigation activities that have occurred over the previous year." See n 9; Record 221' Before tlre hearings officer, petitioner. ar.gued that the intervenor was required to demotrstrate in the tentative plan lrow intervenor would cany out the FMp wildlife mitigation plan. Interuenor argued that the wildlife mitigation and consultatiotr would occur during a later subphase ofPhase A. The hearings officer observed that wildlife mitigation tneasures are required to be increnlentally inrplemented at each phase of develop're.t and that specific on-site implernerltatiou measures are dependent on the trranner 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 sttbphasing of Phase A could potentially lead to noncompliance with the wildlife mitigation plan. For example, if the dwellings that ale sub.iect to the Phase A- I approval are corlstructed, but further developn.rent stops, then development could potentially occur without compliallce with Exhibit 29 ANNUNZIATA GouLD, Petitioner, v' DESCHUrESPdggt{yq$f qqP01 e) the wildlife mitigation plan. To prevent that result, the hearings officer imposed two conditions requiring ongoing restoration of native vegetation wlrere construction disturbs native vegetation in open space areas that are planned to be retained in a substa'tially natural condition and requiring intervenor to obtain BLM and oDFw concun'ellce that no mitigation is required, or provide reqnired nritigation or deposit escrow funds in lieu of mitigation' Record ll8' l2 petitioner does not challenge the adequacy ofthose conditions, but instead sirnply reiterates her argument before the hearings officer that interve.or was required to provide a detailed nritigation plan plior to tentative *583 plan approval' Petition for Review 56. Intervenor responds that FMp condition 38 assures contpliance with the wildlife mitigation plan by requiring an annual repoft of mitigation activities' As established in prior appeals, the mitigation plan satisfies the substantive no net loss/degradatiotr statrdard for destiuation r.esort developme.t. we agree with irrtervenor that the details of the mitigation plan are established by the FMB and compliance (or .oncornpliance) with the rnitigation 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. petitionel 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 subassigntrletrt of error is denied' C. Related Conditions of APProval The mitigation plan involves (l) the removal of two wells on the subject property, (2) the renroval of two dams that irnpede the flow of spring r,vater 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 reqnir.e as a condition of approval for tlre 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 constructiol under the tentative plan, he failed to include dam removal as a condition of approval- I'tervenor.responds, and we agree, that rernoval of the dams and provision of rnitigation water is required by the FMP approval and the tentative plan does not alter.the mitigation plan. Response B|ief 55. The hearings officer was not required to impose additional conditions to the approval ofthe tentative plan' petitio'er also argues that the hearings officer's discussion of corrpliance with FMP condition 38 is inadequate and that the hearings officer inappropriately allowed deposit of funds in lieu of required mitigation. Petitioner's argulrlellt 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 difi'erent and distinct argument, then that argulnent is not *584 sufficiently developed for our review and, thus, provides no basis for renrand. Deschutes Det,elopmenl Co.,5 Ot LUBA at22O. This subassignnlent oferror is denied. The second assignment oferror is sustained, in part, and denied' in part' The county's decision is remanded. Footnotes ?. Exhibit 29 ANN UNzlArA Gou LD, Petitioner, v- DESC HUTEsPdge4Sq$f 49201 e) DCC 18.04.030 defines overnight lodgings: ...overnight lodgings' with respect to destination resofts, means permanent, separately rentable accolnmodations that are not available for residential use. overnight lodgings include hotel or rnotel roonrs, cabins and time-share units. Irrdividually-orvned units nray be considered overnight lodgings ifthey are available for overnight rental use by the general public for.at least 38 weeks per calendar year through a celrtral reservation and check-in service operated by the destination resor.t or through a real estate propefty manager, as defined in oRS 696.0 10. Tent sites, recreational vehicle parks, rnobile homes, dormitory rooms and similar accornmodations do not qualify as overnight lodging for pttrposes of this definition." See also ORS 197.435(5Xb) (providing similar OLU definition)' DCC I 8.1 13.050(BX21) pfovides that the CMP shall include: ,'A description ofthe mechanism to be nsed to ensure that the destination resort provides an adequate supply ofovernight lodging units to maintain compliance with the 1SO-unit minirnum and 2 and one-half to I ratio set forth in DCC I 8.I I3.060(DX2). The nrechanism shall rleet the requirernents of DCC I 8.I I3.060(L)." FMP Condition 2l provides, in part: ,.Each phase of the development shall be constructed such that the number of overnight lodging units meets the 150 overnight lodging gnit and 2..1 ratio of individually owned units to overnight lodging unit standards set out in DCC I 8. I I 3.060 (A ) ( I ) and I 8. I I 3.060 (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 I 97.445(4Xb)(B), at least 50 units of overnight lodging must be constructed i1 the first phase of development, prior to the closure of sale of individual lots or utrits." Record 219' FMP Condition 33 provides: "The Resort shalt. 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 I 00 persons. ..C. The aggr.egate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC I 0. I I 3.060 (A) ( l ) and (2) shall be at least $2,000.000 (in I 984 dollars). *D. Ar least $2,000,000 (in 1984 dollars) shall be spent on developed residential facilities. ..E. The facilities and accomnrodatiols requiled by DCC I8.113.060 must be physically provided or financially assured pursuant to DCC I g. I I 3. I I 0 prior to closure of sales, rental or lease of any residential drvellings or lots." Record 220. DCC 18. I 13.080 plovides: ,.Any substantial change, as deterrnined by the Planning Director, proposed to an approved CMP shall be reviewed in the same rnanner as the original cMp. An insubstantial change rnay be approved by the Planning Director. Substantial change to an approved CMP, as used in DCC 18.113.080, tneat'ls an alteration in the fype, scale, location, phasing or other characteristic ofthe proposed developnrent such that findings offact on which the original approval was based would be materially affected." TP Condition l8 provides: ..18. Construction. Prior to closing on the sale, lease or rental of any residential lots or dwellings: ..a. obtai' land use approvals for development of the remaining elements of Phase 'A,' including the remaining oLUs, restaurant, meeting rooms atrd recreational facilities. "b. Construct at least 50 OLUs .'c. Constr.uct or.provide financial assurance fol constt'ttction of the remaining 100 OLUs ..d. Construct or provide financial assurance for constnrction ofthe restaurant, tneeting rooms and recreational facilities for Phase 'A' and as noted in FMP condition 33." Record I l7 (boldface omitted). DCC 1 8.1 I 3.025 Provides:..Expansio' proposals ofexisting developnrents approved as destination resotts shall nteet the following criteria: ..A. Meetall criteriaof DCCl8.ll3 withoutconsidelation of any existingdevelopment; or J 1 5 6 7 8 g Exhibit 29 A N N u NzlArA G o u LD, Petitio ne r, v. DE s c H u rE sP d$g r+gqlf 4 92 01 e) "8. Meet all criteria of DCCl8.l l3 for the entire developrnent (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. "lfthe applicant chooses to support its proposal with any part ofthe existing developnrent, applicant shall dernonstrate that the proposed expansion will be situated and managed in a nranner that will be integral to the remainder of the resoft." DCC l8.l 13.040(C) plovides: "Site PIan Review Each element or development phase ofthe destination resort must receive additional approval through the required site plan review (DCC 18.124) or subdivision process (DCC Title l7). In addition to findings satisfying the site plan or subdivision critelia, findings shall be made that the specific developrnent proposal conrplies with the standards of DCC I 8. I I 3 and the FMP." Ground water will be used for domestic and cornmelcial uses, golf course and landscape irrigation, reservoit'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 frorn intervenor, however for the sake of sirrrplicity in this decision we refer to interuerror as the water right holder. The FMP included the follor'ving conditions of approval: "10. Applicant shall provide, at the time of tentative platisite plan review for each individual phase of the resott development, updated docurnentation for the state water right permit and arr 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 PIan, the August 2008 Supplernent, and agleements with the BLM and ODFW for managenrent of offsite rnitigation 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 rneasures include removal of existing wells on the subject propeffy, and coordination with ODFW to model stream temperatures in Whychus Creek. "39. The applicant shall provide funding to conrplete a conservation project by the Three Sistels Irrigation District to restore 106 acre-feet of instream water to mitigate potential increase in streanr telnperatures in Whychus Creek. The applicant shall plovide a copy of an agreement with the irrigation district detailing [the] funding agl'eement prior to the completion of Phase A." Record 221. TIre 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. "Consunrptive use" means the amount of ground water appropriation that will not return to surface lvater flows. Record 67; see a/so OAR 690-505-0605(2) (OWRD definitions fol Deschutes Basin Gtound Water Mitigation Rules). 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 letained in substantially natural condition, the applicant shall restore the native vegetation. This requirernent 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. Priol to issuance of building perrnits 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 I l8 (boldface omitted). Zg Or LUBA S6r (Or Luba), 2019 WL 11505037 ll t2 F,rrtl ol'I)ocunrr'nl It12 i i lronrst,n licirtcrs Nir clirjfir lo or rgrir,tl [ : \ (;rrYCnncr]l Worl{\ 11116121 ,2:23 PM i:,lr,' rl:::rl:i-'i;:ir:r:;;,iiilli Exhibit 30 "'"': ":,: :pa?H :'i?f '6":for Environmental lnformation (NCEI) 'rlil' rrir sgarch i.lovemller IJS Relense; Wed, 3 De[ 2021' I 1:0C Atu] [57 i.j ;i,l ,r1.r , rl '', l-1o.Tre Cli!llale ,!loniterinq i Climale at a Glatrce Climate at a Glance Global National Regional statewide Divisional County City Mapping Time Series Rankings Haywood Plots Data lnformation Background County Time Series choose from the options below and click "Plot" to create a time series graph Please note, Degree Days andPalmer lndices are not available forCounties Parameter:Preci $pti*n* ! Display Ba.:e P.tiol ,start isor ' End: 2ooo' ! Display Trend 'per Decade Per Century Start: 1895v End: 2021 - O Smoothed Time Series : Binomial Filter LOESS Time Scale:Annual Start Year:1 895 Month: State: County: i':,,: Oregon End Year: :2021 Deschutes CountY Deschutes County, Oregon Precipitatiorl li ,,)ta '\ )a) \":: rl I t !-1:. i 1l aij S:ii ! !u] I lI ) i:).2; i tl) j t41 i1:'t l,ja,; 1.'/i l9illt iill:l :).')'l-: l:)15 2iiJ' ; 'l i I il!) 1'r!rr ilis 'l-l ;'' 'l irl'lrf'r jitj.iC ..ri )-;').) w' Powered by ZingChart Download:<l'ElO Y^,i tJi:i: l \i is 202001 -202012 https:/iwww.ncdc.noaa.gov/cag/county/time-series/oR-017/pcplannl1ll895-2021 19.23',26 1/6 1'1116121,2:23 PM Exhibit 30 Climate at a Glgpce I Nalj.onal pepters for Environmental lnformation (NCEI) Page '2 ot 6 :.,1.:::. 201901 -201912 201801 -201812 : 201701 -201712 : 201601 -201612 201501 -201512 201401 -201412 201301 -201312 201201 -201212 201101 -201112 201001 -201012 20090'1 -200912 200801 -200812 200701 -200712 200601 -200612 200501 -200512 200401 -200412 200301 -200312 200201 -200212 200101 -200112 200001 -200012 199901 -199912 199801 - 199812 1gg7o1 - 199712 199601 - 199612 199s01 - 199512 199401 - 199412 199301 -199312, : 199201 - 199212 199101 -199112 199001 -199012 22.61" 14.85" 21.55" 22.45" 20.19" 1A zAr 17.23" 30.49" 20.1 0" 25.77" 19.87" 19.60" 20.88" 27.00" 24.88" 22.41" 21.41" 15.27" 20.14" 18.88', 20.72" 30.93" 23.40" 38.03" 30.92" 17.61" 25.27" 21.81" 23.42', 21.16" 64 2 51 62 38 113 8 117 36 91 34 32 42 101 84 60 47 3 37 19 40 119 73 126 118 11 89 53 74 M https://wwwncdc.noaa.gov/cag/county/time-series/OR-01 7/pcpl annl 1 I 1 895-2021 2t6 111'1612'1.2:23 PM Exhibit 30 ctimate ". "pa"d3"y"3f"6,*r for Environmental Information (NcEl) i:r.:\ ii:'i l:\;-,-j[ 198901 -198912 198801 -198812 198701 -198712 198601 - 198612 198501 -198512 198401 -198412 198301 -198312 158201 -198212 198101 -198112 '198001 - 198012 197901 - 197912 197801 -197812 197701 - 197712 197601 - 197612 197501 - 197512 197401 - 197412 197301 - 197312 197201 - 197212 197101 - 197112 197001 - 197012 196901 -196912 , 196801 -196812 196701 - 196712 ', 196601 - 196612 196501 196512 196401 - 196412 : 196301 -196312, 196201 - 196212 196101 -196112 196001 -196012 20.71' 22.74" 21.52" 23.50" 16.79" 28.57" 33.35" 30.27', 29.34" 25j4" 23.34'. 22.02" 23.60" 16.63" 26.03', 21.46" 24.53" 22.76" 26.17" 26.49" 24.15" 22.12" 19.53" 22.41" 19.51" 29.23" 24.05', 23.08" 2t.11" 26.83" 39 65 50 76 7 106 124 116 113 86 71 56 76 5 95 48 82 67 97 98 79 57 29 60 28 111 78 68 103 100 https://wwwncdc.noaa.gov/cag/county/time-series/oR-01 7/pcp/ann/1 /1 895-2021 3/6 11116121.2:23 PM Exhibit 30 climate " " "P;"d3"f"3f"6t"" ror Environmental lnrormation (NCEI) :.,i,i,,i:,1 ! ji:::r '. ., ! 195901 - 195912 195801 - 195812 195701 -195712 195601 -195612 195501 - 195512 195401 - 195412 195301 -195312 : 195201 -195212 195101 - 195112 195001 -195012 194901 - 194912 194801 -194812 194701 -194712 194601 - 194612 194501 -194512 194401 - 194412 194301 - 194312 194201 - 194212 194101 -194112 194001 - 194012 : 193901 -193912 193801 -193812 193701 -193712 193601 -193612 193501 - 193512 193401 - 193412 193301 - 193312 193201 - 193212 193101 -193112 1 93001 - 1 9301 2 15.59" 26.04" 26.80" 29.15" 24.58" 18.83" 32.75" 18.92" 25.7g', 32.01" 14.63" 31 .91" 21.30" 21.48" 27.03" 4 96 oo '109 83 18 123 20 92 122 1 121 46 49 102 17 45 110 106 94 10 66 114 54 12 69 25 43 16 6 18.18" 21.20'. 29.18" 28.57" 25.95" 17.56 22.71' 29.88" 21.87" 17.75" 23.13" 19.15" 21.03" 18.12' 16.75" https://wrirm.ncdc.noaa'gov/cag/county/time.SeriesioR-017/pcplannl1l1895-2021 4t6 11116121 ,2:23 PM Exhibit 30 crimate at " "p;"d3'y"3f"6'""for Environmental lnformation (NCEI) 192901 - 192912 192801 - 192812 : 192701 - 192712 192601 - 192612 192501 -192s12 192401 - 192412 192301 - 192312 192201 - 192212 192101 -192112 192001 - 192012 191901 -191912 191801 - 191812 191701 - 191712 191601 -191612 191501 - 191512 191401 - 191412 191301 - 191312 191201 - 191212 191101 -191112 19'1001 - 191012 190901 - 190912 190801 - 190812 190701 -190712 190601 - 190612 190501 - 190512 190401 - 190412 190301 - 190312 190201 - 190212 190101 -190112 190001 - 190012 17.75" 17.99" 29.13', 25.27" 21.99" 18.00" 25.05" 24.22" 23.39" 19.75. 23.16" 18.98" 19.13" 24.27" 21.68" 19.59" 19.45" 28.55" 17.36" 25.19" 30.',]5" 20.81 ' 36.70" 22.23', 20.08" 28.60', 23.68" 25.54" 19.55" 19.06" 12 14 108 89 55 15 85 80 72 33 70 21 24 81 52 31 27 104 9 87 115 41 125 58 35 107 77 90 30 23 https://wvw.ncdc.noaa.gov/cag/county/time-series/oR-017/pcplannl1l1895-2021|5/6 '11116121 ,2:23 PM Exhibit 30 climate " " opa"d3r8"3f"6t"" for Environmental lnformation (NCEI) fl..i ; r:: :,V-','r.i.li 189901 -189912 18980',1 - 189812 189701 -189712 189601 - 1896'12 189501 -189512 22.24" 19.00" 25.83" 31.09" 22.52'. 59 22 93 120 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. ncd c. n oaa. gov/cagl ft.)'::Tm,,*Jfiill* *-ilf NCEl Ab0Lil Site itJio . t,' V.tCy r iOiA r lriforrialiorr iJii:ritty r Di;cl;:imer r Dep:irllrertt ?i COf ltfllarae . N:iSDlS $i.-c,lrtnenrei,.on,,:r;rrr l;r-:AA - i'r;Si:iS rviit ' *CilC t./ https:/iwwwncdc.noaa.gov/cag/county/time-series/OR-017/pcp/ann/1/',l895-2021 brb + 11119121,11:17 AM Media SHA Facebook Twitter(/#twitter) Google+(/#google-plus) Email(/#email) Linkedln(/#linkedin) Exhibit 31 eamnp aseneYnrsT"Hf \t*"rs explore chansing frog rules MORE STORIESFONT & AUOIO aA: -..__-i Farmers explore changing frog rules t Pat Kruis m August 11 2021 Aug. 17 meeting on Habitat Conservation Plan includes high'profile lawyers (https://pamplinmedia.com/images/artimg/0000371 1 45091 5-081 5.jpg) Tuesday, Aug. 17, farmersfrom around Central Oregon plan to meetwith 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 yeat" ln 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 PAT^KRUIS/MADRAS PIONEER - i'jadras cattle business owner JoHanna Svmons has organized a regtonal meeting in Redmond Aug. 17, which will feature agrialtural rights legal experts to discuss the lrrigation District, which serves Jefferson County. The water spared for the frog potentiat ot amending the HCP agreement in hopes of providing more water for irigation. could have given NUID farmers 80% more water than they had. Symons and other irrigators think the document should be flexible for elitreme circumstances like historic droughts. Through her nonprofit, perfect Balance, she's bringing in experienced legal minds to advise Central Oregon irrigators. A DVE RTI S I N G I Continue reading below (https://reach.adspmg.com/cl.php? bannerid=1 3063&zoneid=739&sig=537td24D32agbb2c4l db439627ebb7bab46730be927c0el 3ac0a0b580b3ba957&oadest=hftps%3 A%2F %2Fcl i. re%2F JnynzM ) - 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 lnterior' 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 DVE RTI S I N G I Continue reading below i r t'.. i KEITH i'IAHUFACTUnING CO KEITH IS HIRING! APPLY ilOW! @ https://pamplinmedia.com/msp/129-news/5181 86413924-farmers-explore-changing-frog-rules?tmpl=component&print=1 1t3 Exhibit 31 1'1119121,1'1:17 AM Media f (https://reach.adspmg.com/cl.php? bannetid=l2274&zoneid=739&sig=b55d868'l d47{ 831 0a7663f09Of9Oefb4c24ac'l c57abade934daa9c4c43bf1 dcd&oadest=https% 3Ao/o2Fo/oaFcli.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 $400 million dollar pumping station at Lake Billy chinook. ,,We need a short-term solution so we can all be around for the long-term solution," says Symons. "But the short-term solution is amending the HcP" lrrigators like Symons also want to grab attention from legislators spending money on the nation's infrastructure. ,'We need to start spending more grant money and government money on infrastructure to keep the food supply going," says Symons. The meeting will be at the Deschutes County Fairgrounds in the South Sisters Building. Doors open at 6:30 p.m. The meeting begins at 7 p.m. FSrmers explore changing frog rules you count on us to stay informed and we depend on you to fund our efforts. Qualrty local journalism takes time and money. Please support us to protect the future of community journalism. ALSO ON PAMPLIN MEDIA J0fit u3 !0 stE lffiil. tEfl$ Otrgon ol(r lttX for tsril$.t ol .,. 19 hours ago ' 2 commellts Oregon OKs \$66M for transfer of 82nd Avenue to (http://SavingLocalNews. com) Rrldrc'LGa.t: llotrrbrs youft tlorY 2 days ago . 1 comment Readersa€rM letters: Homeless youth story shines a light, Local ... Pcr{and rnl$d$.r ul 2 hours ago. 1 Portland iraffi, 113 in 2021 , L Portland localPortland control, Local ... Chlnooh fttrc fffiUtrallhaorlCrr 47O NE Oak St Madras, OR 97741 541.475.6425 | wrwrr.CrringPlace*com https://pamplinmedia.com/msp/129-news/518186413924-farmers-explore-changing-frog-rules?tmpl=component&print=1 2t3 11119121 ,12:42PM Exhibit 32 Fross' Fish T;uE"T'613'Compromise On Deschutes River - OPB ,,... Mount Ashland forest Zero emis 3) I:lNcv']e2oZ : : ; .::;' :; : '. : Rittenhouse acquitted Snow & ice removal Amanda Peacher / OPB SCIENCE ENVIRONMENT 0:00 / 4:48 On a crisp fall day, a team of volunteers waded upstream in the Deschutes River in pursuit of fish. Frogs, Fish And Farmers Feel Out Compromise On Deschutes River B By Amanda Peacher (oPe) Dec. 13,2017 4:36p.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. i,.? https://www. opb.org/news/article/deschutes-river-oregon-farmers-frogs-fi sh/1110 1it1stzi, 12:42 pM Frogs, Fish Tt*EPttt6"?34 compromise on Deschutes River - oPB Instead of fishing rods, they carried an elEctroshock device' nets and buckets. "Sweet, first fish," said technician Josh Richards, after sending a shock into the rippling water. A trout the size of his pinky finger floated to the surface, belly up. Volunteer Shaun Pigott netted the shimmery fish and gingerly dropped it into a water- filled bucket. That fish, 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 fish is actually doing them good. Every fall, side channel habitat turns into a tiny trickle of water. That's when managers starr holding the river back behind Wickiup Dam. Pigott, also the president of the local Trout Unlimired chapter, said that the holding back of water strands fish in shallow water that freezes over winter. "If the fish aren't rescued, in all likelihood they'd die," Pigott said. "These fish are effectively stranded when the river goes down'" The solution for the stranded wildlife on the Upper Deschutes sounds simple: The upper river needs more \Mater and more stable flows 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. .: https://vv!vw.opb.orglnews/article/deschutes-river-oregon-farmers-frogs-fish/2t10 Exhibit 32 11119121 . 12:42 PM Frogs, Fish Compromise On Deschutes River - OPB Farmer Phil Fine relies on water out of Wickiup Reservoir to irrigate his fields every summer, Amanda Peacher / OPB Farmers Count On Reserves Fifty miles south of the fish rescue, farmer Phil Fine maneuvered his tall red tractor down one of his vast fields 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 fish need' "That's the only guaranteed water we haver" said Fine. Fine is part of the North Unit Irrigation District, one of several water districts that take water out of a different part of the Deschutes River. North Unit's water rights are tied to u7ickiup Reservoir on the Upper Deschutes. It's the management of the \Tickiup that dictates how much water is in the Upper Deschutes River. "The river shouldn't be treated like an irrigation ditchr" said Jim McCarthy, communications manager for the environmental group \Water\$7atch. "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 flows," said Gail Snyder, co-founder of a conservation group Coalition for the Deschutes. Tirir:k i3'*t L*r:ri https://wwr.opb. org/news/article/deschutes-river-oregon-f armers-frogs-fi sh/3/1 0 Exhibit 32 11t19t21 , 12.42 PM use during irrigation season flats at solrle points. Frogs, Fish ApQ Farmerq Feel-O1t Compromise On Deschutes River - OPB In the p"S,?ffi.4.S[t%..u*e a series of puddles ancl mud "The river was truly a sad little trickle," Snyder said In the summer) the problem is the opposite. When dam managers open up the $Tickiup Reservoir to let water out for farmers, there's too much flow in the Upper Deschutes' Winter flows in the Upper Deschutes are far lower than they were historically. That's because dam managers upstream start holding water back for summer irrigation https:i/wvwv. opb. org/news/article/deschutes-river-oregon-farmers-frogs-fish/4110 i1t1st21,12:42 PM Fross, Fish dfttuP5q+o]t compromise on Deschutes River - oPB Frog Lawsuit Forces Conservation Big variations in water flow can be harmful for wildlife - especially for the Oregon spotted frog, which was put on the federal Endangered Species List in 2O14. \When the river loses waterr wetland frog habitat along the Upper Deschutes dries up When the river has too much watefr frog eggs flush 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 nowr" said Bridget Moran, who manages the U.S. Fish and \Tildlife Service Bend office. "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, $TatedJfatch 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 figure out how to work together or possibly say goodbye to the water supply. ..Everybody really wants to make sure the other needs are metr" said Moran. "Nobody wants to chase agriculture out of here. Nobody wants to see the fishery impacted." THANKS TO OUR SPONSOR:Become a Sponsor 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. https ://www. opb. org/news/arti cle/deschutes-river-oregon-f armers-frogs-fi sh/5/1 0 11t1st21,i2:42PM Fross, Fish d*t+q+o]t compromise on Deschutes River- oPB workable compromise. But how to release a stable supply of water without hurting farmers has been a key sticking point. Eight years into talks, \Water\Watch 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 tine 25 cubic feet per second in years past that left the river a mere trickle- Still, it may not be enough. - . :; ,. ,:,'ii: 'l ,:" I i:;;;lr i:1.:r :.:-'r.;r..i https://wwrv.opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/6/10 11tiet21, i2i42pM Fross, Fish dnt"?:rbia compromise on Deschutes River- opB A federal biological opinion for the spoti8d 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 businessr" said Fine. 0:00 / 0:00 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. "\(/e're a highly efficient district, one of the best in the country' and the reason is because we have to ber" said Fine. \rhile 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 - i1's a 1O0-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 lJnit, 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 .,-rr.,.rr"rrrr,ritv tir.r{ nf cpein<l rle^rl fish grltterrerl. nn. rnud flnts rrrhpn the-rTnnerT\eschrrfes _:',i,: .:. il.,: :'..,.1: !,r:r:: '-':;: ' .:.i:' https://www. opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/7t10 11tjst2j, 12:42 pM Fross, Fish ^#nhi[lrt""3t"1, compromise on Deschutes River - opB .,It is a reality. Central Oregon IrrigatiS&S9ir18&v.ould 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 Landfill 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 difficult, 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 fish 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 figures. 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 fight these changes, it looks like the big compromise could be on its way. Earlier this year, Sen. Jeff Merkleg D-Oregon, helped secure $150 million of congressional funding for several Deschutes basin plpjgg-p-rciects. Central Oregon Irrigation District plans to start constructing its first canal next year. Fine, the Madras carrot farmer, believes that Horrell and other COID leaders want to come to a solution to return water to the Upper Deschutes. But he's worried about future lawsuits, or that this massive collaboration could fall apart at any moment. He and other North Unit farmers are, in some sense, at the mercy of their senior water rights holder neighbors. I :r:::.:. l.:::r I : :':i: https://www. opb.org/news/article/deschutes-rive r-oreg on-f armers-frogs-fi sh/8/1 0 11tist21 , 12:42 pM Frogs, Fish &["BJ631A compromise on Deschutes River - oPB Ultimately, he said, they're working with an antiquated water system that needs change. "Our government designed the system. \We inherited itr" Fine said. "It's just going to take a lot of time and money to fix." THANKS TO OUR SPONSOR:B€come a Sponsor Tags: Science & Environment, Environment, Fish &Amp;Wildlife, Land, News, Science, Water, World THANKS TO OUR SPONSOR:Become a Sponsor *Pts's First L*s$< r?*ws{€ffier week €il*AlL Sign Up .i tRi.,r\ ivl itJi) N arlj Thixk Sut l-*uri https://www. opb.org/news/article/deschutes-river-oregon-farmers-frogs-fish/9/10 11119121 ,12:37 PM Exhibit 33 age o ADVENTURE DIGITAL EDITIONS NEWS & FEATURES FOOD & DRINK NEWSLETTER EVENTS st rBs[:RIllli sfotSUBSCRIBERENEWSEARCH THIS lVEESITE ri. ,i: : Youarehere:ilirr'r./Fronr:rotrqL'l-rtJiye!/TheDesrhules3asin'sLastGieatProblem THE DESCHUTES BASIN'S LAST GREAT PROBLEM Published April 1 2, 201 6 Writter by D.rve Setn:ttat t 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 itselt 1fio SIGN UP HERE On the last Saturday in JanLlarY, a bright, sunny affair when the yoUR EMATL ADDRESS promise oi spring felt near, tlre Fly Fisher's Place in Sisters was O Weekly Events & News (Up-to-Date full of impatient anglers Happenings Around central oregon) debating the merits of some o1 c The Explorer (Adventuring around central the shop's 1,400 tlies. But rhe oreSon) light vibe turned serioLrs when lO The Neighbor (Home & Design) asked leff Perin, the shop's O The Menu (Central Oregon Food & Drink) owner, about his connection to? Tlt spotlight (central oregon culture & the upper Deschutes River. Heritage) 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. MiDDLE DEscHUrls. PHoro BY loN TAPPER "l gOt hOOked On the fiver the very first day we moved here, back inJune 1980," he said, his alert blue eyes shadowed by a stiff-billed fishing cap. perin, rhen in sixth grade, didn't catch a single fish that day. ln 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 https://bendmagazine.com/the-deschutes-basinslast-great-problem/ sfot SFARCH THIS WEBSIT! SPONSOR 1t11 11119121 ,12:37 PM a lifelong passion for the river. Perin can recal Exhibit 33 age o ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS Deschutes as recently as three years ago, JUSt 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. "Theriverisoversubscribedforirrigarionpurposes,"hesaid "TheUpperDeschuteswasonceoneofrhe best places in the country for rrout fishinS, but now it's not even in the top 100." Most ln central oregon agree that this stretch ofthe 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 lisherman like perin, boaters, conse!-vationists, state and federal agencies, municipalities, farmers and ranchers grapple for solutions and defend their turf. The clebate will play out in meeting rooms and courtrooms, thanks to a lawsuit related to the Oregon spotted frog. It will continLle in government office5, where officials will rule on a regulatory process iniliated by eight local irrigation districts and the city ot Prinevllle. The competing visjons 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 wlry they say'whiskey is for drinking and water is for fi8htin8,"'said slron Rae, communications manager for the Central Oregon lrrigation Distrjct (COID), a quasi-munrcipal group th has 3,623 members, mostly small farmers and Tanchers' 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, wlrich 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 Llp to the Columbia River. The Deschutes is a spring-fed river rhat has been called the "Peculiar River" because of remarkably consistent streamflow. In 1 877,.John Todd purchased a ranching claim along the Deschutes River he named the Farewell Bend Ranch. When travelers left the ranch and headed north, knolving it was the lasr bend in the river along their route, they would say, "Farewell Bend " The nickname stuck but [he post office shortened the town's official name to Bend, since another community along the Sr.ake River had already laid claim to the name Farewell Bend. One of the firsr governmenl reports on the water resources oI Central OreSon, wr-itten by lsrael Coo< Russell, an early geologist and geographer, was published in 1905 atrd marveled about the river's "conspicuously clear'' waters. tt is ct swift flowing streom ... o detight to the behotder on account of its beautit'ul colors, ret'reshing coolnes: and the freqttently pictLtresqLte ... impressive scenery of its canyon wolls, os well as a blessing to the artd region to which it brings its ftood of water t'or irrigation and other purposes. /f ls also an dttroction to the angler and its v/dters are abLtndantly stocked with trout ln the first decades ofrhe 20th century, Bend evolved into a prosperous mill town along the banks of river. The Shevlin-Hixorr and Brooks-scanlon companies opened mills on opposite sides of the river in 1 91 6. They built a dam between them for log ponds, and rhe river was an indispensable conduit for transporting timber to market. Earty inhabitants of the Deschures basin regior.r inctr-rded the warm springs, wascoes, PaiLrtes, xlurn,hrlhr"Rotffi:'J:tj:lJ;J:;lilr"r*,:i;:,-'"" Modocs, Nez Pearce and Walla Walla tribes. Europeans began exploring Central Oregon as early as 181?onrir,"'-,tly create world renowned wines, the That year a pair offur traders carved their initials and the date on a large stone on the banks ofthe region still has an undiscovered feel to it. Deschutes River, south of present day Bend SPONSORED CONTENT MEDFORD: THE BASECAMP OF ROGUE VALLEY WINE COUNTRY BEND PSYCHOLOGISTS HELP US UNDERSTAND ANXTETY IN HONOR oF OCD WEEK i 1i lrrr.r liilrr https://bendmagazine.com/the-deschutes-basinslast-great-problem/2111 11119121 ,12.37 PM ln 1894, Congress passed the Carey Act, whicl Exhibit 3 3 nno',,,0?oflE]6',f 3f Tlo"schutes-basi ns-last-sreat-problem/ ADVENTURE systems and sell water to landowners in the a established in central oregon starring in 1ga4, and the state passed an agriculture-Friendly water rightsminds or lead to a panic attack, it can be a sign ol cocle in 1909 which encouragecl farmers and ranchers to settle in the region, offering free land in something bigger. exchange for the cost of irrigation. By 1g24,28,500 acres of land ln Central Oregon were irrigated, supporting a population of about 1 0,000 people in Deschutes County The founding principal of the state water code was and still is-first in time, first in riSht-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 1 899 to 1 91 6, which dictate when and if they get their waler A series of dams were built along the river starting in 1910, along wiih six reservoirs, including Crane Prairie (1940) and Wickiup (1949) on the Upper Deschutes. The Bureau of Reclamatior'r (BOR), a government agency tasked with managing and protecting wateT resouTCes, assigned irrigation districts manage these reservoirs, which are used to store water during the winter and Telease it to clistrict members clur ing the irrigation season, April l5 through Octobel 15' Conservationists argue that BOR and the Oregon Water Resources Department (OWRD) have allowed the rrrigation distrlcts to oversubscribe the river, hoarding water in tlre reservoirs in the winter and flooding Bend - La Pine - Madras - MauPin - Prineville- Redmond - Sisters' Sunriver 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 leet 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,OOO cfs in the summer. The Oregon Department of Fislr and Wilcllife (ODFW) has set the instream water right at 3oo cfs, bLtt rhat is essentially jr-rst a target-one rhat hasn't been met ilr recent winters largely due to demand from the irrigation districts. (Climate change and a Srowing population in the region also play an important role.) NE\trS & FEATURES FOOD & DRINK EVENTS HERITAGE THE LOST SKi AREAS OF CENTRAL OREGON The old ski hills of Central oregon may have beetr lost to time, but a local historian is digging their stories back WHERE TO FIND THE REAL HAUNTED HOUSES OF BEND It was a dark and stormY night..." goes the often- mocked cliclrd used bY wannabe mysterY writers. BEND ON THE BIG SCREEN - OLD MOVIES FILMED IN CENTRAL OREGON Dozens of films have been made in Central Oregon over the years, from Westerns to comedies r*tt - 4 ,,lt's clear that fish and wildlife would benefit from a more natLrral river flow," says Ryan Houston, executive director of the Upper Deschutes Watershed Cor-rncil, a Bend-based nonprofit thai takes a collaborative approach to tryinB to restore the Upper DeschUtes. "But how do we get there? Tlre devil in the details." up. DINING GUIDE https://bendmagazine.com/the-deschutes-basins-last-great-problem/3t11 11119121 ,12:37 PM Exhibit 33 nno.,,,opoflEJ6rry bTTlo"schutes-basinsJast-sreat-problem/ ADVENTURE lAtS NEWS & FEATURES FOOD & DRINK EVENTS UESI;IIU| EI; BASIII 'lit+:;li;: I S F.:H"".."ll h*'**.*I #***'*'I gg*,"'"" I HsF"".'..-I ffi**.'*I ffi-*.*I A**I #s'-','." ,: tttRSOit I _ l' i :.. .: :, i'.1: . . : ;,,,:i: $99M ! r: rl:a '* A -r1," I us lu*.r' :11 .11 ; rI t iId 6Beld$ffi4mW[S uqr Srry ndE 6 h 0Fd6 ford orh S hhsmhnhffi d6&dubt6hrdtGdft ffi mh.rr 32i,Sg$agffi alpsuiidDtffi! ivl$rM ke0ddwf, 2012 Mtuf,dpEr) THE FISHERMEN yancy Lind's office is perched on a bluff above the memorable bend in the riveT where the Upper Deschutes morphs into the Middle Deschutes. As a financial manager who needs to follow the markets, Lind morritors four computer screens at a desk wath 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. "l'm obsessed with the river," he said. Lirrd is intense, deadly serious when it comes to the Deschutes, and looked annoyed when I told him I was writing a story abor.lt the river' ,,The river is many rivers," he said, sweeping a hand toward the window and the view. "lr has many different areas of ecological concern, and they are dramatically different. You cannot possibly write an arlicle of any depth abottt the whole river." I conceded the point and asked him to grade the particularly problematic stretch of the Deschutes between Wickiup and Sunriver. "lf you're going to quote me, I better be diplomatic," he said, with a wry smile "lt's a g**damn, f**king disaster. A complete ecological kill zone every winter. On a scale of one to ten, it's a minrls one." C-; '-' .rf;{}rtr rHtlsF*? https://bendmagazine.com/the-deschutes-basins-last-great-problem/41',!1 Exhibit 33 111'lgl21 ,'12:37 PM age o ADVENTURE NEWS & FEATURES which grant, in his opinion, [ar too rnuch latitude Io the irrigation districts to rnanage the river. "The irrigation districrs 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 Kumbdya to flr Lhis problem, but that hasn't worked." When I asked about his obsession wilh lhe 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 oI REsERvorR. Ptoro 8Y RTiHARD s!lorr N€LSo\ life, right?" he asked. "we live stressful lives. You see l'm monitoring four compurer scTeens, 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 8o to the river. That's what grounds me. And it's my calling to try to make it better than it was when I movecl lrere." jeff Perin is equally passionate, but doesn't shy away from his personal connection to the Deschutes. He holds one oljust seven permits ro guide anglers on the Upper Deschutes, and he was there before, cluring and afterthe October 20'1 3 fish kill near Lava lsland Falls tlrat killed more rhan 3,0C0 fish. "The year after that big kill, all those fish we were catching (and releasing) were gone," he said. "lf the rjver had been llowing ar 250 cfs, ir never would lrave 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 Universlty of Virginia, after reading a "go west yoLlng man story" in a rragazine that described the state as a kind of ptogressive "Ecotopia." "l 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 bartles over rhe 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 FOOD & DRINK EVENTS https://bendmagazine.com/the-deschutes-basinslast-great-problem/5111 11119121 ,12:37 PM aboul erzery water rights stakeholder in the re to .he st'eamtlow problem. Exhibit 33 nuo"',,0?q;En6t'ff bTTlo"schutes-basins-l ast-s reat-problem/ ,,We,ve been studying the problem for thirtyyears," he said. "stLldying it is great, but we need litiSation to affect change." ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS 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 habitar ofthe Oregon spotted frog, which is protected as a "threatened species" under the Endangered species Act. The suirs weTe recently combined by agreement of all parties. Asicle fronr what he views as antiquated water laws, Dewey poirrted to "two-llamas-and-a-Prius gentleman farmeTs,'whom he claims don't know how to conserve water. "They use their farming losses as a tax write off, and :hey don't even grow anything," he said. "The stale considers almost anything a'beneficial use' of water, so they use their water on big lawns, water leatures atrd so on " Ryan Houston and his group, the Upper Deschures Watershed Council, believe in a more collaborative, less litigious approacl-t to the problem. He says that the river has been [undamental to every stage of Bend's evolution-from early Native American and European settlement, to its heyday as a mill town' to today's touristn and recreatiorr-focused economy. Houston says that we're still wrestlingwith 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 decacjes, even centuries to right, so his organization is helping to TestoTe that habitat balance by placing dead wood back in the river. But boaters, floaters aId others who recreate on the I iver al en't always happy about that. ,,People floating the river don't want a huge 150-foot-tall ponderosa pine in their way as tlrey float dowt'l the river,,'says HoLlston, a native of southern california who moved to Bend in 2001 And so, the debate over how [o manage the river isn't just about streamflow, and it's not just fishermen and conserv.rtionists versLls big agriculture. Add issues suclr as restoring the riveI lrahrital alrd the interestsoftoUrismandrecreation,anclyouhaveacontentiousstewindeecl Fewknowtroreabout being caught in the middle of these competing interests than Tod Heisler, the executive director of The Deschu[es River Conservancy, a Bend-based nonprotit that is coordinating the Upper Deschutes Basin study, a 5'1 .5 million collaborative process that seeks to "provicle a road map to meet water needs for rivers, agricultuTe and communities for the next fifty years " Heisler says that while the problem stretch or the upper Deschutes appears to present a "seemingly lntractable,,set of issues, he believes an agreemenr could be reached in one of tlrree ways: through the courts, via the spotted frog lawsuit, thror-rgh the voluntary basin-str-rdy groLlp process, or through Ihe regulatory process, based on the habitat conservation plan being prepared by the irrigation districts and the city of Prineville. (ln the Ialter scenario, this Sroup is seeking a permit that would essentially exempt them from lawsuits such as the spotted frog one. Their habitat conservation plan, whiclr would need to be approved by two federal agencies, and withstand scrutiny and, potentially, lawstrits from environrnental 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 clesk," Heisler said "lt's going to be a solutions-based Study, based on Science, that could result in the negotiation ofa regional water management agreeement Central Oregon so urgently needs " THE TECHNOCRATS lf you saw Douglas DeFlitch sitting in a corner of the Bluebird colfee company, steeping a cup of black tea, you miglrr guess that he works for an environmental NGO, rather than BoR. Yancy Lind only "half- facetiously" described DeFlitch, who manages BoR',s Send Field office, as "the enemy." BLlt when I met https://bendmagazine.com/the-deschutes-basinsJast-great-problem/61l',! Exhibit 33 nttns ://bffitT bTTl."schutes-basins-last-sreat-problem/11119121 ,12:37 PM him, he had a week's beard growth atrd wore ' Friday," he explained. And when asked about I ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS not at all like the stereotype of the secretive gove[nmenf btlreaucrat' ,,lt 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 pLlt more water inslreanl to solve the problem " DeFlitch contends that management of the river has been tiltirrg more toward the natural errd of the spectrum in recent years and will continue in that clirectlon But he cautions that changes cannot happerr overnight because irrigators have rights that are enshrined in law, and maintains that the current system delivers large economic benefits to central oreSon. "we've Srown economies based upon a particular use of the river so you need to take that into consicleration before you change from the way the river lras been managed," he said. Kyle Gorman, a region manager for oregon's water Resources Department, was moTe blunt [han DeFlitch in attempring to refute claims l'd lreard from conservationists l'd heard that the existing "use it or lose it" water laws encourage waste, but Gorman says not so, because rhose who don't rreed their water can lease it back instream and not lose their water rights Environmentalists complained to me that the required,,bene[icial use" oIwater can include anything, even watering rocks, but Gorman scolls at this notion, insisting that regional watermasters investigate reports of this kind of misuse (Tlrough he admits that there'S nothing the state can do if farmers want to have big lawtrs 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, theywere promised those rights and rold if they develolred the land and continued to use the water, they could retain those rights," he said, "You can't take sonrething away from Someone by jUSt pointing a [inger and saying,,l don,t like that, l Want it changed,,to the detriment of soTf eone else's investment that they've made " THE FARMERS AND RANCHERS Matt Borlen's ra.ch is sitLlatecl lust 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 lence and study passersby. Given fhe arid landscape, water rights are no trifling manner in these parts Br-rt Borlen is an optimist, and he greeted me on a blustery morning in early Febtr"tarywith a smtle and apologies for "being so dirty " Borlen and his father, Bob, humanely raise cattle and provide ground beelthat is used in the bLrrgers at the Deschutes Brewery Pub and other area restatlr ants' During the irriga|on season, rhey order their water from rhe central oregon lrrigation District (colD) The water comes to them through the central oregon canal, which flows behind Fred Meyer, and through the Pilot Butte canat to a sub-canal that flows throuSh their property That carral leads to a pond where a pLlmp 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 wincl Borlen said that he's invested tens of thousands of dollars in infrastruCture impTovements to make more efficient use oftheir!vater resources. He loves frogs and wildlife and "all the other thinSs that everyone loves about livlng here" but is frustrated by the lawsuit' ,,we all have to eat," he said. "Food has to be produced somewhere. we want to buv 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 orr lawyers cor:ld be spent on conservation, and ultimately we'll lrave to pass those (legal) costs on to our ctlstomers https://bendmagazine.com/the-deschutes-basins-last-great-problem/ 7 111 11119121 ,12:37 PM lasked Borlen about some of the "two llamas community wasn't as tight-knit as it was years doing. But COID's Shon Rae, who grew up on a [arm in Redmond, said that it's harder for small farmers [o 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 satd of the critics. "They're saying that it's wrong to have a smallfarm, they're telling people how to live. We don't rell them how to live " Seth Klann is a seventh-generation farmerwhose family migrated to Oregon becarlse of the Homestead Actof 1862,whichencouragedwesternmigrationbyprovidingsettlers160acresof publicland Hehasa 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 distrlcl-which has the most recent (from 1916) and rhus most junior water righrs in the region-he and other farmers "at the end of the irrigation Iine,,have had no choice but to invest in technology to be resource ellicient. Klann believes that the oregon spotted frog lawsuit could have huge implications for every farmer and rancher in the regi o n. ,,FarmeTs aren't making inrrastructure investments because they're afraid they might lose theirwater rights," he says. "lf the water goes away, Madras will become a ghost town " Klannsaysthattheygerjusteightinchesof rainperyearinMadrasbutneedtwentytomallbarley He wants to plead his case and that of other farmers in the court of public opinion, ralher than in a court or law. "l'm frustrated because my family poured so much work inlo this place, moving lava rock, surviving depressions and droughts," he said, his voice rising. "We make due with so little \'vater and now everything -allthe hard work- could be wiped away by one lawsuit " Exhibit 33 nnor'ro$flAn6t,8" bTTlo"schutes-basins-la st-g reat-problem/ ADVENTURE NEWS & FEATURES FOOD & DRINK EVENTS i I l I https://bendmagazine.com/the-deschutes-basinslast-great-problem/8111 111'19121 ,12:37 PM Exhibit 33 nno.,to?ofl En6t'9"bTTlo"schutes-basins-last-sreat-problem/ADVENTURE NEISS & FEATURES FOOD & DRINK EVENTS r 4.4v# i.hcrur {bF:tl l+ "ot?aihn iS letr ,B liprr] lltl li&{Lt lld f,En.J aftl l8r&tr g1lthrn r!l\r, llE:!w tqs . rrj.llienlc. tsvr.{,e $;lB,!r.{ qrn$J . w6tif& ?o istlLtD^ . iw i€l* '!4r{€a!urd .!* Fr!{ . rdsGjll 4.ltnit \.'3]f i#l . hll*:Jt t,rdnig{ lirlltt . iftrxr3JreiJ l!rhr:!t Lv ill,lth lltr-. - I : r.-t -:-i.t;iitit: :;il: itq6 ter! ?ilrf drdiliftia& ,.\1 )t l'ia)t) 'h €riI*{E.n liirl{il,:.rrxJrl,8s.dtf . r*sls iiH: rlers tkrin llE imlnia h ild lriar nolcJ ligi ,a0d[ ;r thr stwl . hxl du flp:lifrlda{rilB llilldll€ !0a {trrj \w$ iJ{ Etlr *jg i?q$ . 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SOLUTIONS on a life-affirming, perfect sarurday in January, the l<ind of day where the sun plants a golden kiss on the snowcapped mountains, I could hear the reassuring gr-rrgle of whychus creek, a tributary of the Middle Deschutes, before I could see it. I parked at the whychus creek trailhead, off Forest Road 1 6 sourh of Sisters, and the sound hit me immediately. l'd come to check oLlt the Whychus because Douglas DeFlitch and others told me it vvas a great example of the positive work that's been done to restore streamflow in the Middle Deschutes region, which had rhe opposite streamflow problem than the upper Deschules (heavy streamflow in winter, low in summer). Walking Llpstream along tlre wlrychus creek trail, alongside the reassLlrlngly regular streamflow, I coutd see and hear that they were right' Four days later, at the urging of Yancy Lind and many olhers wlro had encouraged me ro see Ihe ,,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. h was another gorgeoLls day, br-rt the place was deserted, save for one old man with a long gray beard riding his bike with a fluffy old English sheepdog in low. This time, even though I could see the river below, I recogrrizecl the problem right away: I couldrfreorit I crept closer and could see sections were frozen, and what was flowing was sluggish' almost stagnant l stood close to the riverbank and had to remain perlectly stilljLrst to hear the anemic [low Who is going to arw * &l Ft. st S tt o{ @Ri lo dEr. dnd' & B &@b eretmqls) https://bendmagazine.com/the-deschutes-basinsJast-great-problem/9111 1111912'l, 12:37 PM fix this mess, lwondered. Will it be a judge? A people who live here and hold this iconic river Exhibit 33 hft os://bprdmaOalb H,T f "schutes-basins-last-great-problem/ FOOD & DRINK EVENTS Kyle Gorrnan believes that we need public funding to help irrigation interests create infrastructure that will allow the,.n to Use water more efficiently. PaLll 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 solutlon 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 ofthe grassroots "bucket brigades" efforts in tlre fall of 2o14 and 201 5 that rescued hr.rndreds of fish. He saw how concerned citizens, anticipating that low streamflows could trap and kill fjsh, got togerher 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 daywith perfect blue skies, past all these tall trees with their red bark through these gentle currents ofthe 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 "l still love this river and I believe we can fix it." ADVENTURE NEWS & FEATURES I-OCAI, \IOUN f.\IN BIKI]\'iC " ;!-lr,{ TIIE ROARIN6 FAPIDS OF BENhANI FAI'I S ON THE DESCHUTES IUST AEOVE BEIiD _E*#5 x I Share This Article ,. SURI:IN(; 0N GOI-I'BOr\RI)S https://bendmagazine.com/the-deschutes-basins-las!great-problem/ WE ALSO RECOMMEND 10t11 .rtl 11l1gl2'l ,12137 PM BEND ARTIST SARAH ROOT CREATES SKETCHES INSPIRED BY WILDLIFE Exhibit 33 httes ://bfli$EE"TI tf TTeschutes-basi ns-last-sreat-problem/ MEET LEW HOLLANDER, WORLD CHAMPION ENDURANCE ATHLETE AND PHYSICIST THRIVING AT 90 ADVENTURE AS TRASH PILES UP AND TRAILS WEAR DOVN, HERE'S HOW WE CAN ALL HELP KEEP BEND GREEN NEVS & FEATURES FOOD & DRINK EVENTS 2l uNIquE WAYS - SUMMER IN BE} CENTRAL OR BEND'S BELOVED SHEVLIN PARK AND DRAKE PARK CELEBRATE TOO YEAR ANNIVERSARIES sfGlt COPYRIGH'I-(O 2O2I ' ORIGON MEDIA LL(] BEND MAGAZINE: ABoUT US CONT CT Us ADYERTISE CoMPANY: g&IyAgLlgJJllI . P UB I-I SH ER',S Lll',l"f IIR A slg-o N-MID! .!!C SUBSCRIBE: GlJl-:\-Glft suBscRtPTIoNs https://bendmagazine.com/the-deschutes-basins-last-great-problem/'11t11 11119121 ,12:47 PM MENU we) ktvz.com Exhibit 34 c.o. farmers, turnn"p8E]g'T tf $ouotrt, seek chanses in wildlife habitat plan - KrVZ -;o:510 Environment By Carly Keenan Published August 17,2O2t 12:00 PM C.O. farmers, stru ggling to survive amid d roug ht, seek cha nges in wild life ha bitat pla n C.O. farmers struggle to irrigate crops amid drough.-. https://ktvz.com/news/environm enll2121tO8l17/spotted-frog-debate-returns-amid-drought-c-o-farmers-meeting-to-build-support/1116 11119121,12:47 PM MENU Exhibit 34 C.O.farmers,strusslirptosuw,"ttf$ouOnt'seekchangesinwildlifehabitatplan-KTVZ WA ktvz.com + BEND, Ore. (KTVZ) -- The Deschutes Basin Habitat Conservation Plan protects spol 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. 510 ADVERTISING "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. HegavethisstatementtoNewsChannel 21: "Wearewell awareof thisyear'shistoric water shortages and the impacts to fish and wildlife. A century ago, the water that https://ktvz.com/news/environm entt2021logl17/spotted-frog-debate-returns-amid-droughLc-o-farmefs-meeting-to-build-support/2116 111'19121 ,12:47 PM Exhibit 34 C.o.farmers,struoolirptosurv."jHf$ouorrt'seekchangesinwildlifehabitatplan.KTVZ ,OJ 510 MENU ktvz.com "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. " 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 https://ktvz.com/news/environm enlt2o21logl17 tspotted-frog-debate-returns-amid-drought-c-o-farmers-meeting-to-build-support/ wa 3/1 6 Exhibit 35 Page I of 6 n Water Resou rces DeP arttnent ?25 Summer StNE, SuiteA Salem, OR 97301 (503) 986-0900 Fax (503) 986-0904 Kate Brown, ThankYou DATE:30202 I Pinnacle Utilities, LLC & Centra| Land & Cattle ComPanY, LLC 2447 NW CanYon Drive Redmond, Oregon 97756 Thank you for participating in the Short-Term lnstream Leasing Program. I want to express appreciation for your cooperation in helping to improve stream flows for fish and aquatic life. Enclosed is a copy of the final order approving instream lease lL-1874. lf you have any questions, please call me at (503) 979-9872. si +w Sarah Henderson Transfer and Conservation Section cc Jeremy Giffin, Watermaster District #Ll (via e'mail) John Shoii (vio e-mail) File lL-1874 Enclosure 14 Exhibit 3 5 Page 2 of 6 Exhibit 3 5 Page 3 of 6 SEFORE THE WATER RESOURCES DEPARTMENT OF THE STATE OF OREGON ln the Matter of lnstream Lease Application l lL-1874, Deschutes CountY ) Use: Season of Use: Priority Dates: QuantitY: Source: DETERMINATTON and FTNAL ORDER ON PROPOSED INSTREAM LEASE Authority Oregon Revised Sratute (ORS) 537.348 establishes the process in which a water right holder may submit a request to lease an existing water right for instream purposes' Oregon Administrative Rule {oAR} chapter 690, Division 077 implements the statutes and provides the Department's procedures and criteria for evaluating instream lease applications' Lessor Pinnacle Utilities, LLC & CentraI Land & Cattle ComPanY, LLC 2447 NW CanYon Drive Redmond, Oregon 97756 Findings of Fact 1. On May 18, 2021, Pinnacte Utilities, LLC and Central Land & Cattle Company, LLC filed an application to lease a portion of Certificate 90239 for instream use' The Department assigned the application number IL-1874' 2. The portion of the right to be leased is as follows: Certificate;90239 in the name of La Pine Cooperative Water Association (confirmed by the Deschutes River Decree, of record at Salem, in the Order Record of the Water Resources Director in Volume 15, Page L85) lrrigation of 50.0 acres April l to November 1 April30, 1902 Rate/Volume: The amount of water used for irrigation, together with the amount secured under any other right existing for the same lands, is limited to a diversion of 1/40th of one cubic foot per second, or its equivalent for each acre irrigation, from May 23 to August 20, and l/gCtn of one cubic foot per second, or its equivalent for each acre irrigated, from Apri! 1to May 23 and from August 20 to November 1, and shall be further limited to a diversion of not to exceed 4,0 acre-feet per acre for each acre irrigated during the irrigation season of each year' LITTLE DESCHUTES RIVER, tributary to the DESCHUTES RIVER This t5 final order tn other than contested case.This order ls subject to judicial revrew under 0Rs 183.484.Any petition for judicial review must be filed within the 50 day time period specified by oRS 183.484{2)Pursuant to oR5 536 075 and OAR L37-004-0080 you may either petition for iudicial revrew 0r petition ihe Director for reconsideration of this order A petition far reconsideration may granted or denied by the Director,and if no astion ls taken withln 60 the date n shall be dee med denieddaysfollowithewas be the lL-1874.ord.approve.sah Page I of 4 Special OrderVolume \20 PaeelQO'-l TwP Rng Mer 5ec a-a Measured Distances 23S 9F WM ?4 SW sVU 550 FEET NORTH AND 11"50 FEET EAST FROM IHE 5W CORNER OF SETTION 34 Exhibit 3 5 Page 4 of 6 Authorized Point of Diversion tpOOl: Authorired Place of Use: Twp Rns Mer 5ec aa Tex lot Acres 225 10E WM 34 NW NE 2803 15.9 225 10E WM 34 NE NW 2803 10.5 225 10E WM 34 5E NW 2803 75.7 22s 10E WM 34 NE 5W 2803 5.9 Total 50.0 3. The lease application includes the information required under OAR 590-077-0076(3). The Department provided notice of the lease application pursuant to OAR 690-077-0077(1), No comments were received. 4. The instream use is as follows: Little Deschutes River, tributary to the Deschutes River lnstream Point: At the POD (as desmibed in Finding of Fast No. 2) Priority Dale lnstream Rate tcfs)lnstream Volume {AF}Period Protected lnstream April 30.1902 0.62s 200.0 Aoril l throurh Mav 22 1.250 May 23 through August 19 0.525 Ausust 20 throueh October 31 5. The amount and timing of the proposed instream flow is allowable within the limits and use of the originalwater right. 6. The protection of flows within the proposed reach is appropriate, considering: a. The instream water use begins at the recorded point of diversion; b. The location of confluences with other streams downstream of the point of diversion. c. There are known areas of natural loss of streamflow to the river bed downstream frorn the point of diversion; and d. Any return flows resulting from the exercise of the existing water right would re-enter the river downstream of the point of the instream w€ter right, 7. The total monthly quantities of water to be protected under the existing and proposed instream rights in the reach will provide for a beneficial purpose. 8. The total monthly quantities of water to be protected instream under existing and proposed instream rights in the reach do not exceed the estimated average natural flow. I L-1874.ord. approve.sa h Page 2 of4 specialOrderVolume t?0 Paee \(IJS 9 Exhibit 35 Page 5 of 6 lf approved, this instream lease is not reasonably expected to slgnificantly affect land use as prescribed by oRS 197.180, oAR Chapter 660, Divisions 30 and 31' and oAR chapter 690' L0. Based upon review of the application, information provided by the Department s Watermaster, and other available information, the Department finds that the lease will not result in iniury or enlargement. The order approving this instream lease may be modified or revokedunderoAR690.0TT.oaTTiftheDepartmentlaterfindsthattheleaseiscausing injurytoanyexistingwaterrightorenlargementoftheoriginalright. 11. lf a right which has been leased is later proposed to be leased again' transferred and/or reviewed under an allocation of conserved water, a new injury review shall be required' For example, instream transfers will be subject to a full and complete review to determine consistency with the requirements of oAR chapter 690, Division 380 and Division 077' Approval of thls lease does not establish a precedent for appr6val of any future Division 5. transactions. the DePartment. Conclusions of Law 12. The Lessor haS requested that the lease terminate on october 37'2076' however the fiVe- year period allowed would terminate the lease on october 31' 2025' The lease may commence on the date this final order is signed' L3. The Lessor has requested the option of terminating the lease early with written notice to The Department concludes that the lease will not result in iniury or enlargement' oAR 690-07 7^oa77 . The lease conforms to the applicable provisions of oAR 690-077-0015' Now, therefore it is ORDERED: 1. The Lease as described herein is APPROVED' z. During each year of the term of the lease, the former place of use will no longer receive water as part of these rights, any supplemental rights, or any other layered irrigatian water rights, including ground water registrations and permits' 3.Thetermoftheleasewillcommenceuponapprovaloftheinstreamleaseandterminateon October 3L,ZO1S, For multiyear leases, the lessor and Lessee shall have the option of terminating the lease with written notice to the Department provided to both the salem office and watermaster office. written notice of termination of a lease must be provided by all Lessors and the Lessee. The lease may be terminated at any time during a calendar year. However, if the termination request is received less than 3o-days prior to the instreamuseperiod(Aprilltooctober3l}orafterthewaterrights,originalperiodof allowed use has begun, the Department may issue an order terminating the lease but use of lL-1874.ord.a PProve'sah Page 3 of 4 special order volume 11O eage IIXLq Eiliibit 35 Page 6 of 6 !trater may allowed until the following calendar year, unless the Director determines that enlargement would not occur. Dated at Salern, Oregon this day Lisa J. lno Mailing dote Conservation Section Manager, for Byler, Director, Oregon Water Resources Department 2021 Thls document was grepared by Saroh Henderson. lf you hove any questions, please call 503-9?9-9872" N302021 I L-1874.ord.approve.sah Page 4 of 4 Special Order Volume 1?0 fage \O\ O Exhibit 36 Pase 1 of3 Department of Fish and Wildlife High Desert Region 61374 Parrell Road Bend, OR 97702 (s4l) 388-6363 FAX (541) 388-6281Theodorre R Kulongoski, Govemm June 1 3, 2008 Deschutes County Community Development Department Planning Division 117 NW Lafayette Ave Bend, OR 9770't 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) appiication'for a Final Master Plan approval relative to meeting Deschutes County Code 18.1 13.070(D): " Any ne'gative impact on fish and witdtife resources will be completely mitigated so that there is no net /oss or nef 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/mitiqation policv.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 lmpact Assessment @assessment(WHlA)submittedbytheResortintheirFinalMasterPlanisthemost 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 itJlimitations. 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. Howevei, 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 develofed for elch of the seven selected wildlife evaluation species in central Oregon. Modelfactors and factor weights within each model would be based on subjective professionaljudgment garnered from literature reviews. For some potential impacts, such as wildlife impacts associated with increased traffic along Cline Falls Highway, there is noi a good methodology to assess those projected impacts. This leaves the developer's consultant and ODFW relying more extensiveiy on professionaljudgment rather than a methodology that could provide a more quantifiable finding that could be more quantifiably mitigated. Wildlife Mitiqation Plan @ationplan(WMP)describedbothonsiteandoffsitemitigationmeasUreSthatwillneedto 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 improu" the feasibility that the mitigation measures will be implemented as described, there are provisions within the WMP to help Deichutes County, the regulatory agency, ODFW, and BLM track implementation. The following statement summarizes those provisions (page 14 WMP): Exhibit 36 Page 2 of 3 ODFW Comments Thornburgh Destination Resort - Final Master Plan Fish and Wildlife Assessment and Mitigation Measures Page 2 of3 "TRC [Thornburgh Resort Company] shatt prepare an annual report for Deschufes County, BLM, and 1DFW by Dece"mber 31, whici deiiribes ihe mitigation fasks compteted and associated expenditures. TRC, Deschutes County, ODFW, and BLM wittmeet annuatty to review a-nd c.onfirm that mitigation is being imptemintea as Sesigned untit mitigation is futty completed and a funding source is in place to assure long-term maintenahceis esfabfi'she d. Any of these entities may perform an annual inspection upon request." potential lmpacts of Ground Water Withdrawals on Fish Habitat and Mitiqation Measures The Thornburgh Resort development plans to use up to 9.97 cfs Q,129 acre feet) of groundwater to provide water for the resort and will do so in two phases. The company applied for a groundwaterpermit within the Deschutes Groundwater Study Area. When o'btaining a groundwater permit in the Deschutes Groundwater Study Area a proposed water use generates a "MitigatiJn oioligation" which must be offset by "Mitigation credits" for the volume bt ionsumptive use df tne groundwatJr permit ap'plication. The oregon water Resources Department' (owRD) determined the mitigation r-equirement to be 1,356 acre feet. As required by the Deschutes Basin Groundwater rirriiilation Rutes (oAR 690-5bs-0600 to 0630) Thornburgh Resort LLC obtained these "Mitigation credits" t-o offset their new use of groundwater. The oWno determined the zone of impact to be the "General Zone of lmpact,'. To meet theirinitigation obligation the resort development company proposes transferring water in- stream from a combination-of Centralbregon lrrigation District (GOID) and Big Falls Ranch water rights' under state law the Thornburgh Resort LLC has fully met its mitigation requirements for offsetting its groundw-ater use in the Deschutes Groundivater Study Area. However, the Deschutes County Code ("DCC") 18.1 13.070 (D), has a different standard that applies. The county code states, "Any negative impact on fish and wildlife resources will be completely mitigated "o it'rrt there is no n-et loss or net degradation of the resource'" The OWRD groundwater usamitig-ation requirements do not cover all impacts of pumping gro_undwater in the Deschutes Groundwater Study Area. The'oregon Water Resource Department and United States Geological Service's groundwater model indicates that gioundwater 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 pioulj1ng unique habitat for a nuniber 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 sirear. 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 t habitat under ODFW,s mitigation criteria beiause they-are considered irreplaceable. However, in this particular case a component oi the mitigation proposed by the resort developer is to acquire water rights that would open up a spring source currenl! being used for irrigation. As directed in ODFW's mitigation policy, habitat that can be mitigated is in categories 2 tirough o. ln ftris particular case the potential rmpact to springs and seeps will likely be migiateO by transfJrrinj springs iows used for irrigation djrectly back into Deep Canyon Creek and the Deschutes River. Thes; silrinis should provide stmilar 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 g36.g2affromBigFallsianctrforatotalof 1,354af. Thesewaterrightsarebothirrigationrightswithaseason ;i;;;'Ap;i'r;io p"""ro"r 1'r (214 days). The '1,354 af will be a consumptive use spread out over the entire year or an average Oaily impacted of 3.71 E aflday which equates to 1.87 cfs. As shown in Table 1' during the irrrgation season the resort is proposing to provid-e water instream above their average daily impacted both in total anl "= spring water from the Deep Canyon Creek water right' Exhibit 36 Page 3 of3 ODFW Comments Thornburgh Destination Resort - Final Master Plan Fish and Wildlife Assessment and Mitigation Measures Page 3 of3 During the irrigation season when ODFW is most concerned about impacts to springs and flows in the Deschutes Riveritne miti-gation water from the springs in Deep canyon creek exceeds the flows needed to mitigate for poteniial sprin! and seep impacts from th.-e development(1.97 cfs vs 1.87 cfs). Flows from COID during the iitig"tion s"".5n 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 1't and MaiJ ii;ibd;; ihre mttigation water is being provide during the irrigation season..However, because flows are higher and stream temp6ratures lower Ouring tnis time period. ODFW does not believe there will be an adverie 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 instrJam, 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 1g.113.070(D). Mitigattn will be conceptual until measures are implemented, some of which will need to be Table 1 Phase colD Biq Falls Ranch Phase 1 153.43 af 717 afldav 36 cfs 315.0 af 1.472 afldav 74 cfs Phase 2 365.75 af 1.709 86 cfs 527.82 af 2.467 afldav 1.24 cfs Total 519.18 af 2.426 afldav 1.22 cls 836.82 af 3.910 aflday '1.97 cfs maintained in PerPetuitY Sincerely, Amy Stuart Deschutes District Watershed Manager E\hrbil 37PilEc I ol 7c1.1-E4!!=-is4!-------aji9g!!!____t4llgEE@-EI ublrilzrzl I180110ffirq4a*+-wEEo:ffi9t?IOlorItzlrtrlm t!t2,ld=lodlT.aIFIzdoEFLrJulIaEtiJo(-)i.fii. .r,EEr-'-,cLEGENDE(ST]NC CONOI ItrNS A DEMOLtrION PLANsourtsERN RoAo PUN d PRoaLE SIA 0{0 Iu 4!0t--f--:--r-_l+6XoDESCHUIES COUNTY ROAD,//It,/72832Us84IFSITE MAPa?ryryrylni**rSoUTHERN ROAD (BLM) CONSTRUCTION DRAWINGSLOCATED AT TOWNSHIP 15 SOUTH, REGION 12 EAST SECTIONS 28 &29DESCHUTES COUNTY, OREGONO\ryNER/DEVELOPERSCALE: r" = 10,000THORNBURGH RESORTCENTRAL LAND A CATTLE COMPANY247 NW CANYON DRREDMOND, OR 97756PH: {541) 350-8479 E\hrbrl 37Prgc 2 ol 7c1.2;-4:Elr).rrljL!9!ssiJ!s----lgl]}&]!s@I oe oz'zozr I180110ffiMk+-WJcoootztLrl-FfoU)E.IEfd]uJFozEBGENERALNOTESRIAL SAFEIY REAlLAIIOtrS' DUSCHUTES COUNfl ANO TNE]R OFFLCALSOVEDCON]RAC]ORiGvmoG. ururir ^no cwiu-c rirenC baewrues. mv ots o No noNs i HA i AFrtc L 1'R oHANGE ral vroRK oES'R EED N I hEcririirci oocuvenispiccreo wiru Ni orsceEPANcrEs ARecoi,iircron cxoos*nisrcri eiuw to veerv hE LolAroN oF ExrsTNc urD ro NorFY rB€ ur LrY 'or/pANrls whENwoirrcir tnap paoxmtvtrcunEsnEcoNnaclonloronrrnorn*zoorloro trto LUN6TN€c!illEerY NOI F cAr€N CENIER rs 150023?.2e!/GENERAL EROSION CONTROL NOTESsPecIoR To orlcuss ERosloN AND]4-tsRSANOsTAgLZEOSACKON ! 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DAYS PRIoR rortsESIAR] oFcoNsrR!.iroNFoRTELEPNON€ FACLLITIEs!WATER MANUAL (COSM )E EXIS]INC SO LS SIALL BI SIRIPP€D OI UNSUITAELE MATER ALSSCAR+I.OANDCOMPA'TEDTOA MAXIMU'iD€NSIITPRLOKTOPLACEMENIOFILL' sBALaBL aoMiA.iEo To A Rioor o' SUBGRAoESHATBEcY A GEO]EINNIIAL bNCLNEERlillH rrc PHovLsUNsor oARcs?jol{090RIALS RlBsLSts ANOOLUHISRESIDMETNObSRE']UIR'O TOFREVEilT tsEIKOFIRAIIONS FKOM PRODlCLNC OPONS CIE FORANYOAMACECAUSED BY DUSIRESULIING FRO[I HLS OPERA] ONS1I ALLoRAUEDANOIORCLARRE-!EOETA]ED OR STABtrIZED INI: CONTRACJOR TO PROVIOE FORERASIONANUURAINAUECONTROL O!RINCORAOING/CLEARINC/CONSIRUClION.P'ROVEDsYENOINIEH. CLTSL1i. lEMPORARYACCESSFORASIMNCD IN ACCOKUAN* 9 TN THES'PLANSnisinaneo Lendns ron rev srRUcTroN PHcNG oh PRESSURERLNI EOtr]O T OI IhEOREGON S Erhrbil l7Prgc I ol 7c1.3-s!.da4i:---------i!gcs..t|i,! MPD!!----1411]]:l!s!!sg-EI r.tvilzuzt I180110Jcoootztul-F=oU)U)zoFOulU)JIIFE.I(,trlmz(oIFffi}\l4rl leWE .\1i&WnwSCREENEO IRENCHsPOtrSTYPICAL SECTION - SOUTHERN ACCESS ROADPRIVATE ROAD TRACT)T?. CONIRAUIOK IOIROVIOE TRENCHEXOAVAION EEOONC]NSTALUTION 9ROCEOURE1 oRrvr 2!2\4 reoD s raKlsALoNGBEI!'ENSTA(ES IUMAICNS'ITCHEO LOOPS IN FABRIC2, DIC d$' IREICA ALONG LINIA OFSILi FENCE ON UPHtrL 5IUE OF STAKES3 PdCE FILIER FABKICMA]ERIAL 1J6'OVERSP TO ADJALENI SOCK1------tr,?:2a-a--lI E'+gq1;@pTHORNBRESORTSOUTHERN ROAD (BLM)EXISTING CONDITIONSoNJHlsltffi lllllilI{WAI'@.Lrir.-\\ItIri1.,IIIII\rItlrr?HWY\qF4{{sI.,,Ictr&€I!6i\"b\\\\ ffios,JSOUTHERN ROAD PLAN & PROFILESTA: 40+00 - 48+50SOUTHERN ROAD (BLM)TTHORNBURGH!@pg,-:t;t:f;tilI\/IIiIiiaIiiIt-@oc+Imuzo+oo--t@+ooo otei€ tsi lEri aa: l;e: EEi l::i i:; l;E! 6il=:t;l4Ala;Flollc:liglm -;lvZatz.:lr:lo5l>IIE:!lrsriIrlo"lTIFlmtl;slilo-l+tlo3lolat^l+;l'ri-..@1L--]i@jl3*: is- FFt!.II/I-tIi Erhrbil l7Pilgc 6 ol 7ffi&4t&4wulJLoEco06oz,$<@LO^6<st'alrlIFfoooEFo-a6_U^IOatrt-zlc(lz+lr=luolT6l-*-.I-!.,,fu-_-EEeca!s--------J!9as------------14I@@I aanteazt Ic3.21801 10N\ROAO CONSTRUCTION NOIESSOUTHERN ROAD PLAN, STA:48+50 TO 58+00^ UUN INUEKUAOIMPROVEMENISI j/'*F. r,Pk A' sFcrrir ir(1 i\'/ rrs qL rr Frs cMpcILVERrr.EtN.rtbTeEXCAVAIT AS NECE5SARY AT INLET OF FIPE IOTX TNDEXISIINGDRAIMGE CE^ I!JURELUIbTRUCTION.II]SIALLDRiUTILIN\lJ rrrrurru rnoveo"eoF RoAowqr SEEDET(LUIu.,'lq:tI..1i',.v:ltJ{:JESOUTHERN ROAD PROFILE, STA:48f50 TO 58+OO Ird=L!gostG)H#[tffi llllilSOUTHERN ROAD PLAN & PROFILESTA: 58+00 - ENDSOUTHERN ROAD (BLM)RTRNBURGH€sp\.t)I.i I.e\I\.lIt\Flcn+13,lrEIIlmIIlzlnlol>loIrItlzt-lalil>t-l@l+lolot;Itt3Iiioooo oo ooii: i:i ;i ii Eii!i i iii:ii ;:I it:: i; E:i: F,ii;: a:;itl:;;5;si'': i ': :;F i:I:ozomom>SEE SHEET C3.2IIATCH STA!13-tLstiilfr;lIllr:lofl>llO!lrl8'lIlnlal+t>lol3loldlm16Iturr4+r+= r?!:;I}Ed=?,x2.>'ai!s-59EEIIlI+Ir:9 9^F9:l,q2"FgIt: Exhibit 3 8 Page I of 4 United States Department of the Interior BLIREAU OF LAND MANAGEMENT Prineville District Office 3050 NE 3'd Street Prineville, Oregon 97?54 JUll I t ton ln Reply Refer To: 2800 (oRP060) oRoR 061170 CERTIFIED L4AIL -7020 0640 0000 8436 e760 RETURN RECEIPT REQUESTED DECISION Central Land & Cattle, LLC 2447 NW Canyon Drive Redmond, OR 97756 6 Exhibit A*Corrected Willamette Meridian, Oregon T. 15 S., R. 12 8., sec. 33, NYNW%' Right-oFWay Amendment No. I OROR 061170 and On July 16, 2007, the Bureau of Land Management (BLM) Prineville District Offiee (PRDO) irru.Jrigfri-ot'-way (Rosr) OROR 061 170, iuthorizing asphalted access roads and a bike path, "n g-i'd'r"wer pipeiine, 8-12 inch water pipeline, and two signs on public lalds.west of R.a*ond. Oregon-in the Cline Buttes area. 'l'he ROW issued includes the lollowing described lands: Willamette Meridian, 0regon T. l5 S., R. 12 8., sec. 8, E%; sec.9, W%SW%I sec.28, S%SW%; sec. 29, W/zN%NW%; sec. 30, NE%NE'I. Upon review of the grant, it was noted that the legal land description and exhibit did not reflect the southern access route correctly and revealed the need to correct this grant to ensure accurate records. This decision hereby amenls the RoW grant to include the following described lands: Exhibit 3 8 Page 2 of 4 Please replace the original Exhibit A for ROW grant OROR 061170 with the conected Exhibit A. (enclosed) for your records. The issuance of this ROW amendment constitutes a final decision by the Bureau of Land Management in this maner. This deeisioo may be appealed to the lnterior Board of Land Appeals, Office of the Secretary', in accordance with the regulations contained in 43 CFR, Paft 4 and the enclosed Form 1842-1. lf an appeal is taken, your notice of appeal must be filed in this offrce (at the above address) within 30 days from receipt of this decision. The appellant has the burden of showing that the decision appealed from is in error. [f ycu wish to lile a petition pursuant to regulation 43 CFR 4.21 (58 FR 4939, January 19, 1993) or 43 CFR 2881.l0 for a stay of the effectiveness of this decision during the time that yor:r appeal is being reviewed by the Board, the petition for a stay must accompany your notice of appeal. A petition tbr a stay is required to show sufficient justification based on the standards listed below. Copies of the notice of appeal and petition for a stay must also be submitted to each party named in this decision and to the Interior Board of Land Appeals and to the appropriate Office of the Solicitor (43 CFR 4.413) at the same time the original documents are filed with this office. If you request a stay, you have the burden of proof to demonstrate that a stay should be granted. Standards for Obtainine A Stay Except as otherwise provided by law or other pertinent regulation, a petitiort for a stay of a decision pending appcal shall show sufficient justifi.cation based on the following standards: (1) The relative harm to the parties if the stay is granted or denied, (2) The likelihood of the appellant's success on the merits, (3) The likelihood of immediate and ineparable harm if the stay is not granted, and (4) Whether the public interest favors gxanting the stay. If you have any questions please contact Michaela Rodrigue z. Realty Specialist, at 54 I -'l I 6-67 52 or by email at mmrodriguez@blm.gov. Sincerely, Field Manager, Deschutes Field Offrce 2 Enciozures Form 1842.1 (Septemhcr 3006) Exhibit 3 B Page 3 of 4 UNITED STATES DEPARTMENT OF THE INTEzuOR BUREAU OF LAND MANAC}EMENT INFORMATION ON TAKING APPEALS TO THE INTERIOR BOARD OF LAND APPEALS DO NOT APPEAL UNLESS 1, thls dq!:ision is adverse to You, AND 2. You believe it is incorrect IF YOU APPEA L. THE FOLLOWING PROCEDURES MUST BE FOLLOWED L NO'nCE Ol- APPTAL .-., . I, WIIERIJ 1'C' TILI NOl-!Cli rrl.' APPIiAI. WITH COPY TO SOLICI'IOR.., USD[, Bureau r:f Lund Mangemcnt Princvillc Distnci ofildc l0S0 N.Fl. Thrrd Slrwt Prineville.0R 97754 lJllicc of tlre Rcgtonal Solitjilor: Pircilrc Northwcst llcgitrrt 80J SW Broadrvay, Suite 600 Por"tlgnd, OR 9??05 3. STr\'fEll'IFl5T 0F FfASONS wt1'H COPY'lo sol.lcrroR.., .... Wirhin 3tl davs aicr filing the Notice oJ'Appeal. filc a complctc slatcment of dre reasons why.vou are.apperJfrg' iilt:";uirT;.iffi';iii;'it';'i';ikJ-sii,.Jb.po.r*cnt ot'ihc fntcrior, ()t'tice olHeurinss ant-l Appcals. lnterior U;;;i;L*.i Appeats, tor r.r, Qirincv Streqi: Ms 100-QC. Arling{on, Virginia 22203 If vou tull;- statcd ;;;;il; fri',ipp"nri"e ivhen filing the Notice afAppeal, no additianal sutement is nctcssary' il; crn 4.4 l2 and 4,4 I 3). Office ofthe Rcgional Solicitor: Pscific ltiortbrvcst Region S05 5W Uroadrvay, Sute 600 Ponland. tlR t1205 {. A|}}'ERSE TARTIES Within 15 days atier each document is filed' each Solicitr:r or Fletrl Sd{icitor having jurisdiclion over copy ol: ia) thc Noti<;e qf lppeal. (b) thc Statcmc:nt i43 CFR 4.41i), ndverse pafy named in the dccision snd thc Regional dre Statoin *hi"h tlt" appcal arose must bc scn'ed rvith a of Reasons, mtl {c) any other documents filed 5. PROOT OF STRVICT 6. REQUIiST FOR STTIY Exeent rvhere nrogram-spccific rcgulations pluce lhis decision in full force atrd cfl'ect_or prolide fbr an ilt;,,il,;;';;y:'il;';;;i;l;; b;coniciefltctive upon the expiration ot'the time-allo.wed tbr filing ln appcal ,.. unless a Detitron lor t ttty it-*ttiJ: fl'leJ rogcrttir rvilh a MrlrcE ol lppeal (43 l-'rR 4 ?-l)' ll you rrish to' lile l".lliri;",i tiii".'ri;i' ;i,-d- .ri..iiu.n** ol'ihis decision during lhi tiiie that your irppcal rs.br:i"e,'.*ll".T:* bi-, ill;i;;;; b,;-r.t tittnn,t ,\ppeals, thc pctitidn lbr n stay musl acconrpuny yortr Nir/icr: ,4f 'lppen! (4i CIK 'l'll ", ii'cr,n lgot l0 or a3 iirR iigr rbl A pctition ior a st,ry !s rcluir5! trrshow sufficientlustific*lion ";;r;; ; if.. srinl*,lr f istcO nctow. Copics of the Niltice a-{,lppial anti i'etition t'or a Stav must also be submiued ro esch DBnv rramed in rhis decision and to the trltedor go;ii;fi*J app"iit uttd to theippro-priate c)lfice.of the J.ii.ii"i'7+l Cin l.qi:f ar $e ssme timc rhe originsl dosumcots arc filed rvi*r tlris oflice. If you request a ilt. ;;; i;r; ihs burden of prool' tn dcmonstrate ilrat a stav should bc granted' Staorllrdr for Obtaining a stay. Exccpr as trthenrisc providcd by. law or orhcl pertincnt rqgulations. I iliffi [,,r l--rri "i a .Gcision 'pcnAing appeal shall shorv sufficieni jrrsrilication.basctl on thc lbllorving .. irr"i"iai,-'tii,ii.lr.loriu* rr*t- t.iirl. piniii itttr" sray is.granred or denied.rl) rlre likelihor:d Dl'lhe aFprllant's ;;;;;;; i#;;;; t:: *e'lffiriiioo'a'oi im'nediate-and irrepuablc hamr if the stav is not grantsd. and (4) whether the public intercst f'avors granting the siay l-Inless these orocedures are fbllorved, idenrified by serial number ofthe csse your appeal ivill be suhjeet to dismissal (43 CFR 4.10?). llc ccrltrin that all communicutions arc' being appealed. NOTE: A document is not filer{ undl if is acfually rescived relatng to pmccdure'c and practice involving appeds' (Continued on page 2) in the pmper office t43 CI;R 4.,101(a)). see 43 CFR P(In 4. Subpart B firr gencral rules F RI lE R11E Logend Wllett Eagle Crest Transportallon --r--: Hlghway Loocl Road - New Road Exhibit 3 8 R12E Propefty Adminlstored Landa Bureau of Land Manag€mont State of Oregon Privat6/Othor .+. Exhibit A US DEPARTMENT OFTHE INTERIOR BUREAIJ OF LAND MANAGEMENT PRINEVILLE DISTRICT a o o =z NW Kingwood Dr Willett Pinnacle Eagle Crest 6 F 6Al&ridloul€Etros vtb6ffiMoloddrh 0 5.000 'ffiv Exhibit 39 Page I of27 BEFORE THE HEARINGS OFFICER FOR DESCHUTES COUNTY' ORBGON File Number:247 -21-000508-sP Applicant/Owner:CentralLand and Cattle Company, LLC Attorneys for APPlicant/ Owner: Liz Fancher Ken Katzaroff, Schwabe Williamson & Wyatt Proposal:Site Plan Approval of Overnight Lodging Units Subject PropertY:Tax Lots 7700 and 7800, MaP I 5- l2-00 Planning Staff:Will Groves, Senior Planner LOT OF RECORI) 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-l 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 aL202l-44813 and 2021-44814 that mistakenly conveyed lots authori zed to be created by the Phase A- I tentative plan from Central Land and Cattle Company, LLC to Pinnacle Utilities, LLC. This mistake has been comected by Central Land and Pinnacle as foltows:l A. pinnacle quitctaimed 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 t e t d by the Bxhibit C deed from the State of Oregon to John T. Park, attached, and has I 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 descripiion of one deed and quitclaiming all interest conveyed by the other' Page 1 - CLCC's Lot of Record Evidence (247-21-000508-SP) Exhibit 39 Page 2 of 27 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 misraken recordin g 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. ln LandWatch Lane County v. Lane County (Doughty), - Or LUBA - (LUBA No. 20lg-044, October 15,2019), Exhibit E, LUBA held that deeds that conveyed a larger property into different ownership s in 1992 when partition approval was required did not create new parcels. It explained: "fN]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 " [aJ 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 lnw, division by law requires a subdivision, partition or, prior to the applicability of the land division regulations, a deed conveyance." Respectfully submitted this 3 I't day of August 2021 . LtTTanche'r Liz Fancher, Attorney for Central Land and Cattle Co, LLC 2465 NW Sacagawea Lane Bend, OR 97703 54 I -3 85-3067 (telephone) liz@lizfancher .com (e-m ai I ) Page 2 - CLCC's Lot of Record Evidence (247 -21 -000508-SP) Exhibit 39 E#ffi24 AFTER RECORDING RETURN TO: Central Land and Cattle Company LLC 2447 NW Canyon Drive Redmond, OR 97756 Deschutes county official Records 2021-50325 D-D srn=1 BN 081301202103:38 PM $15.00 $1 1 .oo $10.00 $01 .00 $6.00 $1 03.00 l, Steve Dennison, County Clerk for Oeschutes County, Oregon' certiry that the instrument identilied herein was recorded in the Oflicial Records. Steve Dennison - County Clerk UNTIL A CHANGE IS REQUESTED, ALL TAX STATEMENTS SHALL BE SENT TO: Centrd Land and Cattle Company LLC 2447NW CanyonDrive Redmond, OR 97756 STATUTORY QTIITCI,AIM DEEI) (Oregon) PINNACLE UTILITIES, LLC, au Oregon limited liability company ("Granlor'), releases and quitclaims ro CENTRAL LAND AND CATTLE COMPANY LLC, an Oregon limited liability 6ompany ('Grantee"), all right, title and interest held by Grantor in F:34 nrofrtq described in bxnitit:'e'attached hereto, The conveyance effectuated by this instmment is not intended to create a nsw parcel of lnnd. The true consideration for this conveyance is $299,918.fi1' BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD INQUIRE ABOUT TI-IE PERSON'S RIGHTS, IF .quy, LINDER ORS 19s,300, 195.301 AND 195,305 TO 195.336 Ar{D SECTIONS 5 TO 11, cgli'rgn 424, oREcoN LAws 2007, SECTIONS zTa 9 AND 17, CIIAPTER 855' OREGON LAWS 2009, AND SECfiCINS 2 TO ?, CHAPTER 8, ORECON LAWS 2010. THIS INSTRUMENT DOES NOT AILOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS ATD REGULATIONS, BEFORE SIGNING OR ACCEPTINC THIS INSTRUMENT, TTIE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOIJLD CHECK WITH TTIE APPNOPruATE CITY OR COTINTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISFIED LOT OR pARbEi,;s DEFINED rN oRs 92.010 oR 215.010, To vERIFY TI{E APPRovED usEs OF THE LOT OR PARCEL, TO DETERMINE A}IY LIMITS ON LAWSUITS AGAINST ranr*anta oR FoREST PRACTICES, AS DEFINED IN ORS 30.930, AND TO INQURE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OSNERS, IF ANY, IINDER ORS 19s.300, 195,301 AND 195.305 TO 195.336 AI\ID SECTIONS 5 TO 11, CI{APTER 424, ORECON LAWS 20A7, SECTIONS 2 TO 9 A}'ID 17, C}IAPTER 855, OREGON LAWS 2OO9' AND SECTIONS 2 TO T,CTIAPTER 8, OREGON LAWS 2010. Dared tbis7# auv ot flt'bt-ffi2t, lsignatwre and notwy acfunwledgment dppedr on following page.l RenrrnTo: Deschutes CountY Title ComPanY IltS DOCUHXTT] Hr.p rcn REmrD EY DESCH|.IIE$@UNTYTfi.EcOlrlPANr ASAI{ Affi{MODAIIOtI Ot{tY il H/tS l,lOTE{ E (ATIINED AS TO IIS EXECUTNN on. /lslo ITIS IfFTCT I,'FOT{ Tfl B TTTE I - STATUTORY QIIITCIaIMDEED (ORrGoN) Exhibit 39 Er&iffi24 NOTARY PUBLIC FOR My Commission Expires: GRANTOR: PINNACLE UTILITIES, LLC, limited company Oregon STATE OF ) ) ) ss. County This lvaS limited liability company. @ OFFICIALSTAilIP DAI{ETTA LYlf{f,DEF FIOTARY PTJBLIGOHEAON coMMrssot{ No.971614 MY COlil[tlSSlON EXPIFES FEBBU ARY 1S ,2t4, 2 - STATUTORY QUITCLAIM DEED (ORECON) Exhibit 39 Ee&ffi24 EXIIIBIT A Property A parcbt of larrrl eontanipg,O;50-:acrb_q, moie'oi.less, IocaGd in the NorthiHatf qf th" Soutliiast': ":: 'I; - "--': '"1.-'' Qguao OlftZ,SEr/aI :s"*tio,.2,9;.Torpqlip i.5;$guth, nargq,,IZ,E ti,Wi[q4E#iltaEriaiaq rlseirutes:.G:otnfy;,or;egou, beiug more patticrrlaclf'A+-s-a ed.a+fi 6wsi', southEast e0rnef 90900100" West d ". . . , n! . j:i--rr .: r: .: .,t'. : ._ l "i,;: thebruis:of bearirig#gl'ffi* Agsciiption-ii'Rg.sgrd.of'$urvgy;filed,with thd,p#chutes'9grytf gtu.lleyrlr:s office as',p$20&96. : 3 - STAruroRy Qurrcruu DEen lonrcou) Exhibit 39 Pagff6f{mit B RECORDING COVER SHEET (Please print or tvpe) This cover sheet was prepared by the person preseflUng the instrument for recording. The irformatron m this sheet is a reflectlon of the attached lnstrument and was added for the prrrpose of meeUng first page recording requlrements in the State of Oregon, and does NoT affect the instrument, oRS 205'234 AFTER RECORDING RETURI{ TO: ORS 205,234(1Xc) Deschutes County Ttfle ComPanY 397 SW Upper Terrace Dr Bend, OR 97702 Deschures county ofricial Records 2021-50434 D.D Stn=1 BN 081311202110:35 AM $40.00 $1 1 .oo $10.00 $61 .oo $6.00 $128.00 l, steve Dennison, county clerk for Deschutes county, oregon, certify that the insttument identitied herein was recorded in the official Records. Steve Dennison - County Clerk 4. TR.UE and ACTUAL CONSIDERATION Amount in dollars or other value/property ORS 205.234(1Xd) $ 330,116.00 E othervalue I om.rPropertv other value/pmperty is or of the consideration l. TTTLE(S) OF THE TRAIIISACTTON(S) Sfatutory Quitclaim Deed (Oregon) oRS 20s.23a(lXa) oRs 20s.234(1Xb)2. DTRECT PARfi(rEs) / GRANToR(S) central Land and cattle company LLC oRs ?0s.234(1Xb)3. INDTRECT PARTY(rES) I GRANTEE(S) Pinnacle tftilities LLC 5. SEND TAX STATEITIENTS TO: ORS 20s.234(1)(e) No Change 7. The amount of the monetary obligation imposed by the order or warrant: oRs 20s,234(1X0 $ 6. SATISFACTION Of ORDER OT WARRANT Check one if applicable: ORS 205.234(1Xf) FULL T PARTTAL If this instrument is being Re'Recorded, complete the following statement: BoolVVolume 2021 and Page 44814 r or as Fee Number oRS 20s.244(2) previously recorded in to correct Legal Description Deschutes County TitleRe-recorded at the request of Exhibit 39 Page 7 of27 AFTER RECORDINO RETURN TO: Pinnacle Utilities, LLC 244? NW CanYon Drive Redmond" OR 97756 Deschules county Oficial Records 202144814 D{)Srn=7Ap 071301202102:54 PM $28.00 $11,00 $10.00 $61.00 $6.00 $113.00 l. t{snff Blanl(enEhip. CountY Clcn( tsr Dcschutes county, oregon, dartitv irit tfre inst ri;r€nt ldannfled hErEln wG r$orded in the clerk rewds- Nancy Bhnkenship - County Clerk IY L]I{TIL A C}IANGE IS REQUESTED, ALL TAX STATEMENTS SHALL BE SENT TO: Pinnacle Utilities, LLC 2447 NW Canyon Drive Redmond, OR 97756 STATUTORY QUTTCLAIM DEEI} (Oregon) CENTRAL LAND AND CATTLE COMPANY LLC" an Oregon limited liability oompany ('Grantor"), releases and quitclairns to PINNACLE UTILITIES' LLC an Oregon limited liability compirny f'Grantee';), all rigbt, title and interest held by Grantor in and to the following described real property: The real property described in Exhibit ''A' attached hereto. The true consideration for this convcyance is $330'116'00' BEFORb SICNING OR ACCEPTING THIS INSTRUMENT, TI{E PERSON TRANSFERRINO FEE TITLE SHOTJLD INQUIRE ABOUT THE PERSON'S R[GHTS. IF exy, uunEnoRs 195.300, 195.301 AND 195.305 TO 195-336 AND SECTIONS 5 TO 11, Cffeifen 424, OREGON LAWS zwl, SECTIONS 2 TO 9 AND 17, CFLAPTER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAWS 2O1O' THIS INSTRUMENT DOES T*IOT AtI,OVf USE OF THE PROPERTY DESCRIBED IN THIS TNSTRUMENT IN VIOLATTON OF APPLICABLE LAFID USE LAWS ANI) REG{.JLATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, TIIE PERSON etquplNc FEE TITLE To THE PRSPERTY sHouLD cHEcK wlrH TIIE EPPNOPruETE CITY OR COTINTY PLANNING DEPARTMENT TO VERIFY TIIAT TFIE m-rrr oF LAND BEING TRAIISFERRED IS A T.AWFIJLLY ESTABLISIIED LoT oR. _ PARCEL, AS DEFINED IN ORS 92.010 OR215.OIO, TO VERIFY TFM APPROVED USES OF THE IOT ON PARCEL, TO DETERMINE ANY LIMITS ON LAWSU]TS AGAINST ' FARMING OR FOREST PRACTICES, As DEFINED IN ORS 30.930, A]\lD To INQUIRE ABOUT THE RICHTS OF NEIGHBORING PROPERTY OWNERS, trr ANY' TJNDER ORS 195.300, 195,301 AND 195.305 TO 195.336 AND SECTIONS 5 TO ll, CHAPTER424' OREGON LAWS 2OO?, SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2OO9; AND SECTIONS zTQ7, CHAPTER 8, OREGON LAWS 2O1O' Dated this 30th daY of JulY ,2021. lsignature tmcl nhtary aelmowledgment appear onfollowing page-7 I - SrATU'IC)RY QLTffCLAIMDEED (OREGON) R$rrrnTo:qf"H#H' rt Exhibit 39 Page 8 o AFTER RECORDING RETURN TO Pinnacle Utilities, LLC 2447 NW Canyon Drive Redmond, OR 97756 UNTIL A CIIANGE IS REQUESTED" ALL 'I'AX STATEMENTS SHALL BE SENT TO: Pinnacle Utilities, LLC 2447 NW Canyon Drive Redmond, OR 97756 STATUTORY QUMCLAIM I'EED (Oregon) CENTRAL LAND AND CATTLE COMPANY LLC, an Oregon limited liability oompany f'Grantor"), releases and quitclaims to PINNACLE UTILITIES, LLC an Oregon fimftd iiutitity "o*p*y (,'Grantee;), all rigbt, title and interest held by Grantor in and to the following described real property: The real propefiy described in Exhibit "A" attached lrcreto. The true consideration for this convel'ance is $330,116'00' BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT" THE PERSON TRA}ISFERRING FEE TITLE SHOTJLD INQUIRE ABOUT THE PERSON'S RIGHTS, TF ANY, UNDERORS 195.300, I95.3OI AND 195.305 TO 195.336 AND SECTIONS 5 TO 1I, cHAilrER4z4, oREGoN LAws IIy7,SECTIONS 2Tog AND 17,CHAPTER855, OREGON LAWS 2009. AND SECTIONS 2 TO 7, CHAPTER 8, OREGON LAIS/S 2010. THIS INSTRUMEb{T DOES NOT ALLOW USE OF TIIE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, TT{E PERSON ACQUIRING FEE TITLE'fO'fHE PROPERTY SH0ULD cI{EcK WTTH TI-[E APPNOTNTNTE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT TI{E {.INIT OF LAND BEINC TRA\SFERRED IS A T,AWFTJLLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.OIO OR 215.0T0, TO VERIFY TT{E APPROVED USES OF THE LOT OR PARCEL. TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PzuTCTICES, AS DEFINED IN ORS 30.930, AND TO TNQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, I,JI{DER ORS 19s.300, 195.301 AND 195.305 TO 195.336 AND SECI'IONS 5 TO ll, CHAPTER 424, OREGON LAWS aOOI,SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS ?009, AND SECTIONS 2TO 7, CHAPTER 8, OREGON LAWS 2010. Dated this 30th daY of JulY, 2027- fsignotur e and notary aclmowledgment apryar on following page'7 RefirnTo'.**, r-sraru'ronvQr-rrrcumDeuu(oneaox) q,#H#Ht, Dccfx"*r Tldo Ounty: ltrh: Tlmc: Exhibit 39 Page 9 of 27 cRAt{TOR! CENTRAL LAND AND CATILE COMPANY LLC, an Oregon limited liability company Name: Title: By STATE OF efu County of I This as an Oregon liability company before NOTARY PUBLIC FOR My Commissiorr Expires: methis d*ror irrLV ,zozl-by of Cental Land and Cattle Company LLC, c,8.h ) ) ) ss- 2 - STATTTTORY Qr.nrCI*AIMDEED (oRECON) Exhibit 39 Page I0 of 27 EXHIBIT A ProPertY A pnrcel of lrrd s66lqining 10.?3 rcres, f,sle of less, located in the $outheast Quarter of fte Ssutbeast quffrter (SE1/4 SEI/4), Sectim ?9, Township 15 Smfl1 *flge 12 East, U/illa&€fte Meridian,Drechutee Count5r" oregon, beingmuEpar+suldydescrib€'da$ follsvrrs; Cunme,nci"g at tre soutl4aet comer of snid Secfim ?9 ftm which de nartteast coruer of thc Souflreast Qurter of the Soueeaet Qlmrh (SEU4 SEU4) of said Sectirn 29 besrs Nodl Olo2?23l Wert e distance of 1323,13 fe4 lh€rce Naffr 45o25rl0* 'West a distatree of 72.OS feef to the Trur Polnt of Begirulng of this descriptioq thencc Nmth 89%?43" Wbgt n distance of j2j.00 feeq thence Notdt 01%f55.' West a disturs'e of S27.94 f€€E ftenc+ Horth 15o21'46n Enst a disffice of 5?-?4 fpet thenceNslh 88s3?36't Ea*a distfficc of 507.92 feet thilce Souft olcl?g$n East a distEnce of 901.?? &et to &e Trne. Polnt of Seglnnlng, the teffiiuls of this descripion The baeis ofbearingn fdr &is desrxiptiCItr is Rcced of Strery filed wi& fts Descfufes Cousfy Surveyorr"s office as Cg2O3?6' 3 - STATUTORY QUnCLAIM DEen (OnecOr) Exhibit 39 Page lI of27 EXHISIT A.2 f,'actlity Lot 5 LEGAL DES(nIPTION A parcel of land containing 10,73 acfles, more or less, located in the Sou*teast Quarter of the Southeast Quartm (SEl/4 SEli4), Section 29, Township t5 South, Range 12 East' Willamette Meridinn, Deschutes County, Oregon, being mcre paticuloly described as follows: Commencing at the sor$hast conrcr of said Section 29 from vfrish the northeast oomcr of tbe SoutheastQuarterofdresoutheastQuarter(SE1/4 SEt/4)ofsaidSection29bemsNorth 0loZTZl, *rstadisHrrceof t323.13feet;ihenceNorth45o25'10" Westadistanceof 72.03 feet to the True Point of Beghnfug of this description; thenceNorth 89o22'43o West a distance of 525.00 feet; thenceNorft 01"26'55'T/est a distatrco of 827.94 feeft thenceNorth 15o21'46u East e distance of 57.24 feet; thencc North 88o32'36" East a distaflce af 507 'T2 feefi thence South 0162?'38" East a distance of 901.77 feet to the True Polnt of Beglnnlng, the temrinus of this description. The basis of bearings for this descdption is Record of Sunrey filed with the Desshutes County Sunreyor's offrce as CS20376 See attachedmap litl€d "EXHIBIT B'2', hereby incoryorated by rcference. SPIRE$;12811?t REGtSffTiED PROFEE$OTiUL |jfiiDSUnV'Eldd '! - oREeis.il JUIY 10,2t07', P,ATfi'IdKGIIGE EOLF 751F7 ,/ S:\I-and Projetts\Thornburgfr\docslFacilities Lcgal Descriptron.do+ Exhibit 39 Page 12 of 27 EXIIIBIT 8.2 LOCATED IN THF SOUTHEAST QUARTER OF THE SOUTHEA$T OUARTER ($E1/4 SE1/4} OF SECTION 29. TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M.' DESCHUTES COUNTY, OREGON NECoRIIER sEl/4SE1/4 SECTION zEI NORTH N8E'32'J6'E 507,9?' Nr5?t'48'E 57.24' rn rt)FIF} Brl -(rlF E''loz '$/r1,S# 'gl[16t'{l f: ogt IJ d!J.t N f''t E}th rl.o! t\d Ftno .Otl 6 7//28/21 EXPTRE$ 12'3ln1 TRUE POINT OF BEGINNING 0"w 72,0J'NgE'??'q3"$J g25,oo' .-, l4 *EU'1,S'i, POINTOF @MMENCEIVIEFIT SE CORNER SECTION 2S -uft'sI'Jf S:n{ Pro 1801 toA-D tonS Jul 28, 2O21 FACILIWLOTs REGISTERED PROFES$IONAL LAND SURVFTOR 'ttuhifr. OREGON JULY IO, 2OO? PATRICK GAGE COLE 7S157 FACILIry LOT 5 CENTRAL LAND AND CATTLE COMPANY LLC SfrIEET 212 OATE; ?12912021SCALE'1"=200'bRAVVN BY: AQRHWA srj|\lEvtFrG I Exhibit 39 Page 13 of 27 ExHtetT.. e- The southeast Quarter of the southeast Quarter (sE1/4SEu4) of section Twenty-nine (29), Township Fifteen (15) South, Range Twelve (12), East of the Willamette Meridian, Deschutes County, Oregon. This property is part of the Thornburgh Resort and is subject to the provisions of the Final Master Plan for Thornburgh Resort and the Declaration of Covenants, Conditions and Restriction of Thornburgh Resort, The final Master plan and the Declaration contain a delineation of open space areas that shall be maintained as open space areas in perpetuity Map and Tax Lot Number 15 12 00 0O 0780L Exhibir 39 No.$+4"1 Frreo Mrv 21 ,'lgl8, Ar I:l) orcLocr'P.u.'- I : J. H. HANER, CoUNTY CLERK. APPL r cAr r oN No. T. l.P. I 0 I -g,grc-g-9.!:-co- DEED No . ,t, 5b $tare or 0REcoN' TO JoHN T. FARK. KNow ALL MEN sY Txsse Pneseruts: Txet, ron AN0 tN coNst6ERATtoN:Or TgE pAYMENT OF THE ltetl ron THE c0NSTRUCTI OF THE IRRIC^TION gYSTEM AND THE RECLAM^TION' CULTIVATION ANO SETTLEMENT'UPON THE LA-NDS HE4EtN DESCRTBED, ANO lN COMPLIANCE WITH THE LAwS OF THE UNlteO Sr'rteS AND OF THS STATE OREGoN RELATtNc To rHE REcLAMATIoN oF 0EsERT LANDs, THE SrATE oF OREGoN ooes Heneav ieMt REEEASE ANO FOREVER QU,TTCLAIM UNTO JOHN T. PARK ALL ITS RICHT' TITLE ANO INTEREST'lN ANO To rHE Fo(LLowtNc oEscRlBED 6laNDs' slruATEo tN DEscHUTEg CouNTYt STATE or 0necoHr T0-$'lr: SourHEAsr QUARTE'R oF THE SoutnEesr QUARTER (se* se3a) ' SeettoN 29, TowttsxlP l5 sourH, RANcE l2 eesr' W'M', coNlAlNlNG 40 AcREs ' . MORE OR LESS. $ue.jeCr, HOwEvER To RtcHTS OF rvAY FOR 0ITCHEST CANALS ANO.SESERVOIR SIrES , FOR. IRRIGATION PURPOSESI CONSTRUCTEO OR WHICH MAY 9€ CO!'gTNUCTEO' BY AU:THORITY oF Tt{E.UNtrED. STATEs oR orHERwtsE' ANo ALso r}tE EAsEMENT oF A RIGHT 0F wAY F0R ALL DlrcH NECESSARY FOR THF PROPER DISTRIBUTION OF WATEF FOR SUCH PURPOSEST WHICH RIGHT9 OF WAY F THE CONSTBUCTION ANO OPEBATION OF MAIN CANALS ANO MAIN LATERALST SHALL BE EQUAL TO THE AC WIOTH OF SUCH CANALS OR LATERALS AT THEIR BASE FROM TOE TO TOE OF THE EMBANKMENT OF THE sAME, TOCeTHER WITH A.sTRlP OF LANO ALONC ONE SIDE OF EACH CANAL OR LATERAL 0R AO\',ACENT TI,tERETO ryOT.TO EXCEEO FIFTY FEET lN WIDTH ALoNG THE MAIN CANALST NOR TO EXCEED THIRTY FEE lNwloTH^LoNGTHEMAI|ILATER^Ls'wHIcHBIcHTsoFwAYAREHEREBYExPREqSLYRESERvED.I To HAVE ANo ro HoLo rHE sAMEr UNTo rHE sAto JoHN T. Penr.Hls HEIRs AND AsslGNa FOREVER. WITNESS THE SE^L ANO SIONATURE OF THE DESERT LENO BOENO AFFIXED THIS 'OTH DAY oF nen r r- , l! lB. I (Desent LAND BoARD. SEAL) . DESERT LAND BOARD' ATTEST:BY JAMES WtrHYcoMsE Gov ER NoR ' Cg I t nuAH REcoRDED.TN SrArE REcoRD pl ClRE.y Acr DEEDs, Boox No' 2' P^eE 4+2 UAL JoHN H. LEwrs STATE ENcl NEER ' SEcRETAiY Exhibit C €u)(.',MP- 7r - t€j DATE&.3-7''T$qfr^^jcE"frs',|;H-rfe1367 l,l.t= :yr'ik.=raiP,ee,.t*; z-.,.LAPARTITIONERkF(_ENGINEER_ sEsaGE DtsPosaL sYsTEHlX sEpTlc TANKE crrv sewenD couuurFv sewgRWATER SOURCEEl weuuD crsreRll-l couuunnv warenAPPNOVALS:2 437 il .ril. Ah+lcv Av? R?lna{l. Oyz.sunveyoR e.e. uorrsr."ri s?1.1*3. J o,zONA-tNEzootr+Jho9n-^cL*XtUXtl.]IF THIS DOCUMENT IS f,ESS*" tili:ilii iti%$iriti"x,:rlrlrlrl'lrlrrlr]rlrlrlrlr,l'r 1,r,'l'rlrt,1rl'1rI JrI lrI lrrIlrr ! lrlrlrlrlrulrr-f!--?<-cs0 08? IrlrIlrrlrlrrti|'illrilrlrirlrlrFEBRUARY 22 I994ltilrlrlIrlr1t16Xz+o-za A.te sDzi-t) lt *et, -J.E"4i)C,?.>Z9TJ5Si]J2EE G. taesfbtd1t\7tIze+tt7 3, .€Le tvlp ?9 159LE6AL DESCRIPTIONTotaI Property: 488 acres, uhich includes: the Ei ofsec.29, T15S, R128. Tax tot ?800.parcel to be partilioned: a 40 acre parcel, desc!ibedas the SE], Sai, Seq. 29, r1SS, R12E5XHoF+,P3ot-^cL*xtUCsd6C2y'THIS DOCI'MENT IS LESSIBLE THAN THIS NOTATION,IS DUE TO tHE QUALITY OFORIGINAL DOCT]MENT.rirlr'lrlrlrrtrlrtrlrl'IrlrJrlrrlli frl rt rlr IFEBRUARY 22 I 994rIlrlriirIrIlIlrrr lr lrrlrIrrlrrrrlrrrtlrr16Xlr ltr l8rrrrlrrrrltrrrJrrrilnrlrrrr 1 2 J 4 5 6 7 8 9 10 11 t2 13 14 15 16 t7 18 19 20 21 22 /.5 24 Exhibit 39 FxhlbitE BEFORE TFIE LAND USE BOARD OF APPEALS OF T}IE STATE OF OREGON LANDWATCH LANE COI.-]NTY, Petitioner, VS. LANE COUNTY, Respondent, and DUANE DOUGHTY and TONYA DOUGHTY' Int ert enor s - Re s Pondent s - LUBA No. 2019-044 FINAL OPINION AND ORDER Appeal from Lane CountY. Sean T. Malone, Eugene, filed the petition for review and argued on behalf of petitioner. Elisabeth Holmes, Eugene, filed the reply brief. No appearance bY Lane CountY' Bill Kloos, Eugene, filed the response brief and argued on behalf of intervenors-respondents. With him on the brief was the Law Office of Bill Kloos, PC. RUDD, Board Member; ZAM{.IDIO, Board chair; RYAN, Board Member, participated in the decision. 25 26 27 28 29 30 31 JL JJ 34 35 36 37 38 REVERSED t0ltsl2019 you are entitled to judicial review of this order. Judicial review is Page 1 Exhibit 39 FxhlbifE I govemed by the provisions of ORS 197.850. Page 2 Exhibit 39 FnhlblfE t 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, j move to intervene on the side of the respondent. No parly opposes the motion, 8 and it is granted. 9 FACTS 10 Intervenors sought county approval of a replacement dwelling on a 10.33- 1l acre property zoned Exclusive Farm Use (E-40) *d designated tax lot 1400 IZ (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 2I comprises tax lot 1400. The land now designated tax 1ot 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 39 Exfi4bifE I 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 areais part of the area of land described in a 1943 deed (the larger property). In 6 the years following lg4'},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 l992,by I a deed conveyance of the area now designated tax lot 1401. The parties disagree, g however, as to the legal significance or import of the 1992 deedconveyance.l l0 Although Lane County land division regulations became applicable to the 11 larger property in l975,the 1992 conveyance did not comply with *re applicable lZ 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 officerthat inthe absence of legal lot creation, the replacement 16 dwelling was improperly approved. Intewenors argued that despite the 1992 ll 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 II. Tract I is designated tax lot 501 and Tract II is designated tax lot 140i. Intervenors' consultant advised the county that tax lot 501 was a separate, existing lot at the time of the 1992 deed. Record 133' Page 4 1 2 J 4 5 6 7 8 9 10 11 t2 13 t4 15 16 t7 18 I9 20 2l 22 23 nxhibit 39 Fnh4bitE On November 7,2018, the hearings officer issued a decision denying petitioner' s appeal, concluding that: "[A n illegal division of a lawfully created parcel does not negate the lawfui status of that parcel but rather voids the development potential, for land use purposes, of the newly created parcel. No new parcel is created because the division is inconsistent with applicable land division law." Record 18. OnNovember 19, 2018, petitioner appealed the hearings officer's decision to the board of commissioners. On November 26,2018, the hearings officer, after reviewing the appeal, affirmed his November 7,201'8 decision. The planning director recommended that the board of commissioners conduct an on the record hearing on the aPpeal. On January 2g,20lg,the board of commissioners reviewed the matter and elected to conduct an on the record hearing on the appeal. On February 26,2019, the board of commissioners heard arguments and reviewed the hearings officer's decision. On March lZ, Z0l9, the board adopted the hearings officer's decision as supplemented and modified by its findings in support of its order' This appeal followed. STANDARD OF REVIEW Our review of the county's interpretation of state law is subject to ORS 197.835(9XaXD) and we will reverse or remand the land use decision if the city improperly construed applicable law. In construing the law, we will consider the text, context and legislative history of the law at issue in order to determine the Page 5 Exhibit 39 &filbifE 1 intent of the enacting legislature . PGE v. Bureau of Labor and Industries,3lT Ot 2 606, 610- 12, 859 P2d 1 143 (1993); State v. Gaines,346 Or 160, 171-172,206 3 P3d 1A42 Q00e). 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- g A parcel is a unit of land created through the partition of land into three or g fewer units of land within a calendat yeat. ORS 92.010(6), (9); ORS 2l'5'010' A 10 lot is a unit of land created through the subdivision of property into four or more 11 units of land within a calendaryear. ORS 92.010(4), (16); ORS 215.010. Because IZ 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, g 2(4XbXA).2 We have previously held that references in ORS chapter 2 Oregon Laws 201,3,chapter 462, seciion 2 was not codified into the Oregon Revised Stut rt"r, 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, 2A24. Or Laws 2013, ch 462, $ 11. Section 2(4XbXA) 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 I 2 J 4 5 6 7 8 9 10 Exhibit 39 Fxfi4bifE 215 to parcels relate to lawfully created parcels. Reeves v. Yamhill County,53 Or LIJBA 4, 17 (2006) ("when the word 'parcef is used in ORS Chapter 2I5, the parcel must be a lawfully created parcel"); Friends of Yamhtll County v. Yamhill County, 229 Or App 188, 792, 2ll P3d 297 (2009) (explaining relationship between parcel as defined in ORS 215.010 and "lawful creation"). We therefore conclude that the parcel on which a proposed replacement dwelling is proposed to be sited must have been lawfully created. ORS 215.010 provides that for purposes of ORS chapter 2I5, a lawfully established parcel has the definition provided in ORS 92.010(3), which provides: "(a) 'Lawfully established unit of land' means: "(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 applicabie 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. "(b) 'Lawfully established unit of land' does not mean a unit of land created solely to establish a separate tax account'" A lawful lot or parcel may therefore be created through the subdivision or partition process, or through a deed or land sales contract describing the area of 11 l2 13 T4 15 16 t7 18 19 20 2I 22 23 Page 7 Exhibit 39 Fxh4bifE 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 1ot 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 g 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 LIIBA 442, aff'd,164 Or App 177,991P2d 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 l6 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 l, Igg3, and the proposed dwelling site was a parcel lg created by the lawful partition after the operative January \, 1993 date, the 20 application for a nonfarm dwelling was properly denied. We affirmed the Zl 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 39 Fnh4bifE 1 Here, in lggz,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 92.011 provides that "[a] lot or parcei lawfully created shall 5 remain a discrete lot or parcel, unless the lot or parcel lines are vacated or the lot G or parcel is fuither divided, as provide dby la,v." (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 g that tax lot 1400, standing alone, is an unlawfully created parcel and a 10 replacement dwelling may not be authorized on tax lot 1400. I 1 Our recent decision in Landwatch Lane County v. Lane County, - O. t2 LUBA _ (LUBA No 20t8-077,Feb 6, 2019), aff'd,297 Ot App 582, 442P3d 13 245, rev den, _Or (2019) (Kasle) is consistent with this result.In Kasle, 14 we reviewed a decision approving a forest template dwelling pursuant to ORS 15 215.750(IXa). 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 17 determining whether there are at least three other lots or parcels "that existed on 18 January l, Igg3" within the template area. (Emphasis added.) In Kasle, one of lg the areas of land counted as a parcel within the template areawas created in 1984. 20 In 1992, part of the area of land legally created in 1984 was conveyed without Zl 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 39 Fxh4bifE I discrete lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel Z 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 properly and not the unlawful configuration resulting from 5 the 1994 conveyance. We agreed. 6 Intervenors argue that Kasle 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 Kasle is legally g distinguishable. In Kasle, the legal issue was whether a parcel "existed on l0 January 1, Igg3' for purposes of the template test. We concluded that an 1 1 underlying parcel that had been unlawfully divided "existed on January I,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 "remaindet" 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. lg The Supreme Court has held that an unauthorized division of land does not 2A create legal lots of record and that a land unit resulting from an unlawful division Zl 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 39 Fxh4bifE 1 legal lot of record. Yamhitl County v. 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(1Xc); ORS rs7.83s(9Xa)@). ORS 21s.213(1xq) requires that the g 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 amatter of law. Accordingly, the appropriate disposition is reversal- 12 The county's decision is reversed' 3 See n2. Page 11 Page I of I 106 THE UNITED STATES OF AMERICA THE DALLEs Ott80 To ALL To 'dHoM THEsE PREgENTs sHALL coue--0ne:ttttG: WHEREAS, Tnene H^9 SEEN OEPOAITEa lN THE GENER^L L^Ng oFFlcE oF THE UNITEO STrreS, A CERTtFtcATE oF THE RECISTER oF THe LiNO 0rrtCe rr Tsg DrLueO, 0Re6Oil WHERESI It AppEARS THAT, puRguANT ro THE ACr or CorcnESS APFRoVED 20rx Mrv, 1862, uTO SECuRE HOME- STEAos To AcTuAL SETTLERS oN TH6 puaTIc OOMTIilrtr ANO THE ACTE SUPPLEMENTAL THEfiETO, THE cLAIM OF LORSNZ0 li. Tgours HAs sEEN EOTAALTSHED AN9 OULY CONSUMTATSOT lN CONFORMITY TO LAW' FOR THE EAST HALF OF THE NORTHUEST QUARTSR AND THE UEST HALF OT THE f{ORTHEAST QUARTER OF sEcrteN tHtRTy rN ToxttsHtP TtFTEEN gouTH oF. RIHcE rvr€lve EAsr oF rHs WlLt''\vsrte Menlotrlr' 0REcoN, coNTAtrtNc oNE HuNgREo stxry AcnEs AccoRDtNG To rHE 0rrtctrl PLAT oF THE SURVEY oF THE SAtt LANO, RETURNEO TO tHE Ggr.lgneL LANO oFFtcE SV rHe sUnvEvot GENearL. No$l KNo\v YE, TH^T THERE ls' lHER€FoRE' cR^NTEo BY TH€ UNITEo S?ATE3 uNTo IHE 9^|o LeRENzo $. Txoueg rHE TRAcr 0F LANI ABovE oEgcRlsE!; T0 HAVE AND TO H0L0 TH€ sAtO TR^ST OF !^NO, WrTH rH€ ^PPURTSN^NCE9 THE'.EoF' UNro THE aAt' L0RENZo s. TH0MAS ^Na TO HtS HETRS ANO ASAICNS FOREVER' SUB'JEcT ro ^nt uesreo r*o ^ccRuEowATERRlGHTsFoRMlNlNG,AGRlcuLtUR^L'MANUF^cTURINGoFoTHERPURPoS€S^NoRlGHTs TO DIICHES ^NO R€SERVOIRS USEI IN EONNECTION WITH SUCH IYATER RIGHTS ^S M^Y BE R€COGNIZEO ^NO ACKNOgLEOCSD BY THE LOCAL Cu9TOMS' LAsg ^ND OECISIONS Of COuRtS ANO AlSO 3U69ECT T0 tHE RICHT OF THE PROPRI6TOn OF A VEIN OR LoDE TO EXTRAOT ^NO REMOyE HIS ORE THEREFi0M' SHOULI THe sAME BE FouNo To p€N6TRATE oR tNTERsEcT THE PREutsEg HEREBY cRAilrEo, ^s ?RovlDED gY LAw, ^No THERE ls RE$ERVED FR0M TBE L^Nos HE,.E8Y cR^NTEo' ^ RIcHT oF w^Y 'HEREoN FoR DITLHES oR gANALs goNsrRucrEo BY Tt{e AurHoRlaY 0F THE UNITED STATES' lN TESIIM0Ny WHEREOF l, t!lLLtAM H. T^FTr PR€grDENT OF THE uNlrEo STATES 0r AMEBI- CA, HAVE CAUSED THE9E LETTERS TO BE M^OE Prrerl, ANO THE EEAL oF rng GeHenr't LANO oFFICS Tl EE HSREUNTO AFF I XEO. GIvENUtrDgRMYH^ND,ATTH,EcITyoF$,^aHtNGToN,THEslcl.lTEENrHo^YoFAPRIL'lN Tt{E yEAR OF OUR LORI, aNE THOUSAII' NtNE HUNDREO ANI TENr At'lD OF THE lHlePeHOeNCe Or TXE UiltrEl $rrtgs tle 0NE Ht NEREo ^ND THIRTY-FouRTHr BY THE PR€SIDENT: WM. H. T^Fr (Orrtcteu $erL) BY M' P' Le Rov SEcRET^nY ,.toxn 0bonr'relL Acr I Nc RccoRBER aF GEN- eairu Lrrrt 0rr tce. REcoRDEI PrreNT NuusE* 125545 FrLEI FoR REcoRo AT l0 orcl.ocK A. M.' MARcH l5 A' 0' 1.912, ^No REc0RoEg AT THE REQussr oF L. S. TxoMrs \llrangt Enowx CouHtv Cunx vor. 2 oF PATENTS eete 5Jl REcoRgs oF CR00K CouNrY I I I I a a Exhibit 41 Page 1 of3 OREGON RULES OF APPELLATB PROCEDURE SUPREME COURT and COURT OF APPEALS Permanent Amendments Effective January 1,2021 Also includes: r CJO 20-055 / CJO 20-06, Order Adopting Temporary Amendments effective January 1,2021, through December 31,2022 CJO 2l -026 ICJO 2l-05, Order Adopting Temporary Amendments effective August l. 2021, through December 31, 2022 CJO 2l-027, Order Adopting Temporary Amendments effective August 1.2021 through December 31,2022 Editorial corrections to ORAP 2.05 nn 5.7, and 8 and ORAP 4.20(lXa) (July 14,2021) OJD Publications Section I I 63 State Street Salem, Oregon 97301 -2563 ORAP.conr m ittee@oj d.state.or. us https://www.courts.oregon.qov/courtslappellate/rules/Paees/orap.aspx Version date: August I l, 2021 This document has no copyright and may be reproduced a Exhibit 41 Page 2 of 3 Rule 9.07 CRITERIA FOR GRANTING DISCRETIONARY REVIEW The Supreme Court considers the itenrs 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 tfue public. They are neither exclusive nor binding. The court retains the inherent authority to allow or deny any petition for review. A petition fbr review may refer to those items that are relevant to the case and need not address each listed item.r ( l) 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, (0 The jurisdiction of the Court of Appeals or the trial cout't. 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 af-fected 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) Whetherthe 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. (1) Whether the legal issue is properly presewed" and whether the case is free from factual disputes or procedural obstacles that might prevent tlre 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 (arnong Court of Appeals cases, between 125 Chapter 9 Exhibit 41 Page 3 of3 Court of Appeals cases and Suprenre Court cases, or among Supreme Court cases). (10) Whether it appears that trial coufts or administrative agencies are inconsistent or confused in ruling on the issue that the case presents. (l l) Whether the Courl of Appeals published a written opinion' (12) Whether the Court of Appeals was divided on the case. (13) Whether the Couff of Appeals decided the case en banc. (14) Whether the Court of Appeals decision appears to be wrong. If the decision appears to be wrong: (a) Whether the error results in a serious or irreversible injustice or in a distortion or misapplication of a legal principle. (b) Whether the error can be corrected by another branch of government, such as by legislation or rulemaking' (15) Whether the issues are well presented in the briefs' ( l6) Whether an amicus curiae has appeared, or is available to advise the coutl. I A party rnay include in an appendix to a petition for revi urrder this rule that are not othelwise part of the record on ew materials in support of criteria appeal, such as materials demonstrating how the case may affect persons other than the parties to the immediate case or how the case is impoftant to the public' Rule 9.10 RBSPONSE TO PETITION FOR REVIEW (l) 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 pafty'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 Coutt of Appeals will be considered as the response. (2) A response to a petition for review is due within l4 days after the petition for review is filed. (3) A response shall be in the form of a brief prepared in conformity with ORAP 5'05 and ORAp 5.:5. 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) l5 pages. Any party filing a response shall 126 Chapter 9 THORNBURGH November 19,2021 Hearing Officer Gregory Frank c/o Senior Planner Angie Brewer Deschutes Counfy Community Developrnent Dear Hearing Officer Frank, During the public hearing numerous parlies provided verbal testitnony 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 l0 acre MUA-10 zoned properfy has been reduced as it has for Mrs. Strauss who has been farrrring a part of her 4.5 acre properfy in the area for some years. One message being voiced is that farming is good r,vhile development of a resort communiry 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 plotecting the t-ish in Whychus Creekr. While none of this has anything whatsoever to do rvith 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 193 I . My great grandfather, then my grandparents had 300+ acres they irrigated with Central Oregon Irrigation District (COfD) irrigation water. In 1953 they bought tlie 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 falm the land, nJr are any wildlife mitigation needed. We could relnove 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 wildlifi habitat or the wildlife itself nor any responsibility to rnitigate for any impact to wildlife. For irrigation we would use our permit for 2,129 af of water rights or other pennits we own or control proiiding another 1,250+l- acre feet of water2. SeeExhibit24. Similarly, using our water for farming iequires no fish or wildlife mitigation, nor would there be any obligation to account for impacts to ,piingr, or seeps. ODFW would have no say whatsoever and we would have no responsibility to mitig"ate for any therrnal 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 sanle water to iirigate 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. T)( ) llox I59-. ltctlrnorrrl, ( )ll 9:ri(r .'{ horttl>tLfgirl{us()l:l c()ll l be No Net Loss from any farming actions. all of which are permitted outright. There would be no "del icate balance" required. The ironic thing is that using our land and rvater 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 rvater 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 plovide 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 ando/o 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%o less during the critical summer period as compared to the ag use as noted above. By that standard alone the resort create s 25%o less impact at the critical summeftime 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 pennit, G-l7036limits the volume of waterwecanuseonirrigationto3.0acrefeetperacreofirrigatedland3. Itfuftherrestrictstheamountof 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: Central Oregon Irrigation District Swalley Irrigation District: Arnold Irrigation District: 6.05 aflacre 4.57 aflacre 4.43 aflacre 4.38 aflacre For perspective custonters of Tumalo Irrigation District, (which includes Gould, Arnold and Strauss) can use 6.05 aflacre of water on their land versus the 2.24 aflac Thornburgh can use on its golf course. That is 270o/omore. 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 rvater 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 acrea which is still I .8 times what lve are allocated for golf - meaning water we would otherwise be allowed to use is saved because we cannot use it. Numerons parties complained they didn't get their full water allocation, including Mr. Arnold and Mrs. Strauss. As noted above both are on Tumalo lrrigation, which according to the district this summer limitedwaterto 70%oof theallocation, or4.23aflacre. Thatisstill l.9timesThornburghsgolf course allocation of 2.24 aflacre. 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 coutse 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. a The Tumalo duty rate is over 50% more than Thornburgh's other rights' '... they really seenred like they lvere very aware of lvater even back r,vhen they were planning it and with the concept that they lveren't planning on like a green soaked course. Tltat isn't what I was reading in all the docurnents. 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'ivater shortages. The NOAA materials we submitted show precipitation levels to be relatively stable for Deschutes Counfy since I 895 (125 years). See: Exhibit 30 NOAA Precipitation Data. The driest year was I949 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 al2l.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 l0 years than the previous 10, the period when Thornburgh received CMP apploval. 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 tl-re 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 r,vas not the case farmers in Madras, that are a part of the North Unit Irrigation District would have received 80o% rnore 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 ofeven goes back to that concept ofa drought. We declared a drought because Wickiup was not full to serve Madras farmers at Norlh Unit (North unit Irrigation District-NUID). ft wasn't because we had a water shoftage right here right now, it was up in the valley, it was a surface water shorlage, not a groundwater [shortage]. So this [resort water] is a groundwater source I think is a big parl of this so, it's different'. See.' Exhibit 26. The issue with North Unit irrigation water is the issue discussed in the afticle we have submitted. The irony is that the farmers in NUID are the most efficient. As noted inthe 12117 OPB afticle, "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 arlicle 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 ineffici ent." 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" rvho don't know how to conselve water yet use their farrning 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 lesult 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, r,vhile supel efficient systems like Thornburgh rvill employ allow us to get by with a fraction of the water. In many cases, the people r,vho complain about an issue are the vety 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, betlveen 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. Thornbulgh has provided i00 af of water that we have left in the river, allthe 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 350 Letter from OWRD re: LeBeau Instream Lease, One other contment 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 constrllction drawings. The new drawings were provided to BLM in accordance with our agreement with the BLM, who approved them. The approved dlawings (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 ttsed 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. ihe 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 nly intent to provide you some factual context in light of the overr,vhelming emotional testimony, shy on facts that you have received. I appreciate you taking the time to read and review this material. Sincerely, Kameron Delas Thornburgh Resorl