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2023-42-Minutes for Meeting January 11,2023 Recorded 2/7/2023
Recorded in Deschutes County CJ2023-42 Steve Dennison, County Clerk Commissioners' Journal 02/07/2023 1:53:44 PM ES r BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 IIIIIIIIIIIlIIIIIII IIII FOR RECORDING STAMP ONLY BOCC MEETING MINUTES 9:00 AM WEDNESDAY January 11, 2023 Barnes Sawyer Rooms Live Streamed Video Present were Commissioners Anthony DeBone, Patti Adair, and Phil Chang. Also present were Nick Lelack, County Administrator; Kim Riley, Assistant County Counsel; and Brenda Fritsvold, BOCC Executive Assistant. This meeting was audio and video recorded and can be accessed at the Deschutes County Meeting Portal website www.deschutes.org/meetings. CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: Chair DeBone acknowledged the receipt of emails from: • Carolyn A. Carry, asking that ODOT's request for a noise variance to allow nighttime construction on the Tumalo-Cooley Road project be denied; and • Tom Beach, Operations Frontline Manager of the FAA's Portland office, responding to complaints of low -flying aircraft in the vicinity of the Bend airport. CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda. CHANG: Move Board approval of Consent Agenda ADAIR : Second BOCC MEETING JANUARY 11, 2023 PAGE 1 OF 14 VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 1. Consideration of Document No. 2022-946, an amendment to the contract with Youth Villages for crisis and transition services 2. Adoption of Board Order No. 2023-006 directing the La Pine Rural Fire Protection District to comply with the Deschutes County Ambulance Service Plan and Chapter 8.30 of the Deschutes County Code 3. Approval of the BOCC meeting minutes of December 21, 2022 ACTION ITEMS: 4. Consideration of approval to purchase two 2024 International Truck Tractors Randy McCulley, Fleet & Equipment Manager, explained that the 2024 truck tractors will replace current 2006 tractors, which in turn will be converted to snow plow/sanders for seasonal use. ADAIR: Move Board approval of Document No. 2023-084, authorizing the purchase of two 2024 International HX620 truck tractors from Peterson International in the amount of $313,741.30 CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 5. Sisters Area Chamber of Commerce Presentation Judy Trego and Turi Shergold from the Sisters Area Chamber of Commerce (SACC) thanked the County for its continued support of small businesses and economic development. Trego described the SACC's activities, events and marketing efforts, and reiterated SACC's request for $125,000 in video lottery funds to support its operations and programs. Commissioner Adair expressed appreciation for the extensive reach of SACC's leadership, advocacy and services, and said it helps to keep the community vibrant. BOCC MEETING JANUARY 11, 2023 PAGE 2 OF 14 Responding to Commissioner Chang , Trego explained that the Chambers of Sisters and Sunriver are much smaller than others and do not have access to Transient Room Tax (TRT) funds as do the Chambers of La Pine, Redmond and Bend. Stephanie Robinson, Administrative Analyst, said the Board can decide to approve the SACC's request at this time, bring this matter back at a future meeting, or roll this request into the FY 2024 video lottery grants process. ADAIR: Move Board approval of granting the Sisters Area Chamber of Commerce $75,000 now in video lottery funds and considering the remaining $50,000 requested amount during the FY 2024 budget cycle CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried 6. City of Sisters ARPA Reserve Allocation Request Scott Woodford, Community Development Director of the City of Sisters and Sisters Mayor Michael Preedin explained the request that the County disburse $500,000 in ARPA funds to the City for a 40-unit affordable housing project targeted at persons making between 60-65% of Area Median Income (AMI). Woodford said a site has been identified and NW Housing Alternatives (NHA), an experienced developer of affordable housing, will build and manage the project. Mayor Preedin expressed appreciation for the partnership with the County on this initiative and said some of the units will be used for transitional housing while others will be workforce housing. Clayton Crowhurst from NHA said the project will be three stories; the goal is to maximize the number of units provided. Commissioner Chang inquired about the project's total cost as well as other funding sources and amounts. Noting that the ARPA funds must be expended by December of 2026, he wanted assurance that the project will proceed before committing the $500,000. Crowhust responded that the total cost is estimated to be between $14 and $20 million. He shared possible funding sources, including a variety of grants that will be applied for. He emphasized that NHA is well -established, has been in BOCC MEETING JANUARY 11, 2023 PAGE 3 OF 14 operation for 40 years, and does not flip or sell projects but rather continues to manage them after they are built. CHANG: Move Board approval of a formal allocation to the City of Sisters of $500,000 in ARPA funding for an affordable housing project ADAIR: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Commissioner DeBone requested that the City of Sisters provide an update on this project in one year. 7. Public Hearing: Oregon Department of Transportation Noise Variance Rachel Vickers, Associate Planner, explained the request from the Oregon Department of Transportation (ODOT) for a noise variance to allow nighttime work on the Tumalo—Cooley Road project. The public hearing was opened at 10:12 am. • Jordan Marks, representing the contractor, explained that the noise variance is needed because lane closures will only be allowed between 8 pm and 7 am. • Dale Pere said his property is directly adjacent to the project. He expressed his support for the lane closures and nighttime work. • Jane Warner said the current work is already disruptive during the day. She opposed the nighttime work as it will disrupt sleep. • Wendy Finnan said there is good reason for laws against nighttime noise, primarily the negative mental health effects of not getting enough restorative sleep. The public hearing was closed at 10:27 am. Responding to Commissioner Chang, Vickers said notice was provided in excess of what State law requires. A mailing was sent to all properties that will potentially be affected and the same notice was also published in the Bulletin. Commissioner Adair noted that the Board received ten emails opposing this request. BOCC MEETING JANUARY 11, 2023 PAGE 4 OF 14 Commissioner DeBone said the nighttime work will not happen over the entire course of the project. Commissioner Chang said this roundabout is needed to save lives and prevent terrible accidents, and some nighttime work will be necessary. CHANG: Move Board approval of Document No. 2023-018, granting ODOT a noise variance to allow nighttime construction on the Tumalo—Cooley Road project ADAIR: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion Carried Commissioner Adair said it will be important that ODOT notify the neighbors in advance of the nighttime work so they are aware. 8. Planning Commission Representation / Geographic Areas Peter Gutowsky, Community Development Director, sought direction from the Board on the preferred number of appointed Planning Commissioners and their respective geographic areas of representation. He presented three options for the Board's consideration, the first of which is supported by staff —this option would retain the current Planning Commission makeup of seven members and replace one At -Large position with a position representing the Tumalo area. Commissioner Chang favored having more information and analysis before making a decision. He referred to the proposal to have a seat designated to represent Terrebonne and said that the area shown as representing Tumalo should be larger in fairness to the rest of the County. Commissioner Adair suggested that the Eagle Crest area could be included in Tumalo. She said many in Tumalo feel disenfranchised and Terrebonne is also experiencing many large changes as well. Commissioner DeBone was comfortable with keeping the Commission at seven members, committing that Tumalo will have a seat without changing Code, and starting recruitment this month. He respected the input and engagement on this subject. Chair DeBone noted consensus of the Board to proceed with the first option for the current recruitment and address the specific distribution of the geographic areas at a later time. BOCC MEETING JANUARY 11, 2023 PAGE 5 OF 14 Gutowsky noted the recruitment will begin on February 1'. Commissioner Chang asked that as this proceeds, staff be clear about what the Planning Commission does and does not do. 9. Public Hearing: Planning Division Long Range Work Plan for FY 2022-2023 Will Groves, Planning Manager, sought direction from the Board on prioritizing long- range planning projects as staff capacity allows. Possible projects to move forward include the Wildlife Inventory Update, which had been paused to address psilocybin regulations, as well as a number of other items characterized as minor, moderate or significant according to their expected use of staff resources. Commissioner Chang referred to substantial public controversy on the wildlife inventory maps and overlay, as an update may limit development opportunities. Groves said while updated regulations may preclude some uses, it may also be the case that certain benefits of new development could outweigh some wildlife protections. He said if directed by the Board to proceed with updating the wildlife inventory maps, staff would: schedule open public houses and a hearing, establish an interactive webpage to provide information and receive comments, and draft findings and parcel -specific maps showing properties that would be affected by a new mule deer winter range. He estimated this work would take six months. Commissioner DeBone said everyone desires to see a healthy mule deer population in the county. Commissioner Adair noted the number of deer lost every year to collisions with vehicles and questioned how many are lost to cougar predation. The public hearing was opened at 11:18 am. Chair DeBone acknowledged the receipt of 91 emails on this subject. • Mary Jo Hedrick, representing Oregon Hunters Association, acknowledged the complexity of this matter and said OHA wants to be involved and participate as needed to assist throughout the inventory update effort. • Ian Isaacson stated his pride in providing wild -range venison for his family and spoke to the decline in wildlife populations due to human intrusion. He encouraged valuing open space and asked that the Board prioritize updates to the Goal 5 wildlife inventory plan. • Ed Putnam said he personally has observed the population decline and redistribution of mule deer in and around central Oregon over twenty years, along with a dramatic increase in human population and use of recreational BOCC MEETING JANUARY 11, 2023 PAGE 6 OF 14 land. He noted impacts of hiking, dog walking and motorized vehicles and urged changes to allow the mule deer population to rebound. • Suzanne Linford encouraged the Board to prioritize the update of the wildlife inventory maps and further encouraged including all interested parties in this effort. • Michael O'Casey appreciated that Ms. Linford reached out to the Tumalo Irrigation District to hear their concerns and establish points of agreement on this issue. He said more mule deer are killed by vehicle collisions and poaching than by legal hunting. • Emily Weidner shared that both bald eagles and golden eagles are protected species. Saying that US Fish and Wildlife seeks to assist informed development, she added that conservation and development are not mutually exclusive and expressed her support for improved decision -making. • Jamie Bowles, Oregon DFW, shared graphs showing the decline in the mule deer population over time as their habitat has been compressed and degraded. Saying it is possible to address habitat loss and fragmentation, she described key conservation issues. • Karl Findling said action must be taken now to prevent further loss of mule deer and the potential listing of the species on the ESA. He noted the effects of development sprawl and industrialization and supported providing formal, designated corridors to protect the future of wildlife for all generations. • Benjamin Rubin said it was important that wildlife be prioritized and asked that the Board direct an updating of the inventory. • Steve Hagen, representing the Oregon Hunters Association, thanked the Board for allowing public comment on this matter. He referenced several factors impacting the population of mule deer, including poaching and predation, and encouraged the update of the inventory maps. • Mark Labhart urged the Board to direct an update of the wildlife inventory as it is important to have good information. • Kris Sabo said that Deschutes County's fast growth is impacting wildlife and encouraged adding the wildlife inventory update to the long range work plan. • Steve Shropshire, representing the Deschutes Basin Board of Control, supported work on Code revisions to differentiate hydroelectric riverine facilities from conduit facilities. He said these revisions would facilitate green energy and irrigation needs. • Mark Stockamp supported continuing to pause the update of the wildlife inventory maps or removing it from the work plan entirely. He said OFW is proposing overreaching restrictions on development that would worsen the housing crisis and said many factors impact the mule deer population, including cougars and permitted hunting. • Douglas Stout said housing developments are by far the largest threat to the loss of wildlife habitat. The public hearing was closed at 12:15 pm. BOCC MEETING JANUARY 11, 2023 PAGE 7 OF 14 The Board discussed directing staff to proceed with an update of the wildlife inventory as well as amendments to the Code regarding conduit hydroelectric facilities. Chair DeBone noted the consensus of the Board to have staff return in two weeks for further direction on the remaining potential work plan items. 10. Board Order 2023-004—Decision whether to hear two appeals of a Hearings Officer's decision for a Thornburgh Resort modification request Caroline House, Senior Planner, said two appeals have been filed requesting the Board hear the appeals of a Hearings Officer's decision which denied the Thornburgh Destination Resort's modification request to its Fish and Wildlife Mitigation Plan. The applicant had proposed to conserve water by reducing some water intensive amenities, and also by reducing irrigated landscaping for resort facilities and individual homes. The Hearings Officer denied the Resort's modification request based on the lack of sufficient time for the Oregon Department of Fish & Wildlife to review the modifications and submit a meaningful response, and additionally due to a failure to propose clear, objective and enforceable compliance language. House concluded that staff recommends the Board agree to hear the appeals with a de novo review. Commissioner Chang commented this matter involves complex issues with technical factors. He did not believe the Board had the expertise to conduct a satisfactory evaluation and make a determination. Stephanie Marshall, Assistant Legal Counsel, said the Board could select which matters it wants to address. ADAIR: Move approval of Order No. 2023-004, accepting review de novo of the Hearings Officer's decision in File No. 247-22-000678-MC (Thornburgh) DEBONE: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion carried House said a work session will be scheduled prior to the public hearing, which will happen on February 1st. The Board determined time limits as follows: 30 minutes for the applicant; 20 minutes for the appellant; 20 minutes for agencies; and three minutes for other testimony. Chair DeBone announced a break at 12:53 pm. BOCC MEETING JANUARY 11, 2023 PAGE 8 OF 14 The meeting reconvened at 1:18 pm. 11. Authorization to apply for a grant in the amount of $3.25 million from FEMA's Building Resiliency in Communities program and also for a $500,000 grant from the Oregon State Fire Marshall Due to the temporary non -availability of presenting staff, this item was deferred until 3:00 pm (see page 13). 12. Consideration of Administrative Policy GA-23, Removal of Unsafe Encampments Located on County -owned Property Kristie Bollinger, Property Manager, reported that following numerous fires last summer on County -owned property originating from encampments, staff convened a work group to draft a responsive policy in accordance with State law. Bollinger emphasized the intent is to address criminal activity, fire risk and other unsafe behavior. Commissioner Chang appreciated that the limited scope of the policy does not authorize a wholesale clearing of camps from County -owned property. He requested a comparison with Bend's recently adopted regulations on encampments. Commissioner Adair spoke to the need to be mindful that over 200,000 people live in Deschutes County, and fires pose an extreme risk. She appreciated taking action to prevent potentially tragic situations. Cheyenne Purrington, Director of the Coordinated Houseless Response Office, said these type of policies are often not applied broadly but rather serve as one tool in a range of programmatic and other resources. Noting that larger, more dense encampments tend to generate certain hazards, she said although the proposed policy would allow the County to balance competing interests, it won't always be the appropriate tool for each situation. Commissioner Chang asked if this policy will be used to move people from the County -owned property in Redmond. Kim Riley, Assistant Legal Counsel, reiterated that the policy is meant to address unsafe encampments. It has not yet been determined if it will be used for any specific camp. ADAIR: Move to authorize County Administrator signature of Administrative Policy GA-23, Removal of Unsafe Encampments Located on County -owned Property CHANG: Second VOTE: ADAIR: Yes BOCC MEETING JANUARY 11, 2023 PAGE 9 OF 14 CHANG: Yes DEBONE: Chair votes yes. Motion carried 13. Courthouse Expansion Scope of Work Whitney Hale, Deputy County Administrator, reviewed the Board's action in December to proceed with designing the expansion of the courthouse according to Option No. 2, which would include both 3rd and 4' floor shell spaces. Subsequent to that decision, Commissioners Adair and DeBone indicated their desire to revisit the scope of the project. Commissioner DeBone summarized that adding a 4' floor shell space would cost $4.5 million, but this area may not be used for 20 years. He preferred to be more constrained at this time. Commissioner Adair agreed and added she wishes to see the cost of the third floor shell space reduced from $1,000 per square foot. Commissioner Chang said building the 4" floor now at a relatively modest cost would create capacity that will be needed in the future and that could be used for partner activities in the near term. Lee Randall, Facilities Director, said it was important to decide this question now and give clear direction so the design work can begin. He expected to bring a new cost estimate to the Board in the spring along with the schematic design. ADAIR: Move to rescind the Board's prior action to approve programming option #2 for the courthouse expansion project design DEBONE: Second VOTE: ADAIR: Yes CHANG: No DEBONE: Chair votes yes. Motion carried 2 - 1 ADAIR: Move approval of programming option #1 for the courthouse expansion project design DEBONE: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion carried 14. Oregon Department of Energy Community Renewable Energy Grant Program BOCC MEETING JANUARY 11, 2023 PAGE 10 OF 14 Jen Patterson, Strategic Initiatives Manager, explained staff's proposal to apply for a Community Renewable Energy Grant from the State. Lee Randall, Facilities Director, elaborated that any monies awarded would be used to install a new well at the Fair & Expo Center, which would supply 500,000 additional gallons per minute to the property. The project would also include the installation of a new submersible pump, a water filtration system to convert to potable water, and a potable water storage facility. The grant would also result in power for Emergency Operations staging and EV charging stations. Commissioner Chang commented that a previous grant application submitted by the County for this program would have scored higher had it demonstrated service to underserved and vulnerable populations, since one goal of this program is to increase resiliency of communities. ADAIR: CHANG: VOTE: Move to authorize staff to apply for a $1,000,000 grant through the Community Renewable Energy program for a community energy resilience project at the Fair & Expo Center Second ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion carried 15. Request and Discussion of Worrell Wayside Park Application for a City of Bend Upland Area of Special Interest Designation Nick Lelack, County Administrator, described a citizen -initiated proposal that the County consider submitting an application to the City of Bend to designate Worrell Wayside Park as a New Upland Area of Special Interest (ASI) per City of Bend Code 2.7.700. Facilities Director Lee Randall noted that this code is expansive and addresses pathways, tree trimming, and other activities. Commissioner Adair noted the presence of a serious, committed group of people who are willing to work on this. She asked to know what would be required to rescind this designation if it was pursued and approved. The Commission chose not to authorize a citizen to submit an application on the County's behalf for an ASI designation for Worrell Wayside Park. 16. Document No. 2022-939, amending the agreement with PacificSource for healthcare coordination services BOCC MEETING JANUARY 11, 2023 PAGE 11 OF 14 Kara Cronin, Behavioral Health Program Manager, explained staff is seeking the Board's approval to extend this contract with PacificSource for six months. CHANG: ADAIR: VOTE: Move approval of Chair signature of Document No. 2022-939, amending the agreement with PacificSource for coordination of care for adults with mental illness Second ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion carried 17. Request to repurpose an existing mediation full-time position to support the School -Based Health Center Erik Kropp, Deputy County Administrator, introduced the proposal to repurpose an existing mediation full-time positon to support the School -Based Health Center programming at Redmond High School and Sisters High School, making each SBHC position at these locations a 1.0 FTE starting February 1st. This change would help facilitate access of youth and young adults to crucial mental health care. ADAIR: Move approval of repurposing position #1737 for assignment to the School -Based Health Center program CHANG: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion carried 11. Authorization to apply for a grant in the amount of $3.25 million from FEMA's Building Resiliency in Communities program and also for a $500,000 grant from the Oregon State Fire Marshall This item had been deferred from earlier in the meeting (see page 9). Kevin Moriarty, County Forester, and Joe Stutter, Senior Advisor and Contact Administrator, Oregon Living With Fire, explained the grant proposals. If awarded, the $3.25 million grant from FEMA's BRIC program would be used for a water storage and heat -activated sprinkler system on the High Desert Museum campus to protect irreplaceable museum articles and over 150 animals, some of which are threatened/ endangered, from wildland fire. BOCC MEETING JANUARY 11, 2023 PAGE 12 OF 14 The $500,000 maximum -amount grant from the State's Fire Marshall Office (OFSM) would be awarded through the Community Wildfire Risk Reduction program for defensible space efforts, community common area projects, educational projects and other specified allowed uses to achieve greater wildfire preparedness and increase community resiliency to wildfire. CHANG: Move to authorize staff to apply for a grant in the amount of $3.25 million from FEMA's Building Resiliency in Communities program and to also apply for a grant in the amount of $500,000 from the Oregon State Fire Marshall ADAIR: Second VOTE: ADAIR: Yes CHANG: Yes DEBONE: Chair votes yes. Motion carried OTHER ITEMS: • County Administrator Nick Lelack shared information on the Federal advisory committee pertaining to national forests within the Northwest Forest Plan Area of California, Oregon and Washington. • Lelack reported that interviews for the Fair & Expo's Board of Directors have concluded; the recommended re -appointment and appointment will come before the Board next week on its consent agenda for approval. • Lelack said the Board has been invited to speak at the upcoming La Pine— Sunriver Chamber Breakfast on February 16th regarding the ways in which Deschutes County supports local businesses. • Lelack presented draft input to submit to the Bend City Council in response to its request for comment on its major goals. The Board suggested various changes, including discussion of an urban area reserve to address development applications within the Urban Growth Boundary on lands zoned Rural Residential. • Commissioners provided feedback and suggestions on the draft presentation for the Board to deliver at next week's Leadership Bend meeting; • With respect to the 2023 Legislative Session updates, the Board concurred to have the next one on Wednesday, 1/18 during its regular meeting and thereafter schedule the updates as standalone Friday morning meetings. • Lelack reported an inquiry from the City of Bend regarding coordinating, along with the COIC, to pursue a portion of the $40 million to be made available by the State to address homelessness. The Board was in consensus to allocate staff resources to these cooperative efforts. • Commissioner Chang reported that the AOC Legislative Committee sent three items back to their respective steering committees. BOCC MEETING JANUARY 11, 2023 PAGE 13 OF 14 EXECUTIVE SESSION: None ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 3:41 p.m. DATED this ATTEST: Day of RECORDING SECRETARY 2023 for the Deschutes County Board of Commissioners. CA/1,1 „9" ANTHONY DEBONE, CHAIR PATTI ADAIR, VICE CHAIR PHIL CHANG, COMMISSIONER BOCC MEETING JANUARY 11, 2023 PAGE 14 OF 14 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: 10 i ,�C. 01K—, � " `-`--t„,\Q, Name to Address 4 4 7 / Date: Phone #s -1 `y \ E-mail address In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS Angie Powers From: Carolyn Carry <redtruckranch@gmail.com> Sent: Saturday, January 7, 2023 10:49 AM To: Rachel Vickers; citizeninput Subject: File#: 247-22-000903-V - ODOT's nighttime noise variance request Some people who received this message don't often get email from redtruckranch@gmail.com. Learn why this is important [EXTERNAL EMAIL] To: Members of the Deschutes County Board of County Commissioners From: Carolyn A. Carry Dear Commissioners; Please deny ODOT's request for a noise variance to allow nighttime construction for the `Tumalo-Cooley Project'. The inconveniences for residents and neighbors has been ample: To deprive residents of sleep, and quiet enjoyment is an interference of general property law covenants and is likely indefensible. It may constitute harassment. I encourage you to defend the county citizens rights to `quiet enjoyment' during the hours largely recognized as quiet hours. I thank you for your time and consideration.. Carolyn A. Carry i From: Sent: To: Cc: Subject: Good morning Mr. Beach, Angie Powers Friday, January 6, 2023 8:21 AM Beach, Tom (FAA) Lawver, Jason (FAA); citizeninput RE: Tye complaint Your email has been forwarded to: Citizenlnput@deschutes.org and to Board@deschutes.org. Thank you for your input. As your email was submitted through the Citizen Input email address, it is not only shared with the Deschutes County Board of Commissioners but is also included in the meeting record of the next scheduled Board of Commissioners meeting where Citizen Input is a portion of the agenda. Angie Powers J Administrative Assistant DESCHUTES COUNTY BOARD OF COMMISSIONERS 1300 NW Wall St 1 Bend, Oregon 97703 Tel: (541) 388-6571 Enhancing the lives of citizens by delivering quality services in a cost-effective manner. From: Beach, Tom (FAA) <Tom.Beach@faa.gov> Sent: Friday, January 6, 2023 8:03 AM To: Angie Powers <Angie.Powers@deschutes.org> Cc: Lawver, Jason (FAA) <Jason.Lawver@faa..gov> Subject: Tye complaint [EXTERNAL EMAIL] Hello Angie, For you information, Inspector Lawver (cc'd on this email) and I personally visited with Ms. Tye in October. We spent about two hours on her property discussing the low flying aircraft issues she claims is happening to her deliberately and the environmental issues. While we were there, there were many aircraft that flew over her home. Each aircraft was approximately 500 - 600 feet above the ground and Ms. Tye told us repeatedly that she had no problem with those aircraft. The pictures and screen shots of Flight Radar 24 she has been sending represent the same aircraft and flying approximately the same altitudes and we see no regulatory issues with these aircraft. The regulations allow an aircraft for the purpose of take -off and landing fly lower than the minimum prescribe altitudes. The aircraft that were flying over Ms. Tye's home on that day appeared to be flying reasonable altitudes for that distance from the airport. The aircraft in the subsequent pictures she has been sending appear to be at reasonable altitudes. Unfortunately, for Ms. Tye she lives about 1.5 miles from the airport in an area were the aircraft are turning over her home towards the runway. 1 Also, we explained to Ms. Tye numerous times that the FAA does not regulate the environmental issues she claims she is experiencing and needs to contact local authorities or the EPA. Thank you, 2;01 '5~i Operations Frontline Manager, Portland FSDO 3180 NE Century Blvd, Hillsboro, OR 97124 (C) 503-746-3797 (0)503-615-3264 "Safety is a journey, not a destination" Safety Management System Voluntary Program (SMSVP) - Learn more at GA Safety Outreach Initiative website We value your feedback! https://www.faa.gov/about/office cm/headquarters offices/ays/stakeholder feedback/afx/field/sf fs do/ 2 BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Sisters Area Chamber of Commerce Presentation BACKGROUND AND POLICY IMPLICATIONS: In December 2022, the Sisters Area Chamber of Commerce submitted a $125,000 request for video lottery funds to support business operations and activities, such as monthly networking events, member marketing campaigns, and advocacy for services in the Sisters area. The funds would also support expenses for the Harvest Faire event and the Shop Local campaign. The Board asked staff to coordinate a presentation from the Sisters Area Chamber of Commerce to learn more about the organization and its work. BUDGET IMPACTS: This funding request was not included in the FY23 video lottery expenditure plan that commissioners completed in April 2022. ATTENDANCE: Stephanie Robinson, Administrative Analyst Judy Trego, Sisters Area Chamber of Commerce CEO Turi Shergold, Sisters Area Chamber of Commerce CFO BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Request from City of Sisters for ARPA Reserve Allocation BACKGROUND AND POLICY IMPLICATIONS: At the December 15, 2021 Board of County Commissioners meeting, the City of Sisters presented an ARPA funding request for a proposed future affordable housing project. The Board allocated $500,000 in reserves for future consideration of the project. At the January 11, 2023 Board of Commissioners meeting, the City of Sisters will provide project status updates and request that reserve funds be formally allocated for the project. ATTENDANCE: Joe O'Neill, Interim City Manager, City of Sisters Michael Preedin, Mayor, City of Sisters Kerry Prosser, City Recorder/Assistant to the City Manager, City of Sisters Scott Woodford, Community Development Director, City of Sisters Clayton Crowhurst, Northwest Housing Alternatives Laura Skundrick, Deschutes County Finance CITY OF SISTERS PO Box 39 - Sisters, Or 97759 I Ph: 541-549-6022 I www.ci.sisters.or.us January 03, 2023 Deschutes County Board of Commissioners PO Box 6005 Bend, OR 97708-6005 Re: Sisters Request for Reserved ARPA Funds Dear County Commissioners, Last winter the Board of County Commissioners reserved $500,000 in ARPA funds for an affordable housing project in Sisters. We are at the point where we would like to have the Board officially allocate the funds to the City for a proposed project. This month the City Council will be considering the approval of a development agreement with Northwest Housing Alternatives (NHA) for a multi -family rental housing project in Sisters. The development will be a multi -story building with one-, two-, and three -bedroom units; located on North Trinity Way in Sisters. The building design will feature a minimum of 40 affordable units with an additional manager's unit. Amenities will include a community space, outdoor play area, and easy access to shopping, work, and other amenities within the city. Units at the property will be targeted at households making 65% AMI or Tess with unit sizes designed for individuals, couples, families, and seniors. About Northwest Housing Alternatives Founded in 1982 as a family homeless shelter, Northwest Housing Alternatives (NHA) is now a leading not -for -profit developer of affordable and workforce housing throughout Oregon. Their mission is to create individual opportunity through housing. To that end, NHA develops, builds, and asset manages rental housing designed for Oregonians in diverse populations including families, workforce, seniors, veterans, and individuals experiencing disabilities. The official allocation of the $500,000 in ARPA funds by the County would allow the City to continue to move forward with our goal of building more affordable housing for those struggling in our community. Sincerely, Michael Preedin, Mayor CITY OF SISTERS Meeting Date: January 11, 2023 Staff: Scott Woodford, Community Development Director Dept: Sisters Community Development Department Subject: Sisters Affordable Housing Project — ARPA Fund Request from Deschutes County Action Requested: Approval by the Deschutes County Board of County Commissioners for disbursement of $500,000 of American Rescue Plan Act funds to the City of Sisters for construction of a 40-unit affordable housing, multi -family project in Sisters. Background: • The city has prioritized supporting affordable housing in Sisters. A City Council goal for fiscal year 2022/23 is to identify land and development partner(s) for a future multi -family affordable housing rental project. • Several funding sources have been identified to support the project, including $500,000 of American Rescue Plan Act (ARPA) funds reserved by Deschutes County for a multi -family, affordable rental housing project in Sisters. • A site and development partner have been identified. In August of 2022, the City issued a Request for Proposals (RFP) for use of the funds for affordable housing. The city received one proposal — from NW Housing Alternatives (NHA). • NHA proposes a 40-unit apartment building including one-, two -and three -bedroom units with one manager's unit and amenities, such as a community space and outdoor play area on a portion of a vacant lot at 322 North Trinity Way in Sisters currently owned by the International Church of the Foursquare Gospel (Wellhouse Church). Units will be designed for individuals, couples, families and seniors. • Units will be targeted at households making 65% of the Area Median Income (AMI) or less. Affordable apartments at this income level allow NHA to access federal and state funding sources. With some grants/tax credits, there may be the ability to "income average," which could allow some units to be up to 80% of the AMI, but the project must be balanced with lower AMI units to average 65% AMI or below. • Founded in 1982, NHA is now a leading not -for profit developer of affordable and workforce housing throughout Oregon. Their mission is to create individual opportunity through housing. To that end, NHA develops, builds, and asset manages rental housing designed for Oregonians in diverse populations including families, workforce, seniors, veterans, and individuals experiencing disabilities. Their statewide 52o E. Cascade Avenue - PO Box 39 - Sisters, Or 97759 I Ph.: (541) 549-6022 I www.ci.sisters.or.us CITY OF SISTERS housing portfolio represents a significant percentage of Oregon's overall affordable housing infrastructure. • Per direction from City Council, the City has begun negotiating grant agreements and deed restrictions with NHA. The grant agreement will be subject to approval of the City Council. • If successful with the grant agreement and disbursement of ARPA funds, NHA will still have to secure larger funding for the project, through state and federal sources. This may take several funding cycles to be successful and will have to negotiate purchase of the property from the current owner. 52o E. Cascade Avenue - PO Box 89 - Sisters, Or 97759 I Ph•: (541) 549-6022 I www.ci.sisters.or.us �01 E S 0 III/' ► < BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Planning Commission Representation / Geographic Areas RECOMMENDED MOTION: Discussion item. BACKGROUND AND POLICY IMPLICATIONS: Staff is seeking direction from the Board of County Commissioners as it pertains to the preferred number of appointed Planning Commissioners, and their respective geographic areas. If changes are warranted, Deschutes County Code Chapter 2.52, Deschutes County Planning Commission, can be amended so it informs subsequent recruitments. BUDGET IMPACTS: None ATTENDANCE: Peter Gutowsky, CDD Director COMMUNITY DEVELOPMENT MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, AICP, Director DATE: January 4, 2023 SUBJECT: Planning Commission Representation / Geographic Areas I. DIRECTION Staff is seeking direction from the Board of County Commissioners (Board) as it pertains to the preferred number of appointed Planning Commissioners, and their respective geographic areas. If changes are warranted, Deschutes County Code (DCC) Chapter 2.52, Deschutes County Planning Commission, can be amended so it informs subsequent recruitments. II. BACKGROUND Recent Board discussions about the Planning Commission composition have highlighted the omission of a Tumalo area representative.' While geographic representation is not mandatory under DCC, this realization provides an opportunity to revisit DCC Chapter 2.52 to ensure that the number of Planning Commissioners and their respective geographic areas remain representative of Deschutes County. DCC Chapter 2.52 has been in place since 1994.2 DCC 2.52.040(A) recognizes seven appointed Planning Commission members.' DCC 2.52.040(D) describes their membership.' They currently represent: At -large (2), Bend (2), Redmond, Sisters, and South County (1 each). The geographic areas are illustrated in Figure 1. The townships and ranges noted in DCC 2.52.040(D) are elaborated further below in Table 1. 1 Board meeting. December 21, 2022. Item #11. https://mccmeetings.blob.core.usgovcloudapi.net/deschutes-pubu/MEET-Packet- 91e89ee474214f93871713a9f54d009f.pdf 2 https://deschutescounty.municipalcodeonline.com/book?type=ordinances#name=CHAPTER 2.52 DESCHUTES COUNTY PLANNING COMMISSION. 3 The commission shall be composed of seven members, appointed by the Board of County Commissioners, who reside within the County. 4 The membership of the commission shall, as much as possible, be representative of the various geographic areas of the County. This should generally consist of the following: One member from the south County area of La Pine and Sunriver (Townships 19-22); two members from the Bend area (Townships 17 and 18); one member from the Tumalo area (Townships 16, Ranges 11 or 12); one member from the Sisters area (Townships 14 or 15, Ranges 9, 10 and 11); one member from the Redmond area (Townships 14 or 15, Ranges 12 or 13); and one member at large. Failure to achieve such geographic representation shall not affect the validity of any action taken by the planning commission. Figure 1— Planning Commission Membership Table 1— Planning Commission Membership Area Existing Single Family Homes 5 Comments Bend 47,614 • Most of Deschutes County's residents live in the Bend area. It represents the city of Bend and thousands of rural residences, Exclusive Farm Use (EFU), Forest Use (F1 and F2), Multiple Use Agricultural (MUA-10), Rural Residential (RR-10), Suburban Residential (SR 2.5), Urban Area Reserve (UAR-10), and Westside Transect (WTZ) zoned properties. • West of Bend, rural residential subdivisions include but are not limited to: Highlands of Broken Top, Inn at 7th Mountain, Miller Tree Farm, Skyliner, Saddleback, Tetherow Destination Resort, Westgate, and Widgi Creek. • To the north, this area captures Gopher Gulch and Hunnell Road neighborhoods and properties accessed off of OB Riley Road. • To the south, there are numerous subdivisions, including but not limited to: Deschutes River Woods, Sunset View Estates, and Woodside Ranch. • To the east, the area extends to Crook County. It encompasses the Bend Airport, Alfalfa area, and rural residential neighborhoods and EFU properties accessed from Alfalfa Market Road, Bear Creek Road, Gosney Road, Neff Road, Powell Butte Highway to Butler Market Road, and Rickard Road. Redmond 19,359 • This area represents the second largest number of residents in Deschutes County. It represents the city of Redmond and rural residences, EFU, MUA-10, and RR-10 zoned properties. • West of Redmond, rural residential subdivisions include Crest Ridge Estates, Eagle Crest Destination Resort, Kachina Acres, and Odin Estates. • It extends north to the Jefferson County border and includes Terrebonne, a portion of Crooked River Ranch, Lower Bridge, rural residential development near Smith Rock, and Ranch of the Canyons. To the east, north-east, the area extends to Crook County. • To the south it encompasses EFU and MUA-10 zoned properties. 5 Multi -family homes were not counted. Assessor data for multi -family development is only available as a paper copy. -2- Area Existing Single Family Homes 5 Comments Sisters 6,054 • This area represents the city of Sisters and rural residences, EFU, MUA-10, and RR- 10 zoned properties. • West of Sisters, rural subdivisions include Black Butte Ranch Resort, Crossroads, and Tollgate. • It extends north to the Jefferson County border and includes Indian Ford Meadows, Sage Meadows, and Squaw Creek Estates subdivisions. • To the east, the area captures Aspen Lakes and Panoramic View Estates. • To the south it encompasses F1 and F2 zoned properties. South County 13,939 • This area represents the third largest number of residents in Deschutes County. • It extends from Sunriver south to the Klamath County border, southeast to the Lake County border, west towards the Deschutes River and east along Highway 20 to the Harney County border. • South County includes the city of La Pine and rural residents in Caldera Springs Destination Resort, Crosswater, and EFU, F1 and F2, and RR-10 zoned properties. Tumalo 2,996 • This area extends beyond greater Tumalo and captures rural residences, EFU, MUA- 10, and RR-10 zoned properties. • Its westward boundary encompasses rural residential properties that access Sizemore Road. • To the north, residences utilize Ines Market Road, Old Bend Redmond Highway, and Tumalo Road. • From the south and east, residences access Deschutes Market Road, Highway 97, Hunnell Road, McVey Avenue, Old Bend Redmond Highway, Quarry Avenue, SW Canal Boulevard, SW 61' Avenue, and Tumalo Reservoir Road. III. PLANNING COMMISSION GEOGRAPHIC AREA CONCEPTS Staff offers three concepts for the Board's consideration. Two maps are attached with the memorandum depicting Concepts 1 and 2. Concept 1—Tumalo Area Addition Area Geographic Adjustments Comments At -Large N/A • Maintains (7) Planning Commissioners • Replaces (1) At Large position for Tumalo Area • No code amendment is required Bend No Bend No Redmond No Sisters No South County No Tumalo No -3- Concept 2 — Tumalo & Terrebonne Area Additions Area Geographic Adjustments Comments Bend No • Maintains (7) Planning Commissioners • Replaces (1) at large position for Tumalo • Replaces (2) at -large position for Terrebonne • Requires a code amendment Note: In the event, a recruitment for a geographic Bend No Redmond Yes Sisters No South County No area is unsuccessful, the Board, could choose to fill a Planning Commission vacancy with an at- large position. Terrebonne 6 Yes Tumalo No Concept 3 — Tumalo, Terrebonne, & At -Large Positions Area Geography Adjustments Comments At -Large N/A • Establishes a (9) member Planning Commission • Maintains (2) At -Large Positions • Adds a position for Tumalo • Adds a position for Terrebonne • Requires a code amendment Note: In the event, a recruitment for a geographic At -Large N/A Bend No Bend No Redmond Yes Sisters No South County No area is unsuccessful, the Board, could choose to fill a Planning Commission vacancy with an at -large Position. Terrebonne Yes Tumalo No IV. OBSERVATIONS 1. Dais - Given the physical limitations of the Deschutes Service Center, Barnes and Sawyer rooms, no more than seven Planning Commissioners can sit at the dais. Appointing additional members which is not a requirement under state law, would need to sit at adjoining tables, which could be awkward during public hearings and deliberations.' Alternatively, sitting all the Planning Commissioners in front of the dais could also be problematic since many would not face the audience or the cameras. 2. Concept 1— This concept honors the existing code with representation from up to seven Planning Commissioners. The Tumalo area position would replace an at -large vacancy that becomes available on July 1, 2023. A second at -large position is also available on July 1 if a forthcoming Bend Area vacancy is converted to an existing at -large Planning Commissioner. No code amendment is required. The township and ranges that currently encompass the Tumalo area, Township 16, Ranges 11 and 12 seem reasonable. Township 15, Range 12 directly to the north, which is in the Redmond area, is 6 There are 2,197 single family residences in the Terrebonne area. 7 ORS 215.030. A county planning commission can consist of five, seven or nine appointed members. Clackamas, Lane, Marion, and Multnomah counties utilize a nine member Planning Commission. -4- predominantly federal land. It does include Eagle Crest Resort, which is associated more with Redmond because it is approximately 2 miles from city limits. Other rural lands in Township 15, Range 11 northwest of Tumalo are located in the Sisters School District. Rural lands in Township 17, Ranges 11 and 12 to the south are predominantly closer to Bend. 3. Concept 2 — This concept requires a code amendment to create a position for Terrebonne and new geographic boundaries for the Redmond and Terrebonne areas. It consists of seven Planning Commissioners, including one for Tumalo. At -large positons would no longer be preferred. The Terrebonne area boundary could encompass Township 14, Range 12, and a large portion of Township 14, Range 13. In the event, a recruitment for a Terrebonne position was unsuccessful, the Board could, at their discretion, fill a Planning Commission vacancy with an at -large position. 4. Concept 3 — This concept is similar to Concept 2 but increases the Planning Commission to nine members with two at -large positions. Attachments: Planning Commission — Existing Territory Map Planning Commission - Concept 2 Map -5- v1ES BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Public Hearing on the Planning Division Long Range Work Plan for FY 2022-2023 RECOMMENDED MOTION: Hold a public hearing on the Planning Division FY 2022-2023 Work Plan. BACKGROUND AND POLICY IMPLICATIONS: The adopted Community Development Department (CDD) FY 2022-23 Work Plan contains several discretionary long range planning projects varying in complexity and anticipated staff effort. This memorandum is intended to update the Board of County Commissioners (Board) on upcoming work plan projects and solicit any comments and revisions. The purpose is to ensure that long-range staff, which has emerging capacity following completion of prior projects, implements the Board's priorities within staff's available resources. In October 2022, the Board identified priorities for Long Range projects from the Work Plan for late 2022. Tables 1-3, starting on page 2, summarize projects that are completed, ongoing, and yet to be initiated. Staff will request that the Board assign priority to Work Plan projects for early 2023 at the January 18, 2023 BOCC meeting. BUDGET IMPACTS: None ATTENDANCE: Will Groves, Planning Manager COMMUNITY DEVELOPMENT MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Will Groves, Planning Manager Peter Gutowsky, AICP, Director DATE: January 11, 2023 SUBJECT: Planning Division Work Plan Update / Long Range Planning / FY 2022-2023 I. WORK PLAN DIRECTION The adopted Community Development Department (CDD) FY 2022-23 Work Plan contains several discretionary long range planning projects varying in complexity and anticipated staff effort.' This memorandum is intended to update the Board of County Commissioners (Board) on upcoming work plan projects and solicit any comments and revisions. The purpose is to ensure that long-range staff, which has emerging capacity following completion of prior projects, implements the Board's priorities within staff's available resources.2 In October 2022, the Board identified priorities for Long Range projects from the Work Plan for late 2022. Tables 1-3, starting on page 2, summarize projects that are completed, ongoing, and yet to be initiated. Staff is requesting the Board assign priority to Work Plan projects for early 2023. Staff seeks Board direction on prioritizing the following projects: • Non -initiated Long Range Planning Projects listed in Table 3, below • Wildlife inventory Updates (paused in 2022 for Psilocybin regulations) * The Board has indicated it will accept public input as part of this agenda item. Given the level of interest in the work plan, the Board may decide to provide direction to CDD at a subsequent meeting in January. II. BACKGROUND Each spring, CDD prepares an annual work plan describing proposed projects for the coming fiscal year. A review of the draft work plan provides the Planning Commission, Historic Landmarks Commission, ' https://www.deschutes.org/sites/default/files/fileattachments/community development/page/110/2022- 23 work plan annual report - final.pdf. Pages 35-38. 2 The Long Range Planning Section consists of two Senior Planners, a Senior Transportation Planner (FTE allocated across transportation, current and long range planning duties), and two Associate Planners. County Administration, CDD's customers and partner agencies, and the Board the opportunity to provide input, including additions, modifications and possible re -prioritization. The work plan describes the most important objectives and proposed projects in each CDD division based on: 1. Board annual goals and policies; 2. Carry-over projects from current or prior years; 3. Changes in state law; 4. Grants/funding sources; and 5. Public comments. It also serves as the context within which new projects that arise during the course of the year are prioritized and undertaken. The Planning Division Work Plan consistently generates public interest. Ill. COMPLETED PLANNING PROJECTS Table 1 lists completed projects identified in the FY 2022-23 work plan. Table 1 - Completed Planning Projects Project Summary Status H84079/ Affordable Housing Pilot Project Amendments to the Deschutes County Comprehensive Plan and Zoning Map to change the designation of a property to Bend Urban Growth Area and Urbanizable Area (UA) District, respectively. Amendment allows the City of Bend to annex, rezone and approve urban development of the future Parkside Place affordable housing development. Completed. Board adopted City of Bend Urban Growth Boundary (UGB) amendment in June. City Council adopted similar amendments in July 2022. Historic Preservation (CLG Grant) Every 24 months, the State Historic Preservation Office (SHPO) offers matching grants to counties that have been "certified" as historic preservation partners with both the state and federal governments. Deschutes County is a Certified Local Government (CLG). Staff will apply for the next round of grants (2023-2024) in February, which includes coordinating with the Historic Landmarks Commission and City of Sisters. Completed/Ongoing. Grant applications are due February24, 2023. Historic Policy and Procedures Manual Staff prepared a Historic Landmarks Commission Policies and Procedures Manual. It is a reference guide describing the Commission's purpose, authorities, roles, decision making process, applicable laws/regulations and public meeting requirements. Completed. Board reviewed and approved the manual in September. Historic Preservation Strategic Plan Staff prepared a Deschutes County and City of Sisters Historic Preservation Strategic Plan 2022-2027. It provides a framework for shaping the county and City of Sisters' preservation programs over the next five years and creates a blueprint for allocating CLG grant funding Completed. Board reviewed and approved the strategic plan in September. Psilocybin Time, Place, and Manner (TPM) Amendments Measure 109, the Oregon Psilocybin Services Act, was passed by the voters of Oregon, allowing manufacture, delivery, and administration of psilocybin at supervised, licensed facilities beginning on January 2, 2023. Pursuant to Measure 109, the county adopted ordinances that impose reasonable TPM regulations on the location of and operation of psilocybin businesses. Completed. Board completed second reading of TPM amendment on January 4, 2023. These ordinances will be effective in April 2023 -2- IV. ONGOING PLANNING PROJECTS Staff is currently processing or coordinating several land use projects. Table 2 - Ongoing Planning Projects Project Summary Comments Amateur Radio Code Updates Based on Board direction and in coordination with the Deschutes County Building Division, Oregon Department of Aviation, and amateur radio operators, staff has initiated legislative updates to the amateur radio facilities. Ongoing. Planning Commission will conduct a public hearing to consider legislative amendments to streamline and clarify the review process for Amateur Radio facilities on January 12. Applicant- initiated Nonresource Land Amendments Staff is processing four applicant -initiated Plan Amendment and Zone Change applications to change Exclusive Farm Use (EFU) zoning. One is set for Board hearing in January 2023. One has received Hearings Officer review and will be brought to the Board in early 2023. The other two are in incomplete status and are anticipated for hearings in 2023. Ongoing. Deschutes County has a long-standing policy to timely process applicant -initiated plan amendment, zone changes, and/or text amendments. These plan amendments and zone changes require significant resources and are becoming increasingly common. City of Bend Coordination Coordinate with City of Bend on growth management issues, including technical analyses related to housing and employment needs. Ongoing. Staff is coordinating with city staff regarding HB 3318, Stevens Road Tract. In 2023, the City of Bend will initiate an application to expand its urban growth boundary to include this property. City of La Pine Coordination Participate with Property Management and the City of La Pine to update and amend the County owned Newberry Neighborhood comprehensive plan designations, master plan and implementing regulation. Ongoing. Staff is coordinating with the Property Manager and Strategic Initiatives Manager. City of Redmond Coordination Coordinate with City of Redmond to implement their Comprehensive Plan update. Ongoing. Staff is coordinating with the City of Redmond regarding their plans to relocate and expand their wastewater treatment plant. City of Sisters Participate in the implementation of Sisters Country Vision Plan and City of Sisters Comprehensive Plan Update. Ongoing. Staff participates in regular coordination meetings with the Sisters Vision Implementation Team. Comprehensive Plan Update As directed by the Board, an updated Comprehensive Plan needs to incorporate community input to craft new and updated goals and policies regarding agriculture, forestry, housing, recreation, natural resources, natural hazards, economic development, and transportation. This updated community vision is an opportunity to carefully discuss and balance community values in the face of upcoming opportunities and challenges. Ongoing. Staff, in coordination with the consultant, is conducting community conversations, stakeholder meetings, and open houses throughout Deschutes County. The focus in early 2023 is to work with the Planning Commission to consolidate community feedback into updated draft goals and policies. -3- Project Summary Comments Coordination Projects o Destination Resort Overnight Lodging Unit Annual Reporting o Marijuana Annual Reporting / Inspections o Portland State University (PSU) Annual Population Estimate Ongoing. Staff coordinates with relevant stakeholders for these tasks and reports news, updates, and results to the Board annually. Dark Skies The Work Plan identifies updating the Outdoor Lighting Control Ordinance (aka Dark Skies Ordinance). As both the Planning Commission and Board have expressed support for revisiting the County's existing Outdoor Lighting ordinance, staff is preparing a report outlining opportunities and challenges. Ongoing. This report will be presented to the Board in early 2023. Growth Management Committees Coordinate and/or participate on Deschutes County Bicycle and Pedestrian Committee (BPAC), Project Wildfire, and Deschutes County Mitigation and Enhancement Committee. BPAC is involved in the County's Transportation System (TSP) Plan Update, and Sisters Country Expansion Concept Plan. Ongoing. These meetings occur monthly with the exception of the Mitigation and Enhancement Committee, which is an annual meeting. Housekeeping. Amendments - Early2023 Initiate housekeeping amendments to ensure County Code complies with State law. Ongoing. A Public Hearing will be conducted before the Planning Commission in January 2023, prior to a hearing before the Board Road NamingProcess Road Naming requests associated with certain types of development on a semi-annual basis. Ongoing. g g' Rural Accessory Dwelling Units (SB 391) The Oregon Legislature adopted Senate Bill (SB) 391 into law on June 23, 2021. It authorizes a county to allow an owner of a lot or parcel within a rural residential zone to construct one ADU subject to certain restrictions and limitations. Ongoing. Based on Board direction, Staff is monitoring the State 2023 Legislative session for changes to ADU or associated fire hardening requirements, prior to proceeding with local implementation. Sage Grouse Coordination Participate as a cooperating agency with the Bureau of Land Management (BLM) to evaluate alternative management approaches to contribute to the conservation of the Greater Sage -grouse and sagebrush habitats on federal lands. Ongoing. Staff will continue to represent the County at multi - agency coordination meetings as part of the BLM's Greater Sage Grouse planning process. Short Term Rentals Based on Board direction, Staff is producing a summary of opportunities and challenges associated with residential short term residential rentals. Ongoing. This summary will presented to the Board in early 2023. Transportation Growth Management (TGM) Grant CDD received a $75,000 TGM grant to: o Update the Tumalo Community Plan's bike, pedestrian, and transit elements; and o Implement the rural trails portion of the Sisters Country Vision Action Plan. Ongoing. The consultant has prepared draft concepts for both items and shared them with the respective stakeholder advisory committees. Staff will then begin the process to adopt the TGM Tumalo bike/ped/transit elements into the Tumalo Community Plan (TCP) and the process to add the proposed rural trails to the County TSP map of bike routes. -4- Project Summary Comments Transportation System Plan (TSP) 2020-2040 Road Department is funding a $250,000 update to the TSP. Ongoing. Consultant has posted an online story map and draft list of projects with short description of project, planning level cost estimate, and prioritization. The online site was accepting public comments received until Dec. 31, 2022. Planning and Road Department will then review the comments and determine if any revisions are needed. Formal adoption of the TSP, including policies and the project list, is expected to begin in early 2023. Tumalo Community Plan CDD is preparing a 2020-2040 update to the Tumalo Community Plan (TCP) o Review Community Vision o Update tables on basic information for population, developed lots, and traffic volumes o Review and revise policy language as needed based on community input Ongoing. Staff has held several open houses and online presentations on the TCP. Staff brought forth draft policies at the most recent open house on August 22, 2022. Based on public feedback, staff is revising several policies. Staff intends to hold more public outreach and at least one more open house in Tumalo prior to beginning Planning Commission hearings in early 2023. Wildfire Mitigation (SB 762) In 2021, the Oregon Legislature passed SB 762, which has significant impacts on wildfire mitigation efforts across all jurisdictions in Oregon. The initial risk map was made available on June 30, 2022. However, based on significant concern from citizens and interest groups through the state, ODF withdrew the initial risk map to provide more time for additional public outreach and refinement of risk classification methodologies. ODF anticipates new risk maps will be finalized by late fall or early winter 2023. Ongoing. Staff is monitoring SB 762 and will provide regular updates relating to forthcoming revisions and process related to the Oregon Department of Forestry's wildfire risk map. Wildlife Inventory Update In fall 2021, the Board directed staff to initiate a pilot project add a new mule deer winter range inventory from the Oregon Department of Fish and Wildfire (ODFW) to the county's Goal 5 protected resources. The County's existing mule deer winter range covers approximately 315,947 acres. ODFW's new inventory proposes an additional area of 188,132 acres, resulting in total of 503,979 acres. Incorporating the new inventory into DCC would require: o Amending the Comprehensive Plan and zoning code o Drafting parcel -specific maps showing properties affected by the existing and proposed winter range o Writing extensive findings o Creating interactive website o Scheduling public open houses and hearing Ongoing. This project was delayed until 2023, at Board direction, to prioritize TPM regulations for psilocybin. Staff is seeking Board prioritization of this work plan item as part of this update. -5- V. PROJECTS NOT YET INITIATED Table 3 lists long range planning projects that have not been initiated. It recognizes staffing resource requirements for each project. They range from "minor" to "significant" as noted below: • A "minor" rating (2 to 6 months) • A "moderate" rating (4 to 8 months) • A "significant" rating (6 to 12 months) Table 3 - Non -initiated Long Range Planning Projects Project Summary County Resources Bend Airport Update and adopt the Bend Airport Master Plan and amend the Comprehensive Plan and Development Code to incorporate implementation measures to allow new airport -related businesses. Initial coordination meetings with City of Bend were held in late 2022. Minor to Moderate Community Plans Engage Terrebonne and Newberry Country residents to determine if community plans should be updated. Significant Legislative Session Participate in legislative or rulemaking work groups to shape state laws to benefit Deschutes County. Minor Zoning Amendments 3 • Minor variance 10% lot area rule for farm and forest zoned properties. (Attachment A) Minor • Outdoor Mass Gatherings update. (Attachment B) Moderate • Lot Line Adjustments and Re -platting. (Attachment C) Moderate • Sign code to become consistent with federal law. (Attachment D) Moderate • Accessory structure amendments clarifying they must be built concurrent with or after the establishment of a primary residence. Specify allowed facilities (baths, cook tops, wet bar) in residential accessory structures. (Attachment E) Moderate • Section 6409(a) of the Spectrum Act (Attachment F) Minor • In conduit hydroelectric generation code amendments (Attachment G) Significant • Repeal Conventional Housing Combining Zone (Attachment H) Minor • Define family for unrelated persons HB 2538, Non -familial Individuals (Attachment I) Moderate • Temporary use of recreational vehicles as dwellings (Attachment J) Moderate VI. BOARD DIRECTION Staff seeks Board direction on the priority of the following projects: • Non -initiated Long Range Planning Projects listed in Table 3 • Wildlife inventory Updates Given the level of interest in the work plan, the Board may decide to provide direction to CDD at a subsequent meeting in January. 3 Detailed descriptions of Zoning Amendment projects are provided as attachments to this memo, as noted. -6- Attachments A. Minor Variance /10% Lot Area Rule B. Outdoor Mass Gathering Update C. Lot Line Adjustment and Replatting D. Sign Code E. Accessory Structures F. Spectrum Act / Section 6409(a) G. In Conduit Hydroelectric Generation H. Conventional Housing Combining Zone I. Family Definition for Unrelated Persons (HB 2538) J. Temporary Use of Recreational Vehicles -7- COMMUNITY DEVELOPMENT Attachment A- Minor variance 10% lot area rule for farm and forest zoned properties BACKGROUND & OVERVIEW Lot line adjustments have been used to circumvent lot -area -based development standards both under local code and state statute. In 1991, County Code was amended (Ord. 91-038) to limit area reduction of Tots that are currently smaller than the minimum lot size (to a maximum reduction of ten percent) without a more complicated variance review process. In the past two decades, state statute (ORS 92.192) has been updated to include protections for lot - area -based standards that are more robust and nuanced than the County Code provision. Currently both the state and county protections apply. However, because the County provisions are more of a "blunt instrument", they cause unexpected problems for operators of large farms. Specifically, because the minimum lot size for most farm -zoned properties is 80 acres, the transfer of sub-80 acre pieces between neighboring farm operations is needlessly complicated by County Code. CURRENT PROCESS & CHANGES Potential text amendments would remove the conflict between DCC and ORS by changing DCC 18.132.025 to exclude farm and forest zone properties from the County's ten -percent reduction limitation. Key Amendment Concerns Staff Effort/Resources Medium/Low Legal Complexity Low Implementation Urgency Medium/Low COMMUNITY DEVELOPMENT Attachment B - Outdoor Mass Gathering - Revise County Code to Reflect Changes in State Statute BACKGROUND & OVERVIEW Multi -day festivals have long been held in Oregon and multi -day music festivals became especially popular in Deschutes County in the mid-2000s. Between 2013 and 2022, the County processed 12 Outdoor Mass Gathering (OMG)1 applications including Board Hearings on the dozen applications. Many of these applications were for the Four Peaks Music Festival. Issues for the OMG permits ranged from noise to traffic to incompatibility with adjacent land uses. The applicable review and approval criteria for Outdoor Mass Gatherings (OMG) are found in Deschutes County Code (DCC) 8.16 (Events, Parades, Funeral Processions, and Outdoor Mass Gatherings) specifically DCC 8.16.010 and DCC 8.16.150 through 8.16.340. This code language must be consistent with state statute, specifically Oregon Revised Statute (ORS) 433.735 to 433.770 (Regulation of Outdoor Mass Gatherings) Concerns about the effects of OMGs as well as a patchwork approach in statute to outdoor events eventually led the Legislature to approve HB 2790 (2019) to modify Oregon Revised Statute (ORS) 433.735 to ORS 4.33.770. Previously, OMGs were regulated only for health and safety under ORS 433.750 and were not land use decisions under ORS 197.015(10)(d). HB 2790 made local review of a permit for a single gathering of more than 3,000 people and lasting more than 120 hours into a land use decision. OMGs that are not a land use decision, but regulated by health and safety regulations only: • Events of Tess than 3,000 people lasting up to 120 hours • Events of more than 3,000 people, but lasting less than 24 hours • Events of more than 3,000 people lasting up to 120 hours CURRENT PROCESS & CHANGES Under DCC 8.16.170(A), the County requires permits for OMGs and Extended OMGs with public hearings before the Board for OMGs and the Planning Commission for Extended OMGs. Under HB 1 Defined in ORS 433.375(2) as a gathering in an open space with actual or reasonably anticipated attendance of more than 3,000 people and lasting between 24 and 120 hours and occurs once within a three-month period. DCC 8.16.010 defines an OMG sets actual or expected attendance of between 500 and 3,000 people and last for between more than 4 and less than 24 hours. DCC 8.16.010 defines an Extended OMG as attendance expected of more than 3,000 people or more than 500 persons for an event that last more than 240 hours, including set-up and breakdown. 2790, an application for an OMG becomes a land use decision - thus following the requirements of Title 22 - and the decision can be made administratively or before a hearings officer, and is appealable to the Board and ultimately the Land Use Board of Appeals (LUBA). Changes would need to be made to DCC 8.16 to reflect changes in definitions and processes. Key Amendment Concerns Staff Effort/Resources Medium Legal Complexity Low Implementation Urgency Low Page 2 of 2 COMMUNITY DEVELOPMENT Attachment C - Replatting and Property Line Adjustment Amendments BACKGROUND & OVERVIEW Property owners have two primary options for adjusting the boundaries of properties created through subdivisions or partitions: 1. Replats 2. Property line adjustments/consolidations Simple lot line adjustments involving a single property line are adequately regulated under statute (ORS 92.192). Significant reconfiguration of partitions and subdivisions are regulated under replatting standards, which are more comprehensive and take into account how reconfiguration of properties might affect surrounding roads, emergency access, and infrastructure capacity. However, the Deschutes County Code contains ambiguous language defining when applicants should utilize replatting standards versus property line adjustments and property line consolidations. CURRENT PROCESS & CHANGES As noted by the by the Deschutes County Road Department, under current county code, the potential exists for an applicant to apply for a series of property line adjustments to convert adjoining undevelopable properties into developable properties without any consideration for transportation infrastructure impacts. This potential is particularly present in undeveloped portions of subdivisions platted prior to the statewide land use program. Notable examples include portions of the Hillman, Millican, Centralo, and Laidlaw townsite plats. While the Road Department does not have specific recommendations to correct these issues, they outline the following possibilities: • Property line adjustments that would reconfigure existing adjoining undevelopable units of platted land into a certain number of developable units of land shall be processed as a replat. • Property line adjustments that would allow for development that is not subject to site plan review with the potential to generate a certain number of weekday PM peak -hour trips shall be processed as a replat. Code amendments to address these issues would allow a more dear understanding of the thresholds for applying replatting standards versus more simplified property line adjustment standards. While generally uncommon, staff has encountered high profile applications wherein definitional clarity between these two application types would have avoided additional legal or consultant fees for the applicant while also addressing the impact concerns of the Road and Community Development Departments. Key Amendment Concerns Staff Effort/Resources Medium Legal Complexity Medium Implementation Urgency Medium Page 2 of 2 COMMUNITY DEVELOPMENT Attachment D - Sign Code Amendments BACKGROUND & OVERVIEW Currently, Deschutes County Code includes limitations on signs based on their content. In Reed v. Town of Gilbert (2015), the U.S. Supreme Court found a content -based sign ordinance may impede on an applicant's First Amendment right to Freedom of Speech based on the content of a given sign. Building on Reed, the Court reviewed a separate sign code -based case under City of Austin v. Reagan National Advertising of Austin (2022). In Austin, the U.S. Supreme Court found that certain sign code provisions (such as requiring advertising signs to be placed on the premises of the entity being advertised) can be considered content -neutral under the right to Freedom of Speech under the First Amendment of the U.S. Constitution. Deschutes County currently implements its Sign Code through Deschutes County Code Title 15.08. Reed implies that Deschutes County should ensure that their Sign Code provisions are "content - neutral" or else be subject to "strict scrutiny" under the First Amendment. Austin implies that not all provisions of a given sign code are automatically "content -based" and, therefore, some sign code provisions are subject to "intermediate scrutiny" rather than "strict scrutiny" under the First Amendment. In Austin, the U.S. Supreme Court found that, in order to survive intermediate scrutiny, a restriction on speech or expression must be "narrowly tailored to serve a significant government interest". CURRENT PROCESS & CHANGES Revisions to the Sign Code could ultimately bring Title 15.08 into compliance with Federal case law and interpretations around sign content and Freedom of Speech included in Reed (2015) and Austin (2022). Staff foresees working closely with County Legal Counsel to review the existing Sign Code, ensuring that content -based provisions are designed to be content -neutral. Key Amendment Concerns Staff Effort/Resources Medium/High Legal Complexity Medium/High Implementation Urgency Medium COMMUNITY DEVELOPMENT Attachment E - Accessory Structure Amendments BACKGROUND & OVERVIEW The County regularly receives requests for residential accessory buildings with many of the features of dwelling units (e.g. kitchen -like areas, multiple full -baths, wet bars). Despite careful communication with developers, these residential accessory buildings are often converted to illegal dwelling units or are misrepresented as ADUs to subsequent buyers of the property. The Deschutes County Code (DCC) Tacks provisions common in other Counties' code such as: 1) Specification of allowed plumbing and other dwelling -like features permissible in residential accessory buildings, 2) A requirement for a recording to the property title, alerting future buyers that the residential accessory building is not an ADU, or 3) A requirement that that the dwelling (primary use) must be constructed first (or at the same time) as residential accessory buildings. CURRENT PROCESS & CHANGES The Board has expressed interest in creating clarity within the County Code around these potentially ambiguous provisions. As one example, the City of Bend currently utilizes a code system that provides specific definitions of certain improvement types, and clear standards of when and where these improvements are allowed. City of Bend also provides accessory structure -related code language, clearly specifying that primary uses must be established prior to accessory structures. Revisions to County Code related to residential accessory buildings could offer more clarity for residential property owners looking to develop and could help with the differentiation between primary and accessory structures. Key Amendment Concerns Staff Effort/Resources Medium Legal Complexity Medium Implementation Urgency Medium/High 1 ES COM UNITY DEVELOP E\j ENT Attachment F - Spectrum Act - Wireless Telecommunication Amendments BACKGROUND & OVERVIEW On February 22, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 became law. Section 6409(a) of the act, also known as the Spectrum Act, was intended to advance wireless broadband service for public safety and commercial purposes and to provide for the creation of a broadband communications network for first responders. Along with Section 704 of the Telecommunications Act of 1996 (Public Law 104-104), the Spectrum Act can be viewed as part of the ongoing effort by the wireless industry to achieve federal preemption over local telecommunications zoning regulations. As such, Deschutes County (along with many other State and local governments) must alter existing telecommunication regulations which do not align with certain aspects of the Spectrum Act. The Spectrum Act and corresponding Federal Communications Commission (FCC) rulings outline the following standards: • Applies to collocations, removals, or modification of equipment on wireless towers or base stations; • Mandates that a State or local government "may not deny, and shall approve" any application covered by section 6409(a); • Does not apply to collocation on a structure that is not a wireless tower or base station; and • Does not apply if action substantially changes the physical dimensions of a tower or base station. Regarding the process for reviewing an application under Section 6409(a), the FCC also provides that: • A State or local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facilities request meets the requirements of Section 6409(a); • A state or local government must approve an application covered by Section 6409(a) within 60 days from the date of filing, subject to tolling; the running of the period may be tolled by mutual agreement or upon notice that an application is incomplete, but not by a moratorium (an incomplete notice must be provided according with the same deadlines and requirements applicable under Section 704 of the Telecommunications Act of 1996, codified as 47 U.S.C. § 332(c)(7)); and • An application filed under Section 6409(a) is deemed granted if a State or local government fails to act on it within the requisite time period; In the summary, Section 6409(a) restricts local land use review of modifications and collocations by establishing a "substantial change" test as the primary eligibility determinant for review exemptions afforded by the Spectrum Act and reduces the application processing "shot clock" from 90 days to 60 days. CURRENT PROCESS & CHANGES Deschutes County Code (DCC) Section 18.116.250 contains provisions which directly contradict the standards of the Spectrum Act described above. However, the Community Development Department (CDD) currently evaluates and approves applications for non -substantial changes to physical portions of existing wireless telecommunication facilities (such as collocations of infrastructure) pursuant to the standards of Section 6409(a). However, code amendments would allow a more seamless understanding of the Spectrum Act approval standards for both staff and applicants by codified the Spectrum Act standards in formal Deschutes County documents and ordinances. Any proposed amendments would ultimately include an objective set of standards for what constitutes "substantial changes" to existing wireless telecommunication facilities. Key Amendment Concerns Staff Effort/Resources Medium/Low Legal Complexity Medium Implementation Urgency Medium/Low Page 2 of 2 COMMUNITY DEVELOPMENT Attachment G - Conduit Hydroelectric Facility Amendments BACKGROUND & OVERVIEW In 1986, Deschutes County adopted Ordinance No. 86-018, allowing hydroelectric facilities as a conditional use. In 2020, Three Sisters Irrigation District (TSID) applied for a hydroelectric facility to be integrated into their existing conduit system for the purpose of generating operational revenue for the district. The Board ultimately approved the request, only applying the provisions of DCC 18.128.260(A-B) that pertained to hydroelectric facilities located along existing conduit, not located directly adjacent to natural waterways or impoundments. The Board's approval was ultimately upheld at the Land Use Board of Appeals (LUBA) in 2022. CURRENT PROCESS & CHANGES During final reading of the Board's hydroelectric facility approval, the Commissioners expressed an interest in revisiting the code provisions at DCC 18.128.260(A-B) for the purpose of differentiating the "riverine" and "conduit" facilities, as characterized throughout the review of the TSID application'. The Board mentioned the terms "affected stretch of river" and "maintain or enhance" as language that may be changed to differentiate between these types of hydroelectric facilities. Other changes to existing code language may be necessary to fully encapsulate the review criteria that may apply to riverine and conduit facilities, respectively. These revisions would ultimately create a more streamlined review process for conduit hydroelectric facility proposals which do not directly abut waterways or otherwise directly impact rivers or other water sources. Key Amendment Concerns Staff Effort/Resources Medium/High Legal Complexity Medium Implementation Urgency Medium 1 Deschutes County BOCC Decision (Document No. 2021-223) pg. 20. 2021. TES C, C MMUNITY DEVELOPMENT Attachment H - Conventional Housing Combining Zone Amendments BACKGROUND & OVERVIEW The purpose of these amendments is to repeal the Conventional Housing Combining Zone (CHC Zone) from the County's zoning map and zoning code. Deschutes County adopted the CHC in 1979 as part of Ordinance PL-15, the County's Zoning Ordinance. The CHC serves as an overlay district and restricts placement of manufactured or prefabricated homes in specific areas of the County with the following stated purpose: "To provide a variety of residential environments in rural areas by maintaining areas reserved for conventional and modular housing permanently attached to real property". The CHC applies to three areas - an area to the east of Tumalo, west of Tumalo and east of Bend2. In 2020, the County produced a Rural Housing Profile, which outlined several potential strategies for removing barriers to housing production in rural Deschutes County. Repeal of the CHC was listed as a strategy as it would give those properties the potential to provide affordable housing in the form of mobile or manufactured homes, which are less expensive alternatives to stick -built or modular housing. In addition to this, on March 23, 2022, Oregon House Bill 4064 became effective. The bill amended several sections of Oregon Revised Statute to prohibit local governments from prohibiting siting of prefabricated structures in residential areas where traditional single-family homes or other common dwelling types were allowed. Although the amendments were targeted toward cities and urban growth boundaries, several code provisions also limit the County's ability to limit manufactured prefabricated homes in residential areas. PROPOSED CHANGES The CHC is a mapped Combining Zone and removal of the zone from the three aforementioned areas would require: 1) Repeal of section 18.92 Conventional Housing Combining Zone from the Deschutes County Code 2) Zoning Map Amendment to repeal Conventional Housing Combining Zone 1 DCC 18.92.010 2 https://www.deschutes.org/sites/default/files/fileattachments/community development/page/16511/housing profile - conventional housing combining zone map.pdf Key Amendment Concerns Staff Effort/Resources Low/Medium Legal Complexity Medium Implementation Urgency Medium/High Page 2 of 2 COMMUNITY DEVELOPMENT Attachment I - Amend County Code to define family for unrelated persons. Non -familial Individuals (HB 2583) BACKGROUND & OVERVIEW Until the passage of House Bill 2583 in 2021, local law in Oregon dictated residential occupancy limits based on "family" or "related" persons, essentially limiting how many unrelated people could share a home, regardless of dwelling type, size, or ownership status. This restriction served to unnecessarily limit housing choices —a particular pressure point in the current housing crisis. HB 2583 now precludes the "family" clause from single-family occupancy requirements, stating: "A maximum occupancy limit may not be established or enforced by any local government, as defined in ORS 197.015, for any residential dwelling unit, as defined in ORS 90.100, if the restriction is based on the familial or nonfamilial relationships among any occupants." CURRENT PROCESS & CHANGES Deschutes County Code (DCC) Section 18.04.030, Definitions, currently defines "family" as: "an individual or two or more persons related by blood, marriage, legal adoption, or legal guardianship living together as one housekeeping unit using a common kitchen and providing meals or lodging to not more than three additional unrelated persons, excluding servants; or a group of not more than five unrelated persons living together as one housekeeping unit using a common kitchen." This allows a total of five people if the residents are unrelated, but an undetermined number if the dwelling houses a family (which could be any size) as well as three unrelated persons. Staff is investigating how other Oregon Counties have approached House Bill 2583. Clackamas County, for example, allows a total of 15 persons, regardless of relationship. Utilizing a flat occupancy rate (like Clackamas County) means that a small home would have the same occupancy limit as a large home, which seems relatively illogical and could result in overcrowding of smaller dwellings as well as overloading of septic systems. Relating occupancy to number of bedrooms appears reasonable in that the occupancy limits would relate to the size of the dwelling. However, this could also lead to complications with respect to what is considered a bedroom. Often, rooms are used as bedrooms by residents even if they do not meet the definition in the building code with respect to windows, egress, and size. This amendment would require choosing a policy direction for a preferred definition as it relates to occupancy. Key Amendment Concerns Staff Effort/Resources Medium/Low Legal Complexity Low Implementation Urgency Medium/Low Page 2 of 2 COMMUNITY DEVELOPMENT Attachment] - DCC 18.116.095 Recreational Vehicle as a Temporary Residence on an Individual Lot BACKGROUND & OVERVIEW County Code allows a vacant property to be occupied by a recreational vehicle (RV) for either 30 days in any 60-day period without a permit or 180 days with a permit. Ambiguity in the current regulations result in significant code enforcement burden and difficulty ensuring proper disposal of wastewater. Issue areas include: • Failure to implement or maintain lawful wastewater disposal • Fire safety concerns • Occupancy beyond lawful duration • Violation of Wetland or Floodplain regulations • Establishment of Hipcamps (online nightly rentals of RV spaces) • Construction of buildings accessory to the RV use of the property CURRENT PROCESS & CHANGES Under Board direction and with public outreach and input, Staff would update DCC 18.116.095 to better address these concerns. Key Amendment Concerns Staff Effort/Resources Medium Legal Complexity Low Implementation Urgency Medium Subject: Name BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony `�1awrrov�c +- W04-P)w 1�7 .. Date: I-11-g3. 4d r- Address fb log' t tvvvwuAL J 1 c °t 7 Phone #s LX71) 5710 - L- -a sco E-mail address lAj 1 \ Ala D vial . 9 /VtiQ to-y-V In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record,. X Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS Opposed BOARD OF COMMISSIONERSMEETING REQUEST TO SPEAK Citizen Input or Testimony Date: 1//,5 Phone#s StO t1/% 8 E-mail address C ada4v d t,cii L5e 'i In Favor )ma•1, Neutral/Undecided Submitting written documents as part of testimony? Yes L If so, please give a copy to the Recording Secretary for the record. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS Address Phone #s BOARD OF COMMISSIONERS' MEETING. REQUEST TO SPEAK Citizen Input or Testimony Ait-CcZ5nt.,) A5-30 Asw sqT40w --625fr-3(Sy E-mail address In Favor corn Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record.. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: -14/,67✓ 4/`l, Phone #s E-mail address In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? 'es No If so, please give a copy to the Recording Secretary for the record. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS w a sr; Subject: Name Address BOARD OF COMMISSIONERSMEETING REQUEST TO SPEAK Citizen Input or Testimony " Q c Date: Phone #s E-mail address In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If' so, please give a copy to the Recording Secretary for the record. Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: ; Fe SCIrtu;k (v Q1U . G ttm evi-ov .p cl.r t Date: \-- t)2; Name \k;vAh( Address Phone #s E-mail address In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS BOARD OF COMMISSIONERSMEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: S hwitts 5 '4 'i 0 i) Date: f _ 1 j-Z.3 Name V2'61'`A Address Phone #s E-mail address i[at? = L. bow Le S C ° <1 . o e p csvu In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS 0 a ©0 0) ter Population Mule deer winter population estimates O O O O O O O O O In N LC) N l0 (0 N ci N Li') h l0 CO N N O) N M o -I ci ei 0 1 0) CO N O O LI) M 0 00 0 COc�-I O 0 CO 01 h') N tf7 c-I 00 01 O 00 0) M l0 In M al 0 CO O) CO N l0f) M N CO ul CO CO M V d O II) 01 h 10 N In If) N 1� I.f) N CO l0 ei l0 (0 V O In N I- (0 N if) O 0 t0 CO lO <I O N d' d' 0 N r I, 01 N N CO In N N 0 (0 O l0 ei V N 0 O In i O al N - 00 CO N d' O O O Ln e-1 O N M V) 0 0) O) V �f N h Q d- M O O O e-I O O O O O M 1- O N N ea O Ln Ir) -i V) 7 0 0 0) 0J 0 r0 N O 0 _ CO ++ j a cG o 0 0 0 0 0 C <t Ln rn m NN 0 w � a NN D m m M n , ti Oregon mule deer winter population estimates 34 Upper Deschutes .s35 Paulina 0 73 Wagontire Deschutes District Deer Populations Year Winter Population Estimate Winter Population Objective (MO) 1998 24300 26300 1999 22900 26300 2000 22500 26300 2001 23800 26300 2002 22500 26300 2003 21200 26300 2004 19800 26500 2005 20200 26500 2006 18000 26500 2007 18300 26500 2008 17000 26500 2009 16700 26500 2010 16400 26500 2011 17000 26500 2012 18200 26500 2013 17600 26500 2014 21415 26500 2015 20156 26500 2016 17788 27200 2017 16521 27200 2018 14774 27200 2019 12260 27200 2020 12820 27200 2021 9694 27200 2022 10986 27200 BOARD OF COMMISSIONERSMEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: W (1.-01�1, F .a N'J , Date: 1 Name „ Pc N bLt 14(i— Address & CN ( F="e'('-f P.D. toQ, c1 tvib --rd n 3 Phone #s cat (-16. 0S 3 E-mail address bfelsvteettkvjigus. tort, 7 In Favor Neutral/Undecided Submitting written documents as partof testimony? es If so, please give a copy to the Recording Secretary or the record. Opposed No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS /1/trirP -r-ttf- 9_ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony /\/( 0 )e j�e�� oud-sea �� S Subject: rim0).) 'Srpil )46ei Date: Name Ben3aM;h F313{Y\ Address 2) Lt MAI Ve Ps � 3 Phone #s E-mail address I In Favor �)35 (mm3pJIn<gvhr1@ pirkill (orvl Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed �No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony 66:,/I I'�`y 1 De bk) LI lYPI, L LL,J-0 " Subject: Date: Name Address Phone #s D; `5 5 E-mail address 4eAbefrc. 3 r ICI, In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes 2.No If so, please give a copy to the Recording Secretary for the record. SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: cx- Z.Q;u,'z) "'sz"azie._ "Opp, Date: = z Name oot % -6311:3o;Tk z CS1;3 Cz 7 Address 3 t-$. Z _ Phone #s 53 E-mail address ciAla\ii r ..=3'tza) In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: f u lc, ( ,� �lavonk t V 6" *VI Date: Name I v Aaitk S4100 Address 200 Ne Cawtt Lg.ti O z. 111-0 I Phone #s ZOO- ' (¢ SO -VI 20 E-mail address 1-1/41 In Favor o 44 Neutral/Undecided7 7lt-W V 11 U {Ki ✓� (vl t I TC i ftt, 'v t c4 ' / Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS 0 Address BOARD OF COMMISSIONERS' 'MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: / -)EN fl H JiE P 1# 7 Name BTE ve -514 R 01'31 f r✓ 3(0o�� 3 E-1\r D C-7-2 07 Phone #s 11 t 6'17 2 `7 °1 E-mail address cj6.ve 5\CO 3S (re El, In Favor Neutral/Undecided Date: I/ 1 1% 2 3 a/1 rary f. coM Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS JORDAN '' RAM I S January 10, 2023 VIA EMAIL ONLY Deschutes County Board of County Commissioners c/o Peter Gutowsky, Community Development Director Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 E-Mail: Peter.Gutowsky@deschutes.org Steven L. Shropshire steve.shropshire©jordanramis.com OR Direct Dial: (541) 647-2979 36o SW Bond St., Ste. 510 Bend, OR 97702 T (541) 550-790o F (503) 598-7373 Re: Planning Division Work Plan Update — Long Range Planning Projects In Conduit Hydroelectric Generation Code Amendments Dear Commissioners: We represent the Deschutes Basin Board of Control ("DBBC"), which is the intergovernmental organization consisting of irrigation districts in Central Oregon. We appreciate the opportunity to comment on the Deschutes County Planning Division's Long Range Work Plan for FY 2022-2023 and the County's interest in amending its hydroelectric facility code provisions at DCC 18.128.260. We fully support the County's effort to revise the code provisions regulating hydroelectric facilities so as to distinguish conduit hydroelectric facilities clearly and unambiguously from riverine facilities. As recognized through the County's recent experience with the Three Sisters Irrigation District ("TSID") land use application and subsequent appeal at the Land Use Board of Appeals ("LUBA"), the County's hydroelectric facility code provisions contain ambiguous language and approval criteria that are not applicable to conduit hydroelectric facilities —those that do not directly abut waterways or otherwise directly impact rivers or other water sources. As the Board indicated during its approval of the TSID conduit hydroelectric facility, the code needs to be updated to recognize the evolution of hydroelectric generation to include conduit systems. This approach to renewable energy generation is a win -win for the environment and the County's irrigation community. As Central Oregon's irrigation districts undertake significant system modernization efforts in the coming years, the opportunities for additional conduit hydropower projects will arise. By amending DCC 18.128.260 to provide a tailored review process for conduit hydroelectric projects, the County will be removing a significant and nonsensical legal barrier to environmentally friendly power development, and will help minimize the risk of future protracted and costly appeal proceedings like the recent TSID project. 52319-72762 4883-3410-2345.1 Portland I Bend ► Vancouver, WA I jordanramis.com JORDAN RAMIS Deschutes County BOCC January 10, 2023 Page 2 Thank you for considering this critical code amendment, and we look forward to working with the County throughout this process. Sincerely, JORDAN RAMIS PC Steven L. Shropshire Admitted in Oregon and Washington cc via e-mail: Tarik Rawlings and Will Groves, DCCD Craig Horrell and Marc Thalaker, DBBC 52319-72762 4883-3410-2345.1 Portland I Bend I Vancouver, WA I jordanramis.com BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: Name Address Date: I '1 Phone #s 6 Sck E-mail address rwy, Sk ki e 9-`( bi.�.. com In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? 'x Yes If so, please give a copy to the Recording Secretary for the record. No SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS Public Comment — Wildlife Inventory Update Good morning Deschutes County Commissioners, my name is Mark Stockamp, I am a Deschutes County resident, living at 60204 Navajo Road. I am here today to request the Board either continues the pause of the proposed mule deer inventory update or remove it entirely from consideration. Simply, the ODFW has not provided enough compelling factual data to assure Deschutes County residents this expanded mule deer winter range map will be an effective solution to the declining mule deer population. Instead of providing extensive data on various factors to the mule deer population decline, the ODFW has focused its attention on development in Deschutes County being the primary factor and is proposing over -reaching restrictions on property owners, including farmers and ranchers, to fix it. Based on research from the Western Association of Fish and Wildlife Agencies & the US Department of Agriculture, there are many other important factors to consider for the fluctuation in mule deer populations: • Changes in habitat, environmental conditions, disease, predators, and harvest management It seems risky for the ODFW to focus the decline and solution to a single factor when there are so many additional factors to consider: • Huge population growth of cougars • Amount of mule deer hunting tags sold • Expansion of juniper trees taking over Deschutes County's natural landscape, which reduce mule deer habitat and outcompete native bunchgrasses they forage on Deschutes County is in a substantial housing crisis and approximately 80% of the land in Deschutes County is owned by federal, state, or local governments. If proposed mule deer winter range map is passed, it will create more red tape and restrictions to property owners and worsen the housing crisis. The solution to mule deer decline should not solely rely on restrictions to property owners. I urge you to pause or reject the expanded mule deer winter range map and request the ODFW to provide more data regarding other important factors. It will be more valuable for all Deschutes County residents if the ODFW provides more data on potential improvements we could expect in the mule deer population through better predator control of Central Oregon's cougar population, limiting mule deer hunting tags sold, and prioritizing juniper thinning in the current mule deer winter range. Thank you for your consideration. w BOARD OF COMMISSIONERSMEETING REQUEST TO SPEAK Citizen Input or Testimony Subject: Date: Name 3 0 Address` a 93-e30-3 Phone #s q C _7149 — q,q1a E-mail address J 1( l . 1kc /•L In Favor Neutral/Undecided Opposed Yes KN.° If so, please give a copy to the Recording Secretary for the record. Submitting written documents as part of testimony? SUBMIT COMPLETED REQUEST TO RECORDING SECRETARY BEFORE MEETING BEGINS Angie Powers From: Carolyn Ingram <chairapparent@gmail.com> Sent: Tuesday, January 10, 2023 5:24 PM To: citizeninput Subject: POSTPONE Some people who received this message don't often get email from chairapparent@gmail.com Learn why this: is important> [EXTERNAL EMAIL] Postpone ! ! 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Info@oregonpackworks.com Sent Thursday, January 5, 2023 1:04 PM To: citizeninput Subject We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from info@oregonpackworks.com. Learn why this is important at https://aka.ms/LearnAboutSenderidentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Karl Findling 64465 Research Rd. Bend, OR 97703 1 Angie Powers From: mailagent@thesoftedge.com on behalf of talha_mk@hotmail.com Sent: Friday, January 6, 2023 8:04 AM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from talha_mk@hotmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Talha Khan 7451 SE Chinquapin Dr Hillsboro, OR 97123 Angie. Powers From: mailagent@thesoftedge.com on behalf of Niklas Enquist <mailagent@thesoftedge.com> Friday, January 6, 2023 8:12 AM citizeninput We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https;//aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causesWe will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly` two years ago. Sincerely, Niklas Enquist 21192 Copperfield Avenue Bend, OR 97702 Angie Powers From: mailagent@thesoftedge.com on behalf of Wade Schlichenmayer <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 8:14 AM. To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago: Sincerely, Wade Schlichenmayer 5315 Cody Ave Eugene, OR 97402-1011 Angie Powers From: mailagent@thesoftedge.com on behalf of Todd Hill <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 9:40 AM To: citizeninput Subject We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Todd Hill 36268 se tumala my rd Estacada, OR 97023 1 Angie Powers From: Sent:. To: Subject: mailagent@thesoftedge.com on behalf of Leonard Krug <mailagent@thesoftedge.com> Friday, January 6, 2023 10:14 AM citizeninput We Need Updated Wildlife Inventory. Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/Lea rnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the. Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Leonard Krug 97002 Dodge Avenue Brookings, OR 97415-8126 Angie Powers From: mailagent@thesoftedge.com on behalf of Cmo277@sbcglobal.net Sent: Friday, January 6, 2023 10:56 AM To• citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from cmo277@sbcglobal.net. Learn why this is important at https://aka.ms/LearnAboutSenderldentification [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for. county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this. DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Christopher Oswalt 14973 sw April Ct Sherwood , OR 97140 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Jon Hansen <mailagent@thesoftedge.com> Sent Friday, January 6, 2023 11:08 AM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes: We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Jon Hansen 1526 NW Ithaca Ave BEND, OR 97703 Angie Powers From: mailagent@thesoftedge.com on behalf of Casey Heiss <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 12:18 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Casey Heiss 1316 E 14Th st, THE DALLES ,OR,97058 THE DALLES OR, OR 97058 1 Angie Powers From: mailagent@thesoftedge.com on behalf of radams@bendbroadband.com Sent: Friday, January 6, 2023 12:58 PM To: citizeninput Subject: We. Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from radams@bendbroadband.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Rod Adams 15022 N.E. Cayuse Prineville, OR 97754 Angie Powers From: mailagent@thesoftedge.com on behalf of Owen Bacon <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 2:00 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Owen Bacon 734 NE Hazelfern PI Portland , OR 97232 1 Angie Powers From: mailagent@thesoftedge.com on behalf of BJ GRIMMER <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 2:00 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners:. We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development,. recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, BJ GRIMMER 36450 Orr Circle Sandy, OR 97055 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Christopher Flanagan <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 3:36 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/Lea rnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Christopher Flanagan 2325 mile deer ct nw San francisco, OR 97304 1 Angie Powers From: Sent: To: Subject: mailagent@thesoftedge.com on behalf of Thomas Hietala <mailagent@thesoftedge.com? Friday, January 6, 2023 5:50 PM citizeninput We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for. county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Thomas Hietala 60224 Rolled Rock Way Bend, OR 97702 Angie Powers From: mailagent@thesoftedge.com on behalf of Reese Burniston <mailagent@thesoftedge.com> Sent: Friday, January 6, 2023 7:00 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is. important at https://aka.ms/Lea rnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Reese Burniston 4910 SW 45th avenue, apt 18 portland, OR 97221 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Paul Miles <mailagent@thesoftedge.com> Sent: Saturday, January 7, 2023.6:48 AM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from mailagent@thesoftedge.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Paul Miles 12365 SW TREMONT ST Portland, OR 97225 Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] mailagent@thesoftedge.com on behalf of Douglas Brady <mailagent@thesoftedge.com> Saturday, January 7, 2023 11:42 AM citizeninput We Need Updated Wildlife Inventory Maps Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes. County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Douglas Brady 64830 Half Mile lane Bend, OR 97703 1 Angie Powers From: Susan Strauss <susan@straussstoryteller.com> Sent: Saturday, January 7, 2023 2:40 PM To: citizeninput Subject: Update Wildlife Inventory [Some people who received this message don't often get email from susan@straussstoryteller.com. Learn why this is important at https://aka:ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL], Dear Deschutes County Commissioners, Our family of four voters fully supports your vote to go ahead with the proposed Deschutes Co. Wildlife Inventory Update. We know that you postponed its review from July 2022 and are voting next week to consider allowing it to go fo rwa rd. We understand that the wildlife inventory in our county has not been update for over 30 years. Everyone knows that a lot has changed in Deschutes Co. in 30 years. ` Part of our family moved here in 1979, 1989 and our children are close to 23 & 28. Wildlife and healthy ecosystems are an enormous part of what we love about living here and what attracts others to the area. Development that disregards the health of our wildlife will also degrade the economic health of our community. Through study and honest data, other communities have learned to find solutions that are acceptable to all stakeholders in maintaining wildlife health. Every new neighbor in our rural, ranch community has expressed excitement about seeing golden eagles, coyotes and even wolves. There is shared knowledge about the importance of ground squirrels and maintaining populations all prey species. We buy all of our meats from local ranchers who maintain predator -friendly practices and proudly share these sources with any new locals. People always respond to these sources with enthusiasm and serious interest. There is a strong growing movement to support local agriculture while also living in balance with our wildlife. We are particularly delighted to see evidence of wolves coming through our public lands. Wolves will maintain healthy and vibrant undulate populations. In parts of the US where wolves were eradicated, the communities have problems with weak undulate herds who also suffer from CWD "chronic wasting disease" due to a lack of sufficient predators for taking out the sick or diseased animals. The urgency of this wildlife review is banging on our door. Habitat protection has been stated by state biologists again and again as essential to arrest the decline of our mule deer populations, which in turn, support so many other parts of the ecosystem. Thank you for your consideration of our concern, Susan Strauss Bend, OR 97703 Angie Powers From: Heidi Supkis <heidi.supkis@gmail.com> Sent; Saturday; January 7, 2023 3:17 PM To: citizeninput Subject: Wildlife Inventory Same people who received this message don't often get email from heidi.supkis@gmail.com. Learn why. this is important [EXTERNAL EMAIL] Happy New Year County Commissioners. 2023 seems like a good year to update 30 year old data pertaining to Wildlife in Deschutes County and to stop "kicking the can down the road". Science based decision making is vital to a healthy community. We humans are co -habitants and share the resources (air, land and water) with many other species in Central Oregon. It is imperative that we have real data numbers which verify concentrations of "critters" so we can minimize conflicts. Growth, development and land use planning must include environmental impact studies if we are to preserve the essence of this place we call home. ,I urge you to take action and to move forward with this long awaited inventory project which impacts us all. Thank you for your attention and service to the community. Respectfully, Heidi Chapman Supkis Angie Powers From: Sent: To: Cc: Subject: Kermit Williams <kermit.donna@gmaiLcom> Saturday, January 7, 2023 4:25 PM citizeninput Kermit and Donna Please move forward on the Wildlife Inventory Update now [Some people who received this message don't often get email from kermit.donna@gmail.com.'Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Deschutes Co. Commissioners Phil Chang, Tony DeBone, and Patti Adair: Just in my relatively short time living in Deschutes Co. (16 yrs. ) I have witnessed extreme changes mainly with development and growth here. Being a volunteer and supporter for multiple wildlife and public lands conservation groups, both local and national, I strongly support expediting the Wildlife Inventory Update for multiple reasons. If we citizens and government entities are to live within our state of Oregon's Goal 5 mandates, then it is mandatory that we make decisions now rather than procrastinating about how we can learn to co -exist with our wildlife, and protect habitat, water resources, and clean air standards within our state. Thirty years is a long enough procrastination. As all of you must now be well aware of, since these statistics have been reviewed byODFW agencies, by wildlife biologists, and by mule deer advocacy nonprofits such as Protect Animal Migration, our mule deer populations are declining at 10% / yr. Now they are at less than 50% sustainability. Habitat Toss is number one reason for decline. Other causes are the "deaths by 1000 cuts ", such as increased vehicular traffic on major highways which have blocked migration corridors, increased disturbance from outdoor recreation ( Mtn. biking, horseback riding, ATV traffic, hiking), free roaming dogs, feeding deer which increases diseases and parasites, and increased development into WUI zones to name a few. All these factors increase fragmentation and disturbance which is not conducive to our wildlife populations' thriving, Residents of Deschutes Co. overwhelmingly support and love our wildlife, citing easily viewing wildlife as an important reason for moving here. Abundant wildlife is the goal and vision for the future of Central Oregon. We are in desperate need of a new baseline, not one that is 30 yrs. old, so that appropriate decisions can be made on how best to save declining habitats for the three species studied here, Please make this happen by allowing no further delay in addressing the Wildlife Inventory Update. Respectfully submitted, Donna Harris, D.V.M. Bend, 0r 97707 Sent from my iPad Angie Powers. From: Sevilla Rhoads <sevillaclaydon@gmail.com> Sent: Sunday, January 8, 2023 6:46 AM To: citizeninpuf Subject:Please use the updated. Wildlife Inventory Some people who received this message don't often get email from sevillaclaydon@gmail,com Learn why this is important [EXTERNAL EMAIL] When you last voted on the issue, I submitted comments in favor of this updated inventory. It was postponed and now you have a chance to proceed. Business and communities depend on a thriving ecosystem in this area. Informed management of our natural resources to restore natural balances is essential to the long-term prospects for all our families and interests in Central Oregon. Sevilla Rhoads. 1 Angie Powers From: Jennie Sharp <jenniewheelersharp@gmail.com> Sent: Sunday, January 8, 2023 9:46 AM To: citizeninput Subject: Wildlife Inventory Update Some. people wha received this message don't often get; email from jenniewheelersharp@gmail.com. Learn why this is'important [EXTERNAL EMAIL] Hello, I am a concerned citizen of neighboring Jefferson County. Since deer and elk do not know the boundaries of county lines, I do believe it is in my interest to urge the Deschutes County Commissioners to not postpone updating the Wildlife Inventory. It has not been updated in over 30 years. This information is critical for the county and landowners to consider in order for wildlife populations in Central Oregon to maintain sustainable populations. Thank you for taking my comments into consideration. Jennie Sharp 13096 Summer Lane Camp Sherman, OR 97730 541-645-0688 Angie Powers From: mailagent@thesoftedge.com on behalf of wvf7@humboldt.edu Sent: Sunday, January 8, 2023 12:04 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from wvf7@humboldt.edu. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, William Fisher 3504 Edgewood Rd EUREKA, CA 95501 1 Angie Powers From: Gail Sabbadini <ggsabba@gmail.com> Sent: Sunday, January 8, 2023 4:34 PM To: citizeninput Subject: Deschutes County Wildlife Inventory Update Some people who received this message don't often get email from ggsabba@gmail,com, Learn why this is important [EXTERNAL EMAIL] I am a retired biologist living in Bend. Please proceed with the wildlife mapping update. Thank you. Gail Sabbadini i Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] Rynda Clark <ryndaclark@gmail.com> Sunday, January 8, 2023 4:38 PM citizeninput Do the wildlife inventory!! Please do the wildlife inventory for Deschutes county now. Postponing this will continue to put dwindling numbers of mule deer at a disadvantage when calculating the impact of land. uses on this population, which has declined over 50 % since 2002. Rynda Clark 760.445 8653 (mobile) Central Oregon Bitterbrush Broads Great Old Broads for Wilderness Lynda Paznokas <Ipaz@bendnet.com> Sunday, January 8, 2023 4:48 PM citizeninput Vote YES on updating maps of wildlife movement of mule deer and eagles. Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] Please vote YES January 11 to update maps showing wildlife movement of mule deer and eagles. The information on wildlife that is used now is 30 years old. Postponing this will continue to put dwindling numbers of mule deer at a disadvantage when calculating the impact of land uses on this population, which has declined over 50 % since 2002. Thank you. Lynda Paznokas Lynda Paznokas 852 NW Fort Clatsop Street Bend, Oregon 97703-6699 Ipaz@bendnet.com Home phone: 541-317-4658 1 Angie Powers From: Cynde Magidson <cynde.magidson@gmail.com> Sent: Sunday, January 8, 2023 5:04 PM To: citizeninput Cc: Cynde Magidson; Steve Magidson Subject: Wildlife inventory please procede Some people who received this message don't often get email from cynde.magidson@gmaii.com Learn why this is important [EXTERNAL EMAIL] Please vote to proceed with the project to updates the wildlife maps. The mule deer are so important to our local economy and are seriously at risk. We need to work from updated information or we risk making the wrong choices: Please vote to update the maps. Cynde Magidson, Bend, Or (541) 504-6263. i Angie Powers From: Sent: To: Subject: tom <tom@bishoptrust.com>`. Sunday, January 8, 2023 5:24 PM citizeninput Proceed Some people who received this message don't [EXTERNAL EMAIL] often get email from torn@bishoptrust.com. Learn why this is important Proceed to update and expand areas designated to be protected habit for mule deer and areas to be protected for eagles. Thomas Bishop Temalo area near Bend, Oregon Sent from my Galaxy 1 Angie Powers From: Keith Hadley <abiesprocera@hotmail.com> Sent: Sunday, January 8, 2023 7:05 PM To: citizeninput Subject: Wildlife Inventory Comments to Deschutes County Commissioners Some people who received this message don't often get email from abiesprocera@hotmail.com, Learn why this is important; [EXTERNAL EMAIL] Deschutes County Commission RE: Deschutes County Wildlife Inventory Dear Commission: Neither wildlife nor agriculture can withstand the fragmentation of large rural areas. The consequences of habitat and areal fragmentation is clearly documented in hundreds of scientific, peer -reviewed research articles. Consequently, both wildlife populations and agriculture productivity will require forward -thinking, sustainable management consistent with spatial and environmental requirements, Noted in a previous Deschutes County survey, the results showed that 90% of participating individuals supported a wildlife inventory process, Why? Most simply, the demographics of mule deer in Central Oregon managed by the Oregon Department of Fish and Wildlife revealed a population decline of 33% since 2017. The more distant rearview showed the regional population of mule deer had fallen by 51% compared to 2002 population estimates. Wildlife declines such as those noted above are not "accidental." These types of decreases are predictable for many reasons confounded by our lack of comprehensive, accurate and ongoing inventories. As a reminder, one merely needs to review a few of the seemingly endless research studies reporting local to global wildlife population declines, endangerments, and extinctions. It would seem apparent that the repercussions of demographic declines -- the strongest indication of forthcoming extinctions-- are dire warnings regardless of one's beliefs. Yet, the politicized choice proposed by two Deschutes County Commissioners is to stall or eliminate wildlife surveys despite the strong support by local citizens and statewide agencies. Why the divergent views? On factor would appear to be the less surprising coincidental and inverse correlations between large species wildlife declines and Deschutes County's human population growth, housing, and property fragmentation trends. But how can Commission ignore that basic reality? Increasing market values, contrary to most people's desires and beliefs, are hypothetical constructs that have not and cannot be shown as demonstrably sustainable over multiple generations for the majority of citizens. The two Deschutes County Commission Members seeking to disarm or dissipate ongoing wildlife inventories are, in my opinion, the manifestation of a distorted political stance to what it means to be a community. No community is benefited by the decline and extinction of wildlife populations. Moreover, lacking Deschutes County Commission full support for the wildlife inventory process is a shallow display of disrespect toward the work of professional wildlife managers, academics and educators, and most importantly, the majority of Deschutes County citizens. Keith Hadley PhD 2 Angie Powers From: Paul Lipscomb <judgelipscomb@gmail.com> Sent: Sunday, January 8, 2023 7:11 PM To: citizeninput Subject: Please Update wildlife maps ASAP [EXTERNAL EMAIL] Choosing not to update wildlife maps with current data would be actively choosing to remain willfully ignorant of the actual facts on the ground. Please do not delay the wildlife update! Paul Lipscomb, Sisters, Oregon. 1 Angie Powers From: Sent: To: Subject:. Claire Weiser <claire.weiser@gmail.com> Sunday, January 8, 2023 7:15 PM citizeninput Wildlife Count Some people who received this message don't often get email from claire.weiser@gmail.com. Learn why this is important [EXTERNAL EMAIL] Please vote YES for proceeding on this project of updating maps showing wildlife movement of mule deer and eagles Wednesday, Jan. 11. Why wouldn't you want to know for informed planning?? Thank you, Claire Weiser Bend Angie Powers From: Eva Eagle <eva.eagle@me.com> Sent: Sunday, January 8, 2023 7:19 PM To: citizeninput Subject: Wildlife Uodate [Some people who received this message don't often get email from eva.eagle@me.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] I am shocked to see that anybody would oppose an update of the County's wildlife inventory. It is crucial that the inventory reflect what we know now and not ancient history. Update the wildlife inventory now. Eva 1 From: Marina Richie <marinarichiel @gmail.com> Sent: Sunday, January 8, 2023 7:56 PM To: citizeninput Subject: Proceed! Save our mule deer Some people who received this message don't often get email from marinarichiel @gmail.com. learn why this is important [EXTERNAL EMAIL] We cannot afford to wait any longer as mule deer numbers dwindle along with their habitat. We must have this inventory update of the maps. Wildlife is not a partisan issue --and it's what makes Bend the place people want to come to live. Proceed with the Deschutes County Wildlife Inventory Update. Thanks, Marina Richie Marina Richie (she/her) Author: Halcyon Journey: In Search of the Belted Kinjifisher 2022 National Outdoor Book Award www.marinarichie.com marinarichie I (Instagram) Angie Powers From: Stephen Greenberg <stephengbiker@gmail.com> Sent Sunday, January 8, 2023 7:57 PM To: citizeninput Subject: Wildlife maps update Some people who received this message don't often get email from stephengbiker@gmaiLcom. Learn whythis is important [EXTERNAL EMAIL] DO IT PLEASE! " " i 1 Lorell Girard <lorell.girard@gmail.com> Sunday, January 8, 2023 9:38 PM citizeninput Wildlife Inventory [Some people who received this message don't often get email from lorell.girard@gmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Please PROCEED with the Wildlife Inventory Update! Regards, Lorell Girard 3148 Quiet River Ln Bend, Oregon 1 I'uuu LAKE CREEInromors From: Gordon Jones <gordoncjones@gmail.com> Sent: Sunday, January 8, 2023 9:55 PM To: citizeninput Subject Goal 5 Attachments: 2023 - Deschutes County Commissioners RE Goal 5 inventory and evaluation.docx Some people who 'received this ssage en medon't oftget email from gordoncjones@gmail.com Learn why this `is important [EXTERNAL EMAIL] Dear. Commissioners: Please accept the following testimony on Goal 5 Inventory and Evaluation. Kind Regards, Gordon C. Jones Virus-free.www.avast.com 1 January 4, 2023 Deschutes County Commission PO Box 6005 117 NW Lafayette Ave. Bend, OR 97708 RE: Oregon's Statewide Planning Goals & Guidelines GOAL 5: NATURAL RESOURCES, SCENIC AND HISTORIC AREAS, AND OPEN SPACES Dear Commissioners, Adair, Chang, and DeBone, For the record, I am Gordon Jones, owner of Lake Creek Lodge in Camp Sherman, Jefferson County: Please consider my testimony regarding the importance of completion of the Goal 5 updates to the wildlife inventory maps for Deschutes County You have an obligation under goal 5 to inventory and evaluate the following in paragraphs 4, 5 and 6: 4. Fish and wildlife areas and habitats should be protected and managed in accordance with the Oregon Wildlife Commission's fish and wildlife management plans. 5. Stream flow and water levels should be protected and managed at a level adequate for fish, wildlife, pollution abatement, recreation, aesthetics and agriculture. 6. Significant natural areas that are historically, ecologically or scientifically unique, outstanding or important, including those identified by the State Natural Area Preserves Advisory Committee, should be inventoried and evaluated. Plans should provide for the preservation of natural areas consistent with an inventory of scientific, educational, ecological, and recreational needs for significant natural areas. While it is true that we have seen a significant reduction in mule deer herds in recent years due to development, habitat loss and increased traffic, inventorying those herd reductions alone may not provide sound scientific data for changes to development codes or sound land use analysis. Elk and eagles are also very visible and important species that have a high importance and profile for hunters and environmentally concerned citizens, and they too need to be inventoried and evaluated. But it is much more scientific and far less expensive to inventory and evaluate the beaver population and the capacity to increase beavers to re -engineer our streams and create hydrologically connected ecosystems that will support a variety of species: We are also experiencing increased drought, declining water tables, and more frequent wildfires, at least partially as a result of climate change and a warming of the planet. The question is, what is the best and most scientifically accurate species to inventory and evaluate to provide usable and actionable results I submit that the most useful species is the beaver. Oregon is the beaver state, and it is our state mammal. Beavers slow down streams, allowing water to soak into the soil so that plants can access it, even during a drought. Instead of a fast-moving disconnected waterway, closed in with brush and dense trees carrying runoff through a valley, beavers create a series of ponds, wetlands and open meadows that contain runoff and allow it to slowly find its way downstream through a connected wetland ecosystem, preventing floods, cleaning the water, lowering nitrogen and dissolved oxygen, and providing wildfire protection. That is why beavers are known as a "keystone species And it is why they were re -introduced into Yellowstone National Park along with wolves, to demonstrate that all species depend on the environment that beavers engineer and create. The elk, deer and eagles will thrive in the environment that beavers create, as well as ducks, herons, frogs, fish, insects and birds. There are technologies and methodologies available to help with this inventory, such as Beaver Restoration Assessment Tool (BRAT) developed at Utah State University. encourage you to read and consider the following 2022 report: "Economic Benefits of Beaver -Created and Maintained Habitat and Resulting Ecosystem Services" (https`.//www.oregonlegislature.gov/marsh/Documents/EconBenefitsBeaver.pdf). It is a well -researched and powerful report, and it is unfortunate that Oregon Fish and Wildlife Commission, "...denied the Petitioners request to initiate rule making despite economic and ecological benefits." Thank you for considering the inclusion of the Goal 5 paragraphs 4 — fish and wildlife areas and habitats, 5 — streamflow and water levels, and 6 — natural areas, that are required to be Inventoried and evaluated for updates into the Planning Department FY 22-23 work plan. Best Regards, Gordon C. Jones Angie Powers From: Craig Lacy<lacycraig@gmail.com> Sent: Monday, January 9, 2023 6:49 AM To: citizeninpuf Subject: Wildlife Inventory Update Some people who received this message don't often get email from lacycraig@gmail.com. Learn why this is. important [EXTERNAL EMAIL] The County (and it's residents) should know what impacts development is having on wildlife. I have lived here for almost 40 years and have seen huge impacts on migration patterns and populations of mule deer and elk. I encourage you to get current information on wildlife status and consider that when making development decisions. thanks for your consideration, Craig Lacy Angie Powers From: Gisela Ryter <giselavest@icloud.com> Sent: Monday, January 9, 2023 7:48 AM To: citizeninput Subject: Wildlife Inventory [Some people who received this message don't often get email from giselavest@icloud.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] I urge you to vote 'Yes' on conducting the wildlife inventory. The last one was done 30 years ago. The Bend population has since exploded, which has seriously fragmented wildlife habitat and decimated their numbers. Please vote YES, so we can get a clearer picture of the damage that has been done and take steps to limit further huge wildlife losses . Gisela Ryter Bend Sent from my iPhone 1 From: Sent: To; Cc: Subject: Wolf Welcome Committee <wolfwelcomecommittee@gmail.com> Monday, January 9, 2023 7:53 AM citizeninput Susan Prince. Vote yes to Update Deschutes County Wildlife Inventory Some people who received this message don't often get email from wolfwelcomecommittee@gmailcom. Learn why this is important [EXTERNAL EMAIL] To: Deschutes County Commissioners As we all know, wolves are inextricably linked to their wild habitats. What happens to the wildlife in Central Oregon affects all parts of that system. This is just one reason why it's so important that the Deschutes County Wildlife Inventory be updated to reflect current data on elk, eagles and mule deer: Please do not to postpone this very important Update -again. (As we all know, the last inventory update was 30 years ago!) We implore all County Commissioners to Vote Yes to support the Wildlife Inventory Update and allow it to go forward now. Thank you, Susan Prince Wolf Welcome Committee Sisters, Oregon We envision a time, in the near future, when wolves will be recovered in Central Oregon: Our goal is to encourage a climate of peaceful coexistence, where wolves are welcomed by their human neighbors. Angie Powers To: Subject: Do Not Reply; citizeninput RE: Mitel voice message from FLEISCHMANN , M, +15413188789 for mailbox 1734 Transcribed Citizen Input Voicemail Message: Hi, my name is Mary Fleishmann, 61503 Camelot Place, Bend. I hope that the Commissioners will continue with this. Um, I've lived here over 34 years and what I'm seeing, um, the dismay, and what's going on with migration patterns. Not only the mule deer, um, but other habitat. This needs to stay on the radar. We need to keep this updated. Especially with all the development that is happening, and specifically areas that have migration patterns, which is where I live. I'm seeing that where I live, and I'm aware of it. A lot of people aren't, because they are new to the area. So please, please, please continue to look at that Wildlife Inventory and keep it updated and utilize that and as we go further with development and planning and road work and everything else. Thank you again. Mary Fleishmann 61503 Camelot Place, Bend, Oregon. 541-318-8789. Thank you. Original Message From: Do Not Reply <DoNotReply@deschutes.org> Sent: Sunday, January 8, 2023 5:49 PM To: citizeninput <citizeninput@deschutes.org> Subject: Mitel voice message from FLEISCHMANN , M, +15413188789 for mailbox 1734 You have received a voice mail message from FLEISCHMANN , M, +15413188789 for mailbox 1734. Message length is 00:01:21. Message size is 639 KB. 1 Angie Powers From: LeeAnn Kriegh <krieghl@gmail.com> Sent: Monday, January 9, 2023 9:21 AM To: citizeninput Subject I support wildlife inventory update Some people who received this message don't often get email from krieghl@grnail.com. Learn why this is important [EXTERNAL EMAIL] Commissioners, I'm a Bend homeowner writing in support of updating the wildlife inventory maps. Land use decisions should not be based on information that is 30 years old. We need to make smart, sustainable land use decisions, which is only possible with updated information. This is a vote for transparency. Thank you, LeeAnn Kriegh LeeAnn Kriegh (she/her) Author of The Nature of Bend and The Nature of Portland www.NatureOfBooks.com 503.381.3542 (cell) 1 Angie Powers To: Subject: Do Not Reply; citizeninput RE: Mitel voice message from BURTON DARBY C, +15413827449 for mailbox 1734 Transcribed Citizen Input Voicemail received 1/9/2023 at 9:50 a.m.: Good morning, my name is Darby Burton. I live at 60255 Woodside Road, Bend, Oregon, and I am calling in regards to the Deschutes County Wildlife Inventory Update, which I feel is very important, timely and needed after so many years. I vote to proceed with this update in order that [clears throat], excuse me, to affect, uh, land use decisions at this time. [clears throat] Excuse me, this morning it is early. Before we have missed that opportunity. Once virgin land is gone, it cannot be replaced. And so I feel at this time, we need to proceed. Thank you. Original Message From: Do Not Reply <DoNotReply@deschutes:org> Sent: Monday, January 9, 2023 9:50 AM To: citizeninput <citizeninput@deschutes.org> Subject: Mitel voice message from BURTON DARBY C, +15413827449 for mailbox 1734 You have received a voice mail message from BURTON DARBY C, +15413827449 for mailbox 1734. Message length is 00:01:04. Message size is 500 KB. 1 Angie Powers From: Peter Fox <foxespeter@gmail.com> Sent: Monday, January 9, 2023 9:57 AM To: citizeninput Subject; I support updating the inventories for mule deer and eagles habitats. Some people who received this message don't often get email from foxespeter@gmail.com. Learn why this is, important [EXTERNAL EMAIL] I urge you to proceed with updating the inventories for mule deer and eagles habitats. Peter Fox 1340 NW Constellation Drive Bend, OR 97703 Angie Powers From: Gayle LaHusen <gaylelah50@gmail.com> Sent: Monday, January 9, 2023 10:07 AM To: citizeninput Some people who received this message don't often get email from gaylelah50@gmail.com. Learn why this is important [EXTERNAL EMAIL] Please proceed now with the Wildlife Inventory Update Thank you Gayle LaHusen i Angie Powers From: Linda Axelson <gentleelkl @bendbroadband.com> Sent: Monday, January 9, 2023 10:32 AM To: citizeninput Subject: Please proceed [Some people who received this message don't often get email from gentleelkl@bendbroadband.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification [EXTERNAL EMAIL] We support proceeding to inventory wildlife. Linda Axelsen Sent from my iPhone t Angie Powers From: Sent: To: Subject: Gail Snyder <aussiegail@gmail.com> Monday, January 9, 2023 11:49 AM citizeninput Deschutes County Wildlife Inventory Update Some people who received this message don't often get email from aussiegail@gmaiLcom. Learn why this is important [EXTERNAL EMAIL] To the Deschutes County Commissioners, I respectfully request that you vote yes to conduct an updated wildlife inventory. The information on wildlife that is used now is 30 years old. Postponing this inventory will continue to put mule deer and other wildlife at a distinct disadvantage when calculating the impact of land uses. The mule deer population has declined over 50 % since 2002. Please do not let them decline any further on your watch. Thank you, Gail Snyder 503-961-4528 Angie Powers From: Mark Sture <akmark.sture@gmail.com> Sent: Monday, January 9, 2023 12:37 PM To: citizeninput Subject: Wildlife survey [Some people who received this message don't often get email from akmark.sture@gmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification [EXTERNAL EMAIL] I am in favor of the county going forward in the wildlife survey to track their migration locations, Thanx, Mark Sture Sent from my iPhone i Angie Powers From: Su. Libby <bigwiscon@gmail.com> Sent Monday, January 9, 2023 12:46 PM To: citizeninput Subject: Input into Wildlife Planning Some people who received this message don't often get email from bigwiscon@gmail.com. Learn why this is important [EXTERNAL EMAIL] As a member of the Wolf Welcome. Committee, and the Great Old Broads for Wilderness. Wildlife Interest Group, we are very invested in updating any and all Wildlife Conservation planning and mapping. In particular we are extremely concerned about the lack of updated planning for our remaining apex predators. In addition, of the three options available, we would like to see Option One chosen; the Mule Deer Inventory process becoming the "pilot project", thus becoming the agreed upon model for the other two. We chose mule deer for the simple reason reflected in the rapid downward trending of population, and no notable declines in elk and or Sensitive Bird Habitat proportionally. With ESA listings federally, we see ample protections for the Sensitive Bird Habitat inventory group, and the mule deer inventory can effectively become the future blueprint application for inventories, numbers two and three. Sincerely Su Libby Eugene Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] scott asla <scott.aslal@gmail.com> Monday, January 9, 2023 1:54 PM citizeninput Wildlife meeting Please postpone your decision or cancel it and completely start over. Thank You Scott Asia f Sunriver Oregon 97707 Sent from Mail for Windows inctkce-s-f- 1/+ c.P 1514 [- 6-23. 1 Angie Powers From: judith villa <bonitavilla@gmail.com> Sent: Monday, January 9, 2023 2:36 PM To: citizeninput Subject Proceed! [Some people who received this message don't often get email from bonitavilla@gmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification] [EXTERNAL EMAIL] To the Deschutes County Commissioners, I respectfully request that you proceed with the vote and vote yes to conduct an updated wildlife inventory. Judith Villa Sisters, OR Sent from my iPhone Angie Powers From: Janet Navarra <sjrc@msn.com> Sent Monday, January 9, 2023 4:07 PM To: citizeninput Subject: Wildlife Inventory [EXTERNAL EMAIL] Please proceed with a new inventory. Thank you Sent from my iPhone Angie Powers From: mailagent@thesoftedge.com on behalf of Philip Henderson <mailagent@thesoftedge.com> Sent Monday, January 9, 2023 5:08 PM To: citizeninput Subject We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely,. Philip Henderson 1436 SW Forest Ave Redmond, OR 97756-2628 1 Angie Powers. From: Sent: To: Subject: [EXTERNAL EMAIL] mailagent@thesoftedge.com on behalf of Todd Dunkirk <mailagent@thesoftedge.com> Monday, January 9, 2023 5:12 PM citizeninput We Need Updated Wildlife Inventory Maps Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county: Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Todd Dunkirk 2055 SE Pecos Dr Madras, OR 97741 1 Angie Powers From: mailagent@thesoftedge.com on behalf of. Chase Duncan <mailagent@thesoftedge.com> Sent: Monday, January 9, 2023 5:24 PM To: citizeninput Subject: We. Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Chase Duncan 3110 SW 47th St Redmond, OR 97756 Angie Powers From: mailagent@thesoftedge.com on behalf of Marshall Cooley <mailagent@thesoftedge:com> Sent Monday, January 9, 2023 6:02 PM To; citizeninput Subject We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear. Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Marshall Cooley 1440 NE Revere Ave. Bend , OR 97701 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Jon Harrang <mailagent@thesoftedge.com> Sent Monday, January 9, 2023 6:32 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps. [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county: Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Jon Harrang 4554 NE 40th Street Redmond, OR 97756 1 Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] mailagent@thesoftedge.com on behalf of Brian Hudspeth <mailagent@thesoftedge.com> Monday, January 9, 2023 6:40 PM citizeninput We Need. Updated Wildlife Inventory Maps Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Brian Hudspeth 7485 SW Joshua Ct Powell Butte, OR 97753 Angie Powers From: Sent: To: Subject: Lloyd Clark <Ilyd_clrk@yahoo.com> Monday, January 9, 2023 7:39 PM citizeninput Wildlife migration issues Some people who received this message don't o [EXTERNAL EMAIL] en get email from llyd_clrk@yahoo.com. Learn why this is importan In the 3 rivers area we are getting alot of deer hit on the roads due to lack of warning signs and illegal fences that force the deer onto the roads The county needs to enforce the rules on the books. Lloyd Clark Sent from Yahoo Mail on Android 1 Angie Powers From: Sent: To: Subject: Linda Wallon <lindacwallon@gmail.com> Monday, January 9, 2023 7:47 PM citizeninput Wildlife Inventories [Some people who received this message don't often get email from lindacwallon@gmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ]. [EXTERNAL EMAIL] It is critical to update the wildlife inventories so that decisions are made based on recent knowledge and trends. Linda Wallon Haynes 2483 NW Crossing Dr Bend, OR 97703 Angie Powers From: mailagent@thesoftedge,com on behalf of Charles Edington <mailagent@thesoftedge.com> Sent: Monday, January 9, 2023 8:16 PM To: citizeninput Subject We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes: We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Charles Edington 64825 Saros In Bend, OR 97703 1 Angie Powers From: Sandra Lassen <sanlass@msn.com> Sent Monday, January 9, 2023 8:26 PM To: citizeninput Subject Deer and Elk Study ome people who received this message don't often get email from sanlass@msn.corn. Learn why this is important [EXTERNAL EMAIL] I understand the commission will be voting on proceeding with a study of the deer and elk migration routes in Deschutes County. The last study was done several decades ago, This is irresponsible and one wonders why it has taken so long to bring this to inception. Our lovely area is experiencing unprecedented growth of resort and recreational housing. This brings the traffic and business growth along with it. The impact on wildlife has been severe. Where once we regularly saw deer, elk and other wildlife in our area, it has all but disappeared, with occasional sightings. Let's do a serious study to determine what the impact of this unregulated growth has had on our existing residents...the wildlife: We totally support moving forward with this. Sandra and Craig Lassen Three Rivers Sent from Mail for Windows 1 Scott Bowler <scott.r.bowler@icloud.com> Monday, January 9, 2023 8:35 PM citizeninput Wildlife inventory —do it now! [Some people who received this message don't often get email from scott.r.bowler@icloud.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification,) Hey Comissioners, you've been putting this vital project off for far too long! Mule Deer, Eagles bald and golden, and Elk need to have populations counted and useage areas inventoried. WAY too many developments continue to destroy and fragment habitat, and Mule Deer populations and many fish strains appear to be in free fall. Wildlife need homes too you know -and CO sure does NOT need more destination resorts, golf courses, and huge vacation homes ruining agricultural and wild lands. Water tables are dropping fast, due to over use from the 3000+ private wells, plus the irrigators, and cities use more every year. This means that too many water sources are drying up —to the detriment of wildlife and fish and the landscapes and streams that sustain them. ENOUGH! Time to get busy and count the critters! Then it's time to have preserve, even enhance, balance between farm and fauna, cities and critters. Get the job done —we elected you for balanced resource management, not catering to big money development interests. Thanks, Scott R Bowler_ 205 W Heising Dr Sisiters, OR 97759 971-275-6608 Sent from Scott B's overworked and misunderstood iPad 1 Angie Powers From: Amber Owen <anewdawn848@gmail.com> Sent Monday, January 9, 2023 9:34 PM To: citizeninput Some people who received this message don't often get email from anewdawn848@gmail.com. Learn why this is important [EXTERNAL EMAIL] Please proceed with reporting the deer and elk etc. Migration on our lands in our maps. This sounds like a very important safety hazard for both our wildlife and the people driving on our roads. Thank you! Angie Powers From: mailagent@thesoftedge.com on behalf of B3007@hotmail.com Sent: Monday, January 9, 2023 9:50 PM To citizeninput Subject We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from b3007@hotmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Orlando Baza 20020 Chaney Rd Bend, OR 97703 Angie Powers From: Rynie Miyashiro <bounderific@yahoo.com> Sent Monday, January 9, 2023 10:37 PM To: citizeninput Subject: Deschutes County Wildlife Inventory Update Some people who received this message don't often get email from bounderific@yahoo com. Learn why this is. important [EXTERNAL EMAIL] RE: Deschutes County Wildlife Inventory Update - ArcGIS StoryMaps The Wildlife Inventory update is way past due. Please proceed with the update. Thank you. L. Miyashiro 54326 Bear Dr. Bend, OR 97707 Angie Powers From: Sent: To: Subject: Some people who received this [EXTERNAL EMAIL] Randy Davis <rtraverdavis@gmail.com> Monday, January 9, 2023 11:30 PM citizeninput Goal 5 Updates on Wildlife Inventory Maps essage do often get email from rtraverdavis@gmailcom. Learn why this is important Dear, Commissioners Chang, Adair, and Debone, I am writing to ask that you include the completion of the Goal 5 updates to the wildlife inventory maps into the. 2023 work plan for county planners. As you know, the current inventory maps are 30 years old and the landscape in Deschutes County has changed drastically in that span of time. Wildlife, particularly mule deer in. Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and I urge you to follow through on the Goal 5 updates. One particular area of concern that I have for wildlife in our county is the rezoning of agricultural land to business or residential use. Developers can buy agricultural land at cheaper rates than land zoned for residential or business use, then lobby to have it rezoned —a gamble that can drastically increase profits should they succeed in development. This just occurred near my home in Terrebonne, in which the commission voted to rezone over 700 acres of land formerly zoned for agricultural to residential, and as a consequence 700 new acres of historical mule deer winter range will be developed for housing. I believe completing the Goal 5 updates will ameliorate many future conflicts of a similar nature. Healthy populations of wildlife are a tremendous part of what makes Deschutes County special. Without carefully planned development, especially in sensitive winter range areas, wildlife will continue to diminish until all specialness is gone and we are just another busy, crowded maze, vacant of the former wildness like so many other places in our country. Thank you for your consideration. Respectfully, Randy Davis Terrebonne, OR i Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] mailagent@thesoftedge.com on behalf of Tony Monaco <mailagent@thesoftedge.com> Tuesday, January 10, 2023 6:38 AM citizeninpu$ We Need Updated Wildlife Inventory Maps Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Tony Monaco 53241 Woodstock Dr La Pine, OR 97739 Angie Powers From: Tammy Harty <tammyharty@msn.com> Sent: Monday, January 9, 2023 11:01 PM To: Tony DeBone; Patti Adair; Phil Chang; citizeninput Subject Public comments -Meeting 1-11-2023 Attachments: Public Comment Meeting Action 1-11-2023 Action Item 9 Work plan.pdf; Public comment Agenda item 8 - 1-11-2022 Meeting.pdf. [EXTERNAL EMAIL] Please see attached public comment on agenda items 8 and 9 for the meeting on 1-11-2023 Thanks for your consideration !! Tammy Harty 541-815-0203 tammyharty@msn.com January 9, 2013 Public comment regarding Action Item 9. Public Hearing: Planning Division Long Range Work Plan for FY 2022-2023 Dear County Commissioners, I understand that you are considering whether or not to add Wildlife Inventory Update to the current work plan. I believe that the inventory should NOT be updated. It is my belief that the current wildlife area is adequate and in fact, occupies over 80% of the county's land mass. I believe that is more than enough space for wildlife protection and should not be expanded. It would be a waste of County resources so spend time on this item. The staff expense and time is better spent on other issues and priorities. The current wildlife overlay zone is already overly restrictive to the land it covers and prohibits reasonable development of privately held land zoned for residential development, agricultural uses and human occupancy. I believe it also restricts agricultural uses and should not be expanded any further. I live in the rural area of Tumalo and I observe the wildlife migrating and moving about this land with ease and are not bothered or hampered by the homes, farm buildings, people, livestock, traffic and farming activities. We have deer and Elk herds that migrate through this residential / agricultural land on a regular basis and with ease. I have lived in rural Central Oregon for over 25 years. I have served on the County planning commission as well as worked for conservation agencies and natural resource agencies and natural resource non- profits and served on agricultural & BLM committees. With all of that diverse experience, I see NO need to waste time and money updating the wildlife inventory when there is no issue here. I think that 80% of the county's land that is public land and is held as open space land is more than adequate for wildlife to live and migrate. Please do not add the wildlife inventory to the work plan. Thanks for your consideration. Sincerely, TcuTMn,j, lea/tna, Tammy Harty Tumalo area resident and landowner Angie Powers From: mailagent@thesoftedge.com on behalf of Mike O'Casey <mailagent@thesoftedge.com> Sent: Tuesday, January 10, 2023 7:46 AM To: citizeninput Subject We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Mike O'Casey 70633 Holmes road Sisters, OR 97759 Angie Powers From: Sent: To: Subject: Jill Houle <bigearsandcrescents@gmail.com> Tuesday, January 10, 2023 8.05 AM citizeninput Wildlife Inventory dome people who received this message don't often get email from bigearsandcrescents@gmall.com. Learn why this is important [EXTERNAL EMAIL] Good morning I would like to see you promptly proceed with the wildlife inventory project as I have visibly noticed a large decrease in the local mule deer population. In just the last few years this decline has been significant and appears to correlate with the influx of building in our area. As they no longer have a safe space to stay, there are MANY more deaths on the roads and they are constantly on the move. I've lived in this area since 1979 and the change from then to now has been drastic. Please - take the time to review the negative impacts all of this building has had on our local deer and elk population and place it into consideration. Meanwhile, yet another large extension of Sunriver is actively being built along with the never ending flow of new homes in my neighborhood. We need to co -exist with all creatures great and small - they are a large part of why we live in the outskirts of Bend vs a concrete jungle. I fear that one day they will simply stop returning. Thank you. Jill Houle DRRH Angie Powers From: John Crafton <jlcrafton@hotmail.com> Sent: Tuesday, January 10, 2023 8:15 AM To: citizeninput Subject: Goal 5 Inventory Update Some people who received this message don't often get email from jicrafton@hotmaiLcom. Learn [EXTERNAL EMAIL] Deschutes County Commissioners, After using public grant dollars for Deschutes County, I wish to encourage you to complete a new Goal 5 Wildlife Inventory update to reflect the current Deschutes County. Deschutes County has grown exponentially in the 30+ years of last inventory. Development and recreation pressures have applied enormous strain to wintering wildlife within Deschutes County with tremendously more human/wildlife conflicts. Wildlife is highly valued within Deschutes County so it is essential that Commissioners use the most current information to make their tough decisions for the County. Outdoor recreation and hunters in 2019 spent over $21 million, contributing nearly $11 million in wages and nearly $1.3 million in State and local taxes in Deschutes County. Please update your County plan immediately as bald eagles, elk and mule deer need your attention using current, factual information. Sincerely, John Crafton jlcrafton@hotmail.com PO Box 267 Redmond, OR 97756 541-233-3740 Angie Powers From: Sent: To: Subject: Attachments: Seth Reed <seth@muledeer.org> Tuesday, January 10, 2023 7:53 AM citizeninput Long Range Work Plan FY 2022-2023 Public Comment Deschutes County Public Comment_Jan 10_MDF.pdf Some people who received this message don't often get email [EXTERNAL EMAIL] Good Morning, om seth@muledeer.org. Learn why this is important Please see the attached letter for public comment regarding the Long Range Work Plan FY 2022-2023 and the implementation of Goal 5 in that plan. Thank you for the opportunity to comment and participate. Regards, Seth Reed Regional Director — Idaho, E. Oregon Mule Deer Foundation 208-589-5304 seth@muledeer.org /MIL J LI L t FDUN/'A TION January 10, 2023 Deschutes County Commission PO Box 6005 117 NW Lafayette Ave. Bend, OR 97708 Dear Commissioners, Adair, Chang, and DeBone, My name is Seth Reed, and 1 am the Regional Director for the Mule Deer Foundation in Eastern Oregon. The mission of the Mule Deer Foundation is to ensure the conservation of mule deer, black -tailed deer, and their habitat. Mule Deer have been one of the few big game species in the west that have been struggling and not growing in populationsin recent years. Some of the main contributing factors include, urban sprawl, disturbance and development of winter range, and disruption of essential migration corridors. I would like to express my support for the Goal 5 Wildlife Inventory project and encourage its implementation with a Mule Deer Inventory process as the pilot. Understanding the land usage of mule deer in the area will benefit the local herds and other wildlife that utilize the area for important habitat. By implementing Goal 5 in the Long Range Planning Work Plan for FY 2022-23 you will take an important step in ensuring the future of mule deer and their positive impact on your community. I believe that a firm understanding of how wildlife uses the habitat and planning to preserve that habitat is the only way to keep the western lifestyle many of us cherish. Inventory maps and study of land usage and migration corridors is important to the continued success of mule deer and should be considered a required step in moving forward with your planning. Thank you for your time and consideration of this request. I am happy to add to any future public comments and would be willing to participate further in important discussions and planning that will ensure the conservation of mule deer and their habitat throughout your region. Respectfully, Seth Reed Regional Director, Idaho & Eastern Oregon Mule Deer Foundation 208-589-5304 seth@muledeer.org Angie Powers From: Sent: To: Subject: Suzanne Linford <linfordsuzanne@gmail.com> Tuesday, January 10, 2023 8:40 AM citizeninput Wildlife Inventory Update Some people who received this message don often get email from linfordsuzanne@gmail.com,!Learn whythisis important [EXTERNAL EMAIL] To: Deschutes County Commissioners, The Wildlife Inventory Update has to be done not only for deer and eagles and very needed protections for them, but for some other equally urgent reasons. These include the following but are not an all inclusive list: 1. There is not only a critical need to extend protections for mule deer, and you have heard many of them from surveys and other speakers, there is a need to establish a process for making these decisions that is equitable and fair to all stakeholders. 2. The work of a consultant in producing the public report is very thorough. The work of the task force of public agencies was very thorough. But neither addressed the fear and lack of trust by land owners who will be affected by an expansion of migratory corridors that accurately update the inventories established in 1990. But you know that from many responses from the public already. 3. If we are to move forward in discussing this, and this proposal is a proposal, and one that will have public input, then some assurances need to be given to those who fear they are once again giving up something and only gaining increased regulations in return. 4. To be clear, I am an advocate for this update, and an advocate for wildlife through fact based biology and outreach to the public interpreting these facts. But as important, I've learned to listen to other points of view and to see that just understanding, if not agreeing with them is key to any agreements that include those points of view. 5. I've also learned of the wealth of talent that exists in this community in mediation based solutions. This talent would be volunteered, just as I am a volunteer in wildlife advocacy. 6. I propose that in agreeing to proceeding on this issue, that focus groups led by community members who agree to a civil and orderly process be put in front of the county required public process. We have organizations capable of doing this. The Neighborhood Leadershlip Alliance, Hunters from organizations who have come repeatedly to speak on this. They include the Theordore Roosevelt Partners (a nation wide conservation group), the Great Old Broads for the Wilderness, the Tumalo Irrigation district leaders, and many others. These are only my own suggestions of community leaders who represent constituents on both sides of this issue and who could diffuse the anger that is currently so disruptive of public meetings today. Other organizations are doing this in collaboration with ranchers and other stakeholders to build land stewardship in ways that are acceptable. The Western Landowners Alliance if one of these. Montana State University Extension is another one. They have excellent webinars and podcasts called "Working Wild U." i What incentives are being offered elsewhere for those who would be impacted by this ? Can we have a productive process and avoid the expensive litigation that often occurs over disagreements on land use ? Can we, broaden this issue to be one of land stewardship ? These are but a few suggestions. Please vote to proceed and then have stakeholders led by community members begin small focus groups (less than 12) to begin a discovery process of what would work in Deschutes County. Thank you for your attention to this. Suzanne Linford, Co founder of Protect. Animal Migration and Movement and interpreter in public outreach on wildlife issues. Resident of 15 years in the county, Interpreter in wildlife of 13 years at the High Desert Museum, and partnered with wildlife biologists from ODOT, ODFW and the Deschutes National Forest. As a non profit, Ido not speak for any of these organizations. 2 Angie Powers From: Connie C <isukwsh@gmail.com> Sent: Tuesday, January 10, 2023 8:42 AM To: citizeninput Subject: Wildlife migration map update [Some people who received this message don't often get email from isukwsh@gmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] Please proceed do not postpone. It is extremely important especially here in south county. Thank you. -Connie Condron 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Dan Rollins <mailagent@thesoftedge.com> Sent; Tuesday, January 10, 2023 9:08 AM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Dan Rollins 560 NW Flagline Dr Bend, OR 97703 1 Angie Powers From: Sent: To: Subject: [EXTERNAL EMAIL] Dear Commissioners: mailagent@thesoftedge.com on behalf of Cornelius Dunbar <mailagent@thesoftedge.com> Tuesday, January 10, 2023 9:38 AM citizeninput We Need Updated Wildlife Inventory Maps We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Cornelius Dunbar 60475 DAKOTA TRL Bend, OR 97702 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Alise Greening <mailagent@thesoftedge.com> Sent: Tuesday, January 10, 2023 11:00 AM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL} Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes. County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Alise Greening 63924 SUNSET DRIVE BEND, OR 97703 1 Angie Powers From: Jeannine Fraley <jeanninefraley@gmail.com> Sent: Tuesday, January 10, 2023 11:23 AM To: citizeninput Subject Wildlife zone Attachments: Wildlife zone:pdf [EXTERNAL EMAIL] Public comment for 1-11.23_ Sent from my iPhone 1-10-2023 Jeannie Fraley 64790 Bruce 65465 Highway 20 Action Item 9. Public Hearing: Planning Division Long Range Work Plan for FY 2022-2023 Dear County Commissioners, understand that you are considering whether to add a Wildlife Inventory Update to the current wildlife plan. believe that the current wildlife area is working well and it currently covers 80% of the county's land mass. That is more than enough space for wildlife protection and should not be expanded. It would be a waste of County resources to spend time on this item. The current wildlife overlay zone is already overly restrictive to the land it covers and prohibits reasonable development of privately held land zoned for residential development, agricultural uses and human occupancy. I believe it also restricts agricultural uses and should not be expanded any further. own property in the rural area of Tumalo and I observe the wildlife moving around this land with ease and they are not bothered by the homes, farm buildings, people, livestock, traffic and farming activities: We have deer and Elk herds, Owls, birds of prey, and other animals that migrate through this residential / agricultural land on a regular basis and with ease. have lived in rural Central Oregon for over 50 years. There is no need to waste money updating the wildlife inventory when there is no issue here. 80% of the county's public land that is held as open space land is more than adequate for wildlife to live and migrate. Please do not add the wildlife inventory to the work plan. Thank you so much for your consideration. Sincerely, Jeannie Fraley Angie Powers From: Blair Sylvester <btsylvester@icloud.com> Sent: Tuesday, January 10, 2023 2:08 PM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [Some people who received this message don't often get email from btsylvester@icloud.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification [EXTERNAL EMAIL] Dear Commissioners, As a lifetime resident of Deschutes County I implore you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. The current inventory maps are 30 years old and during this timeframe our county has undergone huge changes in population, development, recreation and climate. l personally have witnessed the decline of wildlife having grown up here and note that for mule deer alone, numbers are estimated to be around 60% below population management objectives set by ODFW. Rocky Mountain elk, birds of prey and small mammals are also being impacted. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan set in motion nearly two years ago. The integrity of our county depends on it. Sincerely, Blair Sylvester 55955 Snow Goose Rd. Bend, OR 97707-2352 1 Angie Powers From: Sent: To: Subject: Natalie <nataliedollar@ykwc.net> Tuesday, January 10, 2023 4:34 PM citizeninput Deschutes County Wildlife Inventory Update - ArcGIS StoryMaps Some people who received this message don't often get email from nataliedollar@ykwc.net. Learn why this is important [EXTERNAL EMAIL] Please vote to go forward with this important project: Deschutes County Wildlife Inventory Update - ArcGIS StoryMaps Sent from my iPad Angie Powers From: [EXTERNAL EMAIL] Dear Commissioners: mailagent@thesoftedge.com on behalf of Lance wooderson <mailagent@thesoftedge.com> Tuesday, January 10, 2023 6:34 PM citizeninput We Need Updated Wildlife Inventory Maps We urge you to include the completion of the. Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county., Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly. two years ago. Sincerely, Lance wooderson 5230 NW JACKPINE AVE REDMOND, OR 97756 Angie. Powers From: Sent: To: Subject: Sherry Amen <amen@teleport.com> Tuesday, January 10, 2023 7:42 PM citizeninput Deschutes Co. Wildlife Inventory Some people whoreceived this message don't often get email from amen@teleport.com. Learn why this is important [EXTERNAL EMAIL] was shocked to learn that wildlife information used in land use decisions is 30 years old. I have lived in Bend since the 1990's and can tell you with complete certainty that the numbers have decreased dramatically. There is no question that the unbridled building frenzy in the city into blame. Please don't postpone the updating of wildlife maps any longer. Our wildlife is part of what makes Bend such a great place to live and dwindling wildlife numbers should be taken seriously. Sheryl A. Amen 17049 Blue Heron Drive Bend, OR. 97707 1 Angie Powers From: Dan Scofield <scofield.da@gmail.com> Sent: Tuesday, January 10, 2023 8:19 PM To: citizeninput Subject 2023 Work. Plan: please include updated wildlife inventory maps Some people who received this message don't often get email from scofield,da@gmail.com. Learn why this is important [EXTERNAL EMAIL] Hi there, My name is Dan Scofield. I'm a Deschutes country resident living in Bend. I'm unfortunately unable to attend tomorrow's commission meeting, but I want to voice my concern about the outdated wildlife inventory maps and the lack of progress toward completion of the Goal 5 updates to those maps. The current inventory maps are 30 years old and the state of both wildlife and development in the county have clearly changed in the past three decades. I'm urging you to include the completion of the Goal 5 updates to the wildlife inventory maps in the 2023 county work plan. All three of the county's current datasets are out of alignment with the best available science. They're severely outdated and land use changes can conflict with the long-term maintenance of these wildlife resources. Of the three options presented - elk, mule deer, and bird habitat- I'd like to see the mule deer inventory as a pilot project that could then act as a model for both elk and bird habitat. Mule deer have seen drastic population declines across Oregon since the 1970s and this updated data is vital to preserving the health of existing populations. The mule deer winter range habitat inventory does not reflect usage patterns indicated by data collected by ODFW biologists, and this habitat is exceedingly a source of conflict with proposed developments in the county. I believe the mule deer inventory is far more pressing than the elk and bird habitat updates as we've seen no notable declines in elk or sensitive bird habitat proportionally. With ESA listings federally, we see ample protections for the Sensitive Bird Habitat inventory group. As such, the mule deer inventory is a more pressing matter and additionally can become the future blueprint for inventories for the other two species. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development or recreation. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP. Thanks for your consideration. Sincerely, Dan i Angie Powers From: Christine Hodgson <chodgson333@gmail.com> Sent: Tuesday, January 10, 2023 8:46 PM To: citizeninput Subject: Wildlife numbers [Some people who received this message don't often get email from chodgson333@gmail.com. Learn why this is important at https://aka.ms/LearnAboutSenderidentification ] [EXTERNAL EMAIL] Please proceed with the study to protect our wildlife. Sent from my iPhone 1 Angie Powers From: mailagent@thesoftedge.com on behalf of Benjamin Rubin <mailagent@thesoftedge.com> Sent: Wednesday, January 11, 2023 5:42 AM To: citizeninput Subject: We Need Updated Wildlife Inventory Maps [EXTERNAL EMAIL] Dear Commissioners: We urge you to include the completion of the Goal 5 updates to the wildlife inventory maps into the 2023 work plan for county planners. Current inventory maps are 30 years old and a lot has changed in that timeframe in the county. Wildlife in Deschutes County will continue to feel the pressures of human impacts, whether from development, recreation, or other anthropomorphic causes. We will continue to create land use conflicts unless this new available data is incorporated into this DCCP and we urge you to follow through on the plan they themselves set in motion nearly two years ago. Sincerely, Benjamin Rubin 2144 NW Deschutes PI Apt 3 Bend, OR 97703 1 Angie Powers From: Regan Olson <deschutesforest@icloud.com> Sent: Wednesday, January 11, 2023 6:37 AM To: citizeninput [Some people who received this message don't often get email from deschutesforest@icloud.com. Learn why this is important at https://aka.ms/LearnAboutSenderldentification ] [EXTERNAL EMAIL] I support awareness of deer and elk habitat and of migration routes!!! DeBone and Adair are not making a good choice to resist this!! They will not get my vote in the future!!!! Regan Olson Angie Powers From: Sent: To: Subject: Kathryn Hanavan <kathy.hanavan@icloud.com> Wednesday, January 11, 2023 7:34 AM citizeninput Proceed on Some people who received this message don't often get email from kathy.hanavan@icloud.com. Learn why this is important [EXTERNAL EMAIL] Please vote to update maps showing wildlife movement of mule deer and eagles. Thank you! Kathy Hanavan i Angie Powers From: Kathryn Hanavan <kathy.hanavan@icloud.com> Sent; Wednesday, January 11, 2023 7;34 AM To: citizeninput Subject: Proceed on Some people who received this message, don't often get email [EXTERNAL EMAIL] rom kathy.hanavan@icloud.com. Learn why this is important Please vote to update maps showing wildlife movement of mule deer and eagles. Thank you! Kathy Hanavan i Angie Powers From: Etta Sura <ettasura@gmail.com> Sent: Wednesday, January 11, 2023 7:40 AM To: ' citizeninput Subject Deschutes County Wildlife Inventory Some people who received this message don't often get email from ettasura@gmail.com. Learn why this is important [EXTERNAL EMAIL] Proceed. 1 TUMALO IRRIGATION DISTRICT January 3rd, 2023 Via: First Class Mail Deschutes County Board of Commissioners 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: 2023-2024 Community Development Dept. Work Plan — Planning Division Dear Commissioners: This letter provides Tumalo Irrigation District's ("TID") comments on the forthcoming 2023- 2024 Community Development Department Work Plan and specifically that related to the Planning Division. TID's concerns specifically relate to (i) updates to Goal 5 wildlife inventories and corresponding expansion of the Wildlife Overlay Combining Zone (WA) and (ii) irrigation related "wetlands". Although Deschutes County is in no way legally obligated to do so, the County has made some initial efforts to update its Goal 5 wildlife inventories with respect to Winter Mule Deer Range, Winter Elk Range, and Sensitive Bird Habitats. Goal 5 wildlife inventories are effectively maps depicting the presumed locations of the various habitats that in turn result in application of the WA Zone to affected properties. Consequently, properties burdened by the WA Zone are subject to various additional species -specific land use regulations. Preliminary maps associated with these inventory updates depict that every TID patron, most of whom are not presently subject to the WA Zone, will be subject to at least one of the various species -specific wildlife inventories. TID is concerned about application of the WA Zone for both properties owned by TID and properties owned by its patrons. The WA Zone regulations, in their present form, greatly reduce the developability (and thus the value) of TID's properties, which will play a key role in funding piping and other water conservation projects. Specifically, the WA Zone regulations increase minimum lot sizes to up to 160 acres, remove any density bonuses associated with cluster developments, increase cluster development open space requirements from 65% to 80%, and vastly restrict permitted uses of the open space parcels. The current WA Zone regulations also present the potential for property owners to be required to adhere to fencing requirements that are ineffective for containing livestock (15" of ground clearance, 48" total height, and no barbed wire). Also, it would require time and place restrictions on normal agricultural activities related to EFU and MUA10 zoning. While TID generally supports efforts to promote wildlife, TID believes that onerous land use regulations are not the answer. Rather than expanding the WA Zone, the Commissioners should direct County planning staff to investigate incentive -based approaches. Secondly, many of the irrigation canals and ponds, and in some instances formerly flood irrigated fields, within the County have been included in the various national, state, and local 64697 Cook Ave, Bend, OR 97703 I (541) 382-3053 I Email: staf (5.?tumalo.orq TUMALO IRRIGATION DISTRICT wetlands inventories. In large part, these inventories determine the applicability of wetlands regulations contained in the Deschutes County Code. While state law provides for up to 50 cubic yards of fill and removal activities within wetlands without any state permitting, DCC 18.128.270 provides that "[e]xcept as otherwise provided in DCC Title 18, no person shall fill or remove' any material or remove any vegetation, regardless of the amount, within...any wetland, unless such fill or removal is approved as a conditional use[.]" While irrigation districts have an outright exception from any County permitting requirements for "piping work in existing canals and ditches within wetlands", irrigation district patrons (and other property owners) are only granted an outright exception for "removal of diseased or insect - infested trees or shrubs or of rotten or damaged trees that present safety hazards" or "normal maintenance and pruning of trees and shrubs." There is also authority for the Planning Director, after making certain discretionary findings, to authorize, without a conditional use permit, fill or removal for maintenance and repair of "existing bridges, dams, irrigation facilities and similar public and semipublic facilities[.]" The inclusion of artificial irrigation related "wetlands" in the various wetland inventories combined with the low threshold for wetlands related permitting/approvals under County Code presents several problems for both irrigation districts and their patrons. Namely, the County Code effectively requires a land use decision for irrigation facility maintenance activities. Moreover, the existing language largely prohibits private piping given the stringent requirements of the conditional use permitting for fill and removal. TID has even heard of property owners being required by the County to either demonstrate that wetlands did not exist on the applicable portion of the property (by obtaining a costly wetlands delineation from a private consultant and receiving approval of such delineation from the state) or obtain a conditional use permit to improve an existing driveway on the property that ran through a mapped "wetland" associated with an abandoned private irrigation ditch. Maintenance and piping of irrigation facilities should not require any County permitting/approvals as the State already regulates fill and removal activities within wetlands. Accordingly, there must be more outright exceptions granted for fill and removal activities within irrigation "wetlands" or, at the very least, the threshold for permitting/approval for fill and removal activities within irrigation "wetlands" must at least be raised to match State permitting requirements. Given the widespread nature of this issue, the Commissioners should make updates to wetland provisions of the County Code part of the work plan for the Planning division. Chris Schull District Manager for Tumalo Irrigation District ' "Fill and removal" is defined in DCC 18.04.030 as "the deposit or removal by artificial means of material at a location within the waters of any lake, river or stream, or in wetlands or riparian areas." 64697 Cook Ave, Bend, OR 97703 I (541) 382-3053 I Email: staff(d..tumalo. orq REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer's Decision in File No. 247-22-000678- MC. and * * ORDER NO. 2023-004 WHEREAS, on December 19, 2022 the Hearings Officer denied File No. 247-22-000678-MC; WHEREAS, on December 30, 2022, Central Land & Cattle Company, LLC, Kameron DaLashmutt, and Pinnacle Utilities, LLC ("Applicant"), appealed (Appeal No. 247-22-000984-A)) the Deschutes County Hearings Officer's Decision on File No. 247-22-000678-MC; and WHEREAS, on January 3, 2023, Annunziata Gould ("Appellant") appealed (Appeal No. 247- 23-000003-A) the Deschutes County Hearings Officer's Decision on File No. 247-22-000678-MC; and WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow the Deschutes County Board of County Commissioners ("Board") discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. That it will hear on appeal Appeal Nos. 247-22-000984-A and 247-23-000003- A pursuant to Title 22 of the DCC and other applicable provisions of the County land use ordinances. Section 2. The appeals shall be heard on the record. Section 3. Staff shall set a hearing date and cause notice to be given to all persons or parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030. ORDER NO. 2023-004 Section 4. Pursuant to Section 22.32.024, the Board waives the requirement that the appellants provide a complete transcript for the appeals hearing. Section 5. Pursuant to DCC 22.32.035(D), to date the only documents placed before and considered by the Board are the notice of appeals, recommendations of staff, and the record developed before the lower hearings body for File No. 247-22-000678-MC as presented at the following website: https://www.deschutes.org/cd/page/247-22-000678-mc-thornburgh-destination-resort- modification-cmpfmpfwmp Going forward, all documents further placed before, and not rejected by, the Board shall be added to the aforementioned website, and that website shall be the Board's official repository for the record in this matter. DATED this day of , 2023. BOARD OF COUNTY COMMISSIONERS ANTHONY DEBONE, Chair ATTEST: PATTI ADAIR, Vice Chair Recording Secretary PHIL CHANG, Commissioner ORDER NO. 2023-004 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying Review of Hearings Officer's Decision in File No. File No. 247-22- * ORDER NO. 2023-004 000678-MC WHEREAS, on December 19, 2022 the Hearings Officer denied File No. 247-22-000678-MC; and WHEREAS, on December 30, 2022, Central Land & Cattle Company, LLC, Kameron DaLashmutt, and Pinnacle Utilities, LLC ("Applicant") , appealed (Appeal No. 247-22-000984-A)) the Deschutes County Hearings Officer's Decision on File No. 247-22-000678-MC; and WHEREAS, on January 3, 2023, Annunziata Gould ("Appellant"), appealed (Appeal No. 247- 23-000003-A) the Deschutes County Hearings Officer's Decision on File No. 247-22-000678-MC; and WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow the Deschutes County Board of County Commissioners ("Board") discretion on whether to hear appeals of Hearings Officers' decisions; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. That it will not hear on appeal Appeal Nos. 247-22-000984-A and 247-23- 000003-A pursuant to Title 22 of the DCC and/or other applicable provisions of the County land use ordinances. Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal fees not yet spent processing the subject application. If the matter is further appealed to the Land Use Board of Appeals and the County is required to prepare a transcript of the hearing before the Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by the County to prepare such a transcript. ORDER NO. 2023-004 Section 3. Pursuant to DCC 22.32.035(D), to date the only documents placed before and considered by the Board are the notice of appeals, recommendations of staff, and the record developed before the lower hearings body for File No. 247-22-000678-MC as presented at the following website: https://www.deschutes.org/cd/page/247-22-000678-mc-thornburgh-destination-resort- modification-cmpfmpfwmp DATED this day of , 2023. BOARD OF COUNTY COMMISSIONERS ANTHONY DEBONE, Chair ATTEST: PATTI ADAIR, Vice Chair Recording Secretary PHIL CHANG, Commissioner ORDER NO. 2023-004 bXHII3I 11 Page 1 of 28 Summary Letter CAS CAD E G E O E N G I N E E R I N G 2145 Scottsdale DR, Bend, Oregon 977oi 36o-907-4162 newtonjim@hotmail.com hotmail.com November 7, 2022 TO: Kameron Delashmutt Central Land and Cattle Company, LLC 67525 SW Cline Falls Hwy Redmond, Oregon 97756 FROM: Jim Newton, P.E., R.G., C.W.R.E. RE: 2022 THORNBURGH RESORT FISH AND WILDLIFE MITIGATION PLAN, Dear Kameron: This summary letter has been prepared by Jim Newton, PE, RG, CWRE, Principal of Cascade Geoengineering ("CGE") on behalf of Central Land and Cattle Company, LLC, owner, and developer of the Thornburgh Resort ("Thornburgh") to provide a simplified summary of the 2022 "Thornburgh Resort Fish and Wildlife Mitigation Plan, Addendum #2 (2022 FWMP) Relating to Potential Impacts of Thornburgh's Reduced Ground Water Withdrawals on Fish Habitat" dated August 16, 2022. The 2022 FWMP presented very detailed changes to the original 2008 FWMP that was approved by the Oregon Department of Fish and Wildlife (ODFW). Both the 2008 and 2022 FWMP provided mitigation to offset any potential impacts on fisheries and aquatic habitat and the specific measures to mitigate for any negative impacts. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 977m 360-907-4i62 w ww.cascadegeoengineering.com EXHIBI 11 Page 2 of 28 Thornburgh estimated in 2008 the Resort's water needs at full build out were up to 2,129 AF per year, having consumptive use of 1,356 AF, and a maximum withdrawal rate of 9.28 cubic feet per second (cfs). The Thornburgh Resort revised water needs at full build out by reducing some water intensive amenities and reducing irrigated landscaping for resort facilities and individual homes. The Resort will also implement the use of improvements in the type and method of fixtures used in Resort buildings to reduce consumption. As a result of this Thornburgh is reducing its total water needs from 2,129 AF to 1,460 AF. A summary table of the 2008 estimated water demand and the 2022 revised water demand are shown below: 2008 Original Water Use Full Resort Build -Out WATER USE ANNUAL VOLUME CONSUMPTIVE USE Golf Courses 717 AF 645 AF Irrigation 195 AF 117 AF Reservoir Maintenance 246 AF 206 AF Other Q/M 971 AF 388 AF TOTALS 9.28 CFS 2,129 AF 1,356 AF 2022 Reduced/Revised Water Use at Full Resort Build -Out WATER USE ANNUAL VOLUME CONSUMPTIVE USE Golf Courses 501 AF 451 AF Irrigation 111 AF 66 AF Reservoir Maintenance 51 AF 43 AF Other Q/M 797 AF 319 AF TOTALS 1,460 AF 882 AF The above reductions in estimated annual water usage reflect roughly a one-third in water savings at full buildout of the Resort. Further, the water used for mitigation of the new Resort water usage relies more on groundwater, groundwater that is intended to offset groundwater pumping that could reduce discharges of seeps and springs that contribute cool water to surface flows in the Deschutes River and Whychus Creek at gaining reaches of the River and Creek, respectively. A list of the water rights to be used for mitigation of the Resort water uses are shown below by the referenced name, volume and the water right certificate, transfer or otherwise a cancellation: Water Rights: Certificated, Transfers, and Cancellations. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 977ot 360-9o7-4162 w ww.cascadegeoengineering.com Page o2 EXHI131 11 Page 3 of 28 1. LeBeau (200 AF) — Surface Water POD: Certificate 95746 and transfer T-13857. 2. Big Falls Ranch (614.4 AF) — Surface Water: Certificate 96192 & 96190 and transfer T-12651 to a groundwater Point of Appropriation. 3. Big Falls Ranch (25.6 AF) — Groundwater POA: Certificate 87558. 4. Tree Farm (327.5 AF) — Groundwater POA: Certificate 94948 and Transfer T- 13703. 5. Dutch Pacific (49.5 F) — Groundwater POA: Certificate 89259. 6. DRC Temporary Mitigation Credits — 6 AF of mitigation. 7. Three Sisters Irrigation District (1.51 cfs minimum 106 AF) — Surface water. Final order signed for instream transfer. This TSID water will only be used for quality mitigation, not as part of any OWRD mitigation or transfer program. These above mitigative water rights, upon approval by the Oregon Water Resources Department, will provide mitigation for 1,217 AF of the 1,460 AF required for fully mitigation the estimated Resort water uses. The remaining approximately 243 AF of mitigation will be completed in the future, prior to the OWRD authorizing the full annual water use of 1,460 AF. If the additional 243 AF of mitigation is not necessary, or unavailable, the Resort will be limited to 1,217 AF annually. Based on the detailed surface and groundwater modelling prepared by Four Peaks Environmental Consulting, and Resource Strategies, Inc., and the analysis of the impacts on Fish Habitat provided by Four Peaks (all submitted into the county written record as of the date of this letter), the mitigation of the Thornburgh Resort groundwater usage achieves compliance with DCC 18.113.070(D), Deschutes County's "No Net Loss/Degradation" standard as it pertains to fishery resources. Considering the reduced Thornburgh Resort water usage and superior mitigation of future Resort water uses provided by the 2022 FWMP and the ample technical support for the plan, the County should approve the Thornburgh 2022 FWMP. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 977w. 360-907-4162 w ww.cascadegeoengineering.com Page o3 CXHII31 11 Page 4 of 28 THORNBURGH RESORT 2022 FISH AND WILDLIFE MITIGATION PLAN (2022 FWMP) RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT Renews: 1/1/2023 Prepared for: Renews: 5/1/2023 Central Land and Cattle Company, LLC 67525 SW Cline Falls Hwy Redmond, Oregon 97756 Prepared by: Cascade Geoengineering, LLC 21145 Scottsdale Drive Bend, Oregon 97701 August 16, 2022 Reorganized and Updated November 7, 2022 Project: Thornburgh Resort bXHI13I 11 Page 5 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 I. Introduction 2 This report was prepared by Jim Newton, PE, RG, CWRE, Principal of Cascade Geoengineering ("CGE") on behalf of Central Land and Cattle Company, LLC, owner, and developer of the Thornburgh Resort ("Thornburgh" or the "Resort") as an Addendum to the Thornburgh Resort and Wildlife Mitigation Plan regarding potential impacts on fisheries and aquatic habitat and the specific measures to mitigate for any negative impacts. It incorporates elements of and replaces the "Addendum Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat" dated April 21, 2008 (the "FWMP") developed by Newton Consultants, Inc. ("NCI") and supplements thereto. II. Background The Thornburgh Resort will have no direct impact on natural surface waters; there are no such resources on the property and the proposed source of water for the Resort is ground water pumped from wells on the Resort property, to be appropriated under a series of water rights approved by the Oregon Water Resources Department ("OWRD"). Use of ground water by the Resort is expected to indirectly impact flows in the Deschutes River because of a determination of hydraulic connection between surface and ground waters in the Deschutes Basin. This connection has been noted by the USGS and a determination confirming such was made by OWRD in connection with its evaluation and approval of one of Thornburgh's original water rights authorizing the appropriation of 2,129 acre-feet of ground water for the Resort. As a result of the determination of hydraulic connection, Thornburgh was required to provide mitigation to offset impacts equal to the consumptive use in the "zone of impact" identified by OWRD, in this case the "General Zone" of impact. In addition to the OWRD requirements, Thornburgh voluntarily agreed it would address both flow and temperature concerns with measures set out in Section V: Mitigation and Enhancement Measures of the 2008 FWMP. Temperature concerns were addressed by using cooler water for a part of the Resort's OWRD mitigation. The cooler water was to be obtained by purchasing Big Falls Ranch ("BFR") water rights that entitled BFR to pump surface water from Deep Canyon Creek. This water, with a temperature of approximately 13 degrees C would be acquired over time as needed from Big Falls Ranch. Once acquired BFR would cease pumping the rights acquired by Thornburgh and thereby improve flows and cool the river. The remaining mitigation water would also be surface water, from COID and other sources, with an estimated temperature of 26 degrees C. The 2008 FWMP and other measures added to it during the review of the Final Master Plan (FMP) were determined to fully mitigate for any negative impacts on fish habitat and to achieve compliance with DCC 18.113.070(D), Deschutes County's "No Net Loss/Degradation" standard as it pertained to fishery resources.' This cooler water, roughly 62% of the total mitigation promised by the 2008 FWMP, was found sufficient to fully mitigate for 100% of the thermal impacts to the Deschutes River (and to Whychus Creek as well according to ODFW) attributable to Thornburgh's pumping. Further, the ' This is a Deschutes County standard only. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXH I I31 11 Page 6 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 3 1.87 cfs2 of impacts to seeps and springs in the 2008 FWMP was mitigated for by leaving 1.97 cfs (equal to 105% of the impacts) of the Deep Canyon water in the river upstream of areas identified as critical fish habitat. Additionally, this mitigation was determined by the Oregon Department of Fish and Wildlife ("ODFW") to result in a net benefit to fisheries. Project opponents objected to the 2008 FWMP, claiming that no mitigation was provided to address a slight reduction in groundwater recharge to Lower Whychus Creek. Although Thornburgh and ODFW disagreed mitigation was needed in this location, Thornburgh volunteered to provide additional mitigation specifically for Whychus Creek by funding a part of a Three Sisters Irrigation District project. The County's hearing officer accepted this offer. The Whychus Creek mitigation was opposed by a project opponent but following an extensive, and protracted legal battle was proven to meet the No Net Loss standard, and provide additional benefits to habitat resources in Whychus Creek by increasing the flow of the creek many miles upstream of the cool water fish habitat found in Lower Whychus Creek, which is now completed. III. Resort Water Supply and OWRD Mitigation A. Resort Water Needs and Supply Thornburgh's water supply is groundwater pumped from the Deschutes Aquifer from numerous wells located within the resort boundaries. That has not changed since the Resort was first approved in 2006. The Deschutes Aquifer is vast covering about 4,500 square miles with a thickness or depth of as much as 2,000 feet at points. The aquifer holds an immense water volume with very substantial flows through it. Annual recharge of the aquifer is about 3,800 cfs or more than 2,750,000 AF per year while annual usage is roughly 750,000 AF, the bulk of which is irrigation. Water generally travels north and east until it reaches Lake Billy Chinook. The Resort's original plan anticipated 6 groundwater wells would be used. Presently, there are 8 potential groundwater wells. However, changes to Resort infrastructure may require additional well locations to be added or moved'. Any well within the Resort property will pump from the same regional aquifer to supply Thornburgh water for a variety of purposes, common among municipal and resort style communities in Central Oregon. As was noted from a David Newton in a memo dated August 24, 2021, the number or specific location of wells within the Resort property has no bearing on the mitigation plan or the efficacy of mitigation to offset pumped groundwater from the Resort's property. This conclusion has been verified by comprehensive groundwater modeling that was completed by Four Peaks Environmental Consulting ("Four Peaks"). Four Peaks determined that changing well locations at the Thornburgh property would have no change on the impacts felt from Thornburgh's pumping. See Four Peaks: Evaluation of the Impacts of Proposed Groundwater Pumping at Thornburgh Resort Project dated October 19, 2022, (Four Peaks GSFIow) a The 1.87 cfs of impact was the total amount of impact to all seeps and springs in any location (Deschutes, Whychus, etc.) from Thornburgh pumping 2,129 AF of groundwater. 3 The CMP began with 6 well locations that were changed in the approved FMP. The A-1 Tentative Plan approved another well location. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHII3I 11 Page 7 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 4 Thornburgh uses to be served by its wells include domestic and commercial uses, golf course, park and landscape irrigation, reservoir/pond maintenance and fire protection. Collectively, these uses are defined by the OWRD as "quasi -municipal" uses. In 2008, the Resort's water needs at full build out were estimated at 2,129 AF per year, having consumptive use of 1,356 AF, and a maximum withdrawal rate of 9.28 cfs as shown below. As defined by OAR 690-505- 0605(2), "Consumptive use" means the Department's determination of the amount of a ground water appropriation that does not return to surface water flows in the Deschutes Basin due to transpiration, evaporation or movement to another basin." 1. Original Water Use Full Resort Build -Out WATER USE ANNUAL VOLUME CONSUMPTIVE USE Golf Courses 717 AF 645 AF Irrigation 195 AF 117 AF Reservoir Maint 246 AF 206 AF Other Q/M 971 AF 388 AF TOTALS9.28 CFS. 2,129 AF 1,356 AF Since the approval of the 2008 FWMP, issues regarding the use and conservation of water have become increasingly important to the region. As a result of this growing regional water awareness, Thornburgh has taken focused steps to reduce the Resort's water usage by roughly one third. This reduction of water use will be achieved by Thornburgh foregoing its right to develop some water intensive amenities and reducing irrigated landscaping for resort facilities and individual homes. The Resort will also implement the use of improvements in the type and method of fixtures used in Resort buildings. As a result of this Thornburgh is reducing its total water needs from 2,129 AF to 1,460 AF and its consumptive use from 1,356 to 882 AF, as shown in table 2 below. 2. Reduced Water Use at Full Resort Build -Out WATER USE ANNUAL VOLUME CONSUMPTIVE USE Golf Courses 501 AF 451 AF Irrigation 111 AF 66 AF Pond Maint. 51 AF 43 AF Other Q/M 797 AF 319 AF TOTALS 1,460 AF 882 AF Thornburgh owns or controls numerous applications, permits and other certificated water rights for use as part of the Resort's water plans that may be used for consumptive water or mitigation water purposes. These include certificated water rights, transfers, and cancellations (See Section B below) and ground water applications and permits (See Section C). For further details see Attachment 1. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com bXHI13I 11 Page 8 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 B. Water Rights: Certificated, Transfers, and Cancellations. 5 1. LeBeau (200 AF) — Surface Water POD: Certificate 95746 and transfer T-13857. 2. Big Falls Ranch (614.4 AF) — Surface Water: Certificate 96192 & 96190 and transfer T- 12651 to a groundwater Point of Appropriation. 3. Big Falls Ranch (25.6 AF) — Groundwater POA: Certificate 87558. 4. Tree Farm (327.5 AF) — Groundwater POA: Certificate 94948 and Transfer T-13703. 5. Dutch Pacific (49.5 F) — Groundwater POA: Certificate 89259. 6. DRC Temporary Mitigation Credits — 6 AF of mitigation. 7. Three Sisters Irrigation District (1.51 cfs minimum 106 AF) — Surface water. Final order signed for instream transfer. This Whychus Creek TSID water will only be used for quality mitigation, not as part of any OWRD mitigation or transfer program (m). C. Ground Water Rights: Permits and Applications. 8. GW Permit G-17036: Permit for 9.28 cfs (2,129 AF) of groundwater. Currently pending a contested case regarding extension of the permit. 9. GW Permit Application G-19139 (pending). Alternate permit for 9.28 cfs (2,129 AF) to replace G-17036 if needed. 10. Limited License Application LL-1879 (pending). Alternate permit for 4.5 cfs of groundwater for interim use during actions on #8-9 above. 11. Limited License Application LL 1917 (pending). A second alternate limited license for .453 cfs of groundwater (same amount and alternate to T-137034. For any of the permits or applications in "C" above, OWRD requires mitigation under ORS 390.835 and related administrative rules in OAR 690-505-0500 et seq. This does not apply to the transfer of certificated water rights that have been fully developed. The functional effects of a transfer and a new fully mitigated pumping are essentially the same. Both result in the termination of the right to pump water in one location and both authorize pumping in the new location. The OWRD mitigation rules were adopted in response to a comprehensive study of ground water resources in the Deschutes Basin conducted by the United States Geological Survey ("USGS") and OWRD. (Ground Water Hydrology of the Upper Deschutes Basin, Oregon," USGS Water Resources Investigation Report 00-4162, 2001). The study demonstrates hydraulic connection between the regional groundwater aquifer and surface water within the Deschutes Ground Water Study Area as shown on Figure 1. As a result, the rules require mitigation to offset the impact of ground water pumping on surface water flows. In reviewing applications for new ground water rights, OWRD determines the total quantity of water to be diverted from groundwater and the amount of "consumptive use" associated with the proposed new use. The amount of mitigation required — or "mitigation obligation" — is equal to the annual amount of consumptive use. In addition to specifying the quantity of mitigation water required to offset consumptive use, OWRD identifies the "zone of impact" or location Now that the Tree Farm transfer has been approved this LL may not be required. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHIt3I 11 Page 9 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 6 within the surface water system in which the impact of a proposed ground water use is expected to occur. Mitigation for any new groundwater permit used by Thornburgh is required in the "General Zone of Impact" which allows mitigation water to be obtained from any source in the Deschutes Basin above the Madras gage, located below Lake Billy Chinook. The broad geographic scope of the General Zone reflects findings in the USGS Study that most ground water within the basin flows toward the confluence area of the Crooked and Deschutes Rivers and discharges into the river and tributaries in an area just above Lake Billy Chinook. Initially, OWRD determined the consumptive use, and mitigation obligation of permit G-17036 to be 851.6 AF (40%, of 2,129 AF). WaterWatch of Oregon protested that determination and Thornburgh voluntarily agreed to increase the consumptive use of individual elements of the permit which raised the overall mitigation requirement to 1,356 AF which in essence provides an additional 505 AF (over 50% extra) of mitigation. The application for the replacement permit G-19139 uses the same consumptive use rates applied by OWRD under the settlement. Under OWRD rules, mitigation for new groundwater permits must be provided in advance for the full amount of water to be pumped under the new permit for each phase of development. D. Thornburgh 2022 Mitigation Plan (includes OWRD Mitigation ("M") and No Net Loss Quality Mitigation ("m"). To achieve compliance with DCC 18.113.070(D), Thornburgh commits to reduce its water usage to a maximum of 1,460 AF, having a consumptive usage of no more than 882 AF. Further, Thornburgh commits to purchase the certificated water rights #1-5 in Section B above (all are both OWRD (M) and Quality (m) mitigation) and discontinue pumping water in the location appurtenant to the right. Thornburgh committed to and has acquired the TSID-Whychus Creek quality mitigation (m) water listed in #7 above. Thornburgh has transferred or will be seeking approvals to transfer the water rights in #1-4 to the Thornburgh wells. The transfers will change the place of appropriation, the place of use, and in the case of irrigation rights, the character of use from irrigation to quasi -municipal uses. Transferring a certificated water right does not require OWRD mitigation, as it eliminates the use of this transferred water right in its former location and allows it to be used, instead, on the Resort's property. Thornburgh's transfers, if approved, will total 1,167.5 AF. The first of which the Tree Farm, temporary transfer T-13703, was approved transferring 327.5 AF of quasi -municipal water from a well in west Bend to the Thornburgh wells. Transfer for the LeBeau and Big Falls Ranch water have been applied for and are pending. If any transfer is not approved, the water right could be cancelled in lieu of mitigation (both the groundwater and surface water rights) or transferred instream (just the surface water rights) for mitigation credits. Water Right #5 above, Certificate 89259, Dutch Pacific, for 49.5 AF groundwater is presently being cancelled in lieu of mitigation. When all the transfers and cancellations are complete, Thornburgh will be able to pump 1,217 AF5. To pump over 1,217 AF Thornburgh will transfer additional water rights to transfer to its property or provide additional mitigation (243 AF +/-). Until Thornburgh's transfer applications are fully adjudicated it is unclear how much water will be pumped from G-17036, G19039, or any alternate "NEW" groundwater or limited license 5 1,223 AF including the 6 AF listed in #6 above that can be used as M mitigation. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHII3I 11 Page 10 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 7 permit.' What is clear, however, is that the Resort has agreed to reduce its water use from 2,129 AF to a maximum pumping of 1,460 AF and maximum consumptive use of 882' AF. For any portion of its water Thornburgh pumps under a new groundwater permit it will be required to provide mitigation for that new use prior to pumping. OWRD will require that these water rights are also in the general zone of impact. The mitigation benefits provided under this plan occur at different times depending on whether the permit is appropriated from a groundwater source, i.e., Dutch, and Tree Farm permits or surface water permits that are diverted from the stream, i.e., the LeBeau permit. For permits appropriated from the ground, the mitigation event occurs when Thornburgh acquires the water right and files an assignment of water right with OWRD and does not pump water under the authority of the permit in advance of OWRD approval of a transfer or other mitigation measure. While the approval of a transfer (or an alternate described herein) is needed to allow groundwater pumping on the Resort property, it is not needed to achieve compliance with the 2022 FWMP for a permit appropriated from groundwater, or to meet the County's no net loss standard. In that case, the ownership, assignment, and a commitment to nonuse of the water rights under that permit until it is transferred or used for mitigation may be relied on to demonstrate compliance with the FWMP during a third stage development permit review. Doing the measures outlined in this Section D will meet or exceed the No Net Loss standard as provided for in DCC 18.113.070(D) as for the reasons discussed in detail in the Sections below. F. Groundwater Withdrawals and Quality Mitigation In other resort approvals, OWRD mitigation was accepted as providing the entire mitigation needed to meet this standard for fish habitat. In the case of Thornburgh Resort, this standard has been redefined to require "water quality" mitigation. This was required even though all groundwater pumping in the Deschutes Basin affects groundwater discharges which impact stream flows. OWRD mitigation, by design, increases streamflow by either increasing groundwater discharge into the stream (cold groundwater mitigation directly via seeps and springs) or by leaving water in the stream (surface water mitigation), which typically has the benefit of reducing river and creek temperatures associated with the increase in water flow. Further, in the Deschutes Basin, surface water generally originates as groundwater released by seeps and springs due to the hydrological connection. Snowpack melts in the mountains and seeps into the highly permeable and porous ground. Water then flows down -gradient in the aquifer to be discharged into streams as springs or seeps. In this basin a minimal amount of surface water is the result of run-off. Surface water that begins as ground water is often diverted or pumped from our streams to feed the basin's substantial irrigation system. Irrigation water that is not consumed, seeps back into the porous soil and down into the aquifer 6 Any new water right or authorization won't impact the mitigation measures required as the source would remain the same regional aquifer. Applying OWRD standard practice of 40% to QM permits would result in consumptive use of 584 AF. This plan provides mitigation far more than that amount. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com bXHI131 1 1 Page 11 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 8 as return flows back to groundwater. Once returned to the aquifer, groundwater flows to the north and northeast until it is discharged back into streams and ultimately the Deschutes River as surface water. Regardless of the type (surface or groundwater) or place of mitigation, streamflow in the basin has been shown to increase when surface water irrigation or groundwater use is discontinued. Increasing streamflow was the main purpose of the OWRD mitigation program and also a primary purpose of many of the basin's environmental actions and restoration programs. NCI noted this in the 2015-2017 remand of the FMP relating to TSID mitigation for Whychus Creek. Flow volumes in the upper Deschutes River are an important component of the current Habitat Conservation Plan for the Oregon Spotted Frog. Flow volume guarantees set to protect the frog have created substantial impacts on the operation of the basin's irrigation districts and a tremendous burden on some of farmers within the basin, including North Unit Irrigation District. Opponents of Thornburgh have typically focused on groundwater as it relates to its ability to affect streamflow, particularly the thermal conditions or "quality" of the remaining flow resulting from groundwater pumping. More specifically, the areas below Lower Bridge on the Deschutes River and lower Whychus Creek where the discharge of significant amounts of cold groundwater, can dramatically lower stream temperatures result in improved water quality. Quality Mitigation - 2008 FWMP: In the 2008 FWMP, the reduction in groundwater discharge resulting from pumping was mitigated by providing surface water in the Deschutes River and its Deep Canyon Creek and Whychus Creek tributaries. In both cases, surface water mitigation was justified because it was cool. Water left in Deep Canyon Creek, is spring fed with a temperature of roughly 13 degrees C as it flows into the Deschutes River'. Adding the average mitigation flow of 1.97 cfs from the cool Deep Canyon Creek water rights more than replaced the average reduction of 1.87 cfs in seep and spring discharge claimed by the 2008 Yinger report commissioned by a project opponent. At the same time, Tetra Tech's Mass Balance Analysis estimated the temperature impact of these claimed reductions in streamflow, with mitigation as a minor temperature increase of 0.1 degrees C in the Deschutes River at Steelhead Falls and below the mouth of Whychus Creek, along with increased flows in the river from north Bend downriver. For the area around Lower Bridge Tetra Tech noted a zero -degree change which was rounded down from a minor impact. Even though there was up to a 0.1 degree C increase in temperature in two areas of critical fish habitat the mitigation plan was found to meet the no net loss standard because it replaced the loss of seeps and springs (1.97 vs. 1.87 cfs) and the temperature change was found to be of no impact to fish habitat in the Deschutes River. Mitigation was required for Whychus Creek, despite the extremely minor impacts projected there by Mr. Yinger, because the 2008 hearings officer was concerned the Resort's "peak" summertime use of water might have greater impacts than modeled. The water in Whychus This was the temperature Tetra Tech, a key consultant for Thornburgh Resort, utilized to calculate thermal impacts during the 2008 FMP proceedings. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHII3I 11 Page 12 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 9 Creek at the TSID diversion has an average temp of about 13 degrees C9. The applicant's expert hydrogeologist David Newton, PE, CWRE, established that by scientific analysis that leaving more of that cool water in the creek from that point downstream increased the thermal mass of the creek causing it to heat Tess as it flows downstream. The NCI memo from October 2017 shows the maximum thermal impacts to lower Whychus Creek without mitigation, during the peak summertime temperatures and the creek at its lowest flow, to be 0.0042 degrees C. This is far less than what can be measured using technology available today. With the TSID surface water mitigation, the temperature was lowered in Whychus Creek (lowered by approximately 0.001, again in an amount too small to be measured)10. The TSID water also provided thermal benefits to the middle and upper parts of the creek as noted in the NCI memo, although those benefits were not considered to meet the standard due to the limited scope of the review on remand which focused on temperatures in Lower Whychus Creek only. The TSID mitigation in Whychus Creek was shown to meet the no net loss/degradation standard. In the Crooked River, Yinger's 2008 study (Yinger 2008) noted roughly 13% of the impacts of flow reduction would be felt in the Crooked River, but neither Yinger nor ODFW voiced concerns about thermal impacts there. This may be because of the large groundwater discharges in the area and the fact that the temperatures of the groundwater discharging into the Crooked River at Opal Springs and Osborne are warmer (between 11.6 and 13.7 degrees C11) than the discharges noted into the Deschutes or Whychus (around 11 degrees C). See Exhibit 6, OWRD Spring Temp. Of note is the 2008 FWMP had no Crooked River mitigation. All 2008 mitigation was Deschutes River and Whychus Creek surface water mitigation. To better understand the impacts to the groundwater in the Crooked River from Thornburgh pumping, Four Peaks modeled the changes in discharge resulting from both the 2008 and 2022 FWMP while Newton provided mass balance analysis of both mitigation plans12. Quality Mitigation- 2022 FWMP: A key improvement of the 2022 FWMP over the 2008 version is the increase in the percent of cold -water mitigation that is used to provide quality mitigation. As noted above the 2008 plan had 100% surface water comprised of the Deep Canyon water (roughly 62%) and other sources (roughly 38%) such as COID, etc. The Deep Canyon water was 13 degrees C entering the Deschutes River while the other surface water was 26 degrees C. This resulted in average temperature of the mitigation water of 18 degrees C where the mitigation enters the waterways. In comparison the 2022 plan used 85% cold groundwater at 11 degrees C and 15% surface water at 20.4 degrees C for an average of 12.5 degrees C where the mitigation enters the rivers and streams. 9 13 degrees C was the temperature used by Newton in the 2015-2017 remand cases on Whychus Creek to show compliance with the no net loss standard. Current data shows mean temperature of 9.3 degrees C. The lower the temperature the greater the benefits provided. 10 Since the amounts cannot be measured, they cannot be verified and are simply theoretical. As such, whether positive or negative they are considered as no change. 11 As recorded by OWRD staff and noted in Exhibit 6. 12 Lucius Caldwell PhD., Four Peaks Fish Biologist analyzed the impacts. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHIBI 11 Page 13 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 10 While transferring water right certificates require no OWRD mitigation, changes in groundwater discharge could occur when moving from one location to the other that could affect compliance with DCC 18.113.070(D). In the CGE Memo dated August 12, 2022, the results of Yinger 2008 and the USGS report of 2004 provided the base from which we estimated the impacts from Thornburgh's pumping and the benefits resulting from stopping pumping at the transfer wells. The results were incorporated into the original version of this 2022 FWMP. We subsequently retained Resource Strategies, Inc. (RSI) to provide more specific information on thermal impacts based on flow data estimated in the CGE Memo 1. RSI used the QUAL2Kw, developed by the Department of Environmental Quality to assess impacts of the pumping and all mitigation on the Deschutes River from Wickiup Reservoir to Lake Billy Chinook, and in Whychus Creek from Sisters to the Mouth. RSI reported those results in the memo Flow and Temperature Modeling of the Deschutes River, dated October 2022 (RSI-1). As mitigation (both M & m) in the 2022 FWMP is largely groundwater sources, Thornburgh retained Four Peaks Environmental Consulting to evaluate the impact of both the Thornburgh pumping and the cessation of pumping from the transfer well locations using the 2017 USGS GSFIow Model. The 2017 USGS GSFIow modeling program was developed by the USGS in conjunction with OWRD. It provides the most sophisticated and reliable means of determining the impacts of changes in groundwater discharge on stream flows in the Deschutes Basin. Additional details of the USGS model are included in the Four Peaks GSFIow Memo. ODFW subsequently requested additional information on specific impacts and benefits of the groundwater pumping and transfers. This information was provided to ODFW by Four Peaks. This data showed the transfers alone (w/o the surface water mitigation) resulted in net increases to flow in the Deschutes River from Crane Prairie to Lake Billy Chinook, a very minor decrease in flows on the Little Deschutes (excluding the 200 AF of LeBeau water) and Crooked Rivers, and an increase in flows in Whychus Creek from Sisters to its confluence with the Deschutes River, including increases in flows to the springs between Alders Springs and the mouth. The Whychus Creek increased discharge was due to the cancellation of the Dutch Pacific water right alone, excluding the benefits of the TSID water which has already been determined to achieve compliance with the no net loss/degradation standard. This information was provided to ODFW. With new groundwater flow data from Four Peaks, RSI completed additional modeling to determine overall stream flows including flows from surface water mitigation and the resultant changes to temperature. The results of RSI's additional modeling were reported in Part II - Impacts of GSFIow-Based Changes in Stream Discharge, Dated October 22, 2022 (RSI-2). RSI-2 shows the addition of the LeBeau water south of LaPine, on average results in, increased flows to the river from there to Lake Billy Chinook, while the TSID water also provides additional cool water mitigation from Sisters, Oregon to the mouth. With all the "mitigation" included in the 2022 FWMP, the RSI-2 thermal and flow modeling shows an increase of flow and a decrease of temperature in all stretches of the Deschutes measured, including at Benham Falls, below Bend, near Lower Bridge, and near Culver. See RSI-2, Table 2, pg. 9. The benefits shown are accomplished with mitigation of 1,217 AF versus pumping of 1,460 AF. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHI131 11 Page 14 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 11 Further, of the 937 AF of water already owned by Thornburgh and available for use, 200 AF is surface water not being pumped from the river south of LaPine13, while 737 AF is groundwater that remains in the aquifer to flow to the streams, including the Deschutes River, Whychus Creek, and the Crooked River to increase flows and provide thermal benefits, long before the resort creates any impacts on the stream. This "advance" or "excess mitigation" achieved by not pumping the 937 AF of water rights accumulates benefits for decades14 until the impacts from pumping are fully felt in the stream. As is discussed in more detail below this excess mitigation (benefits) accumulate to a substantial amount providing benefits to the streams and fisheries resources for years in advance of full pumping occurring at the Thornburgh Resort. This "excess mitigation" benefit is not relied on by the scientific modeling efforts that demonstrated compliance with the no net loss/degradation standard. All modeling assessed the impacts only after the full effects of the Thornburgh's maximum pumping have been achieved. Because of the efficacy of the present plan, the 1,217 AF already mitigates for 119% (w/out the TSID or 198% with it) of the impacts to springs and seeps15. Also, any remaining mitigation or transfer water will come from within the General Zone of Impact and will not create an adverse impact on the fisheries habitat or the benefits shown herein. G. Fish Habitat Potentially Affected by Ground Water Use During the consultation process in 2008, ODFW identified two specific concerns with respect to potential impacts of ground water pumping on fish habitat: First, the potential for flow reduction due to hydraulic connection that could impact flows necessary for fish and wildlife resources in the Deschutes River system; and second, the potential for an increase in water temperature as a result of flow reductions from ground water pumping. In preparation for this 2022 FWMP Thornburgh discussed the changes with ODFW to understand what areas would currently be of concern. While the area from Lower Bridge to Lake Billy Chinook on the Deschutes is still important, other areas were also of concern. This included flow limitations on the Deschutes River from Bend to Lower Bridge, on Whychus Creek from Camp Polk Road upstream to Sisters, and in Indian Ford Creek, that empties into Whychus Creek. It also included 6 areas shown to have spring discharge, or cold water refugia, two each on Whychus Creek, the Deschutes and Crooked Rivers. This plan takes all those areas into account. In the 2008 process, ODFW identified six species of fish that could potentially be impacted: Redband Trout, Bull Trout, Brown Trout, Mountain Whitefish, Summer Steelhead and Spring Chinook. While relevant to consider, more important is the habitat itself. In Gould v. Deschutes County, 233 Or App 623, 227 P3d 758 (2010) the Oregon Court of Appeals found that the no net loss standard refers to habitat, stating: 13 Thornburgh may allow fanners affected by the Habitat Conservation Plan and/or drought conditions to use some portion of water it doesn't currently need to authorize pumping on a temporary basis. When providing water for farm drought relief, that portion of Thornburgh's water will not be instream. Only the LeBeau water will be used for this program. 14 Earlier CGE Memo dated August 12, 2022, noted this could take up to 95 years but assumed 50 years conservatively. 15 This is regardless of how the water is used, whether transfer, cancellations, or transfer instream. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHI13I I 1 Page 15 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 12 "Thus, the context of DCC 18.113.070(D) strongly suggests that "fish and wildlife resources" refers not to species of fish and wildlife, but to the habitat that supports fish and wildlife. In light of that context, we conclude that DCC 18.113.070(D) allows a focus on fish and wildlife habitat to establish that "[a]ny negative impact on fish and wildlife resources will be completely mitigated so that there is no net Toss or net degradation of the resource." That standard may be satisfied by a plan that will completely mitigate any negative impact on the habitat that supports fish and wildlife, without showing that each individual species will be maintained or replaced on a one-to-one basis." In its consultation with Thornburgh regarding these issues, ODFW recognized that the OWRD groundwater mitigation program was specifically designed to identify and mitigate for the impacts of flow reduction because of new groundwater pumping in the basin. Although the OWRD rules and USGS study on which the rules are based do not directly address temperature issues, ODFW also recognized that with the flow replacement required under OWRD rules the potential impact to temperature because of the Thornburgh project — or any similar individual project — is expected to be negligible. However, ODFW expressed a concern about the potential for cumulative impacts from on -going groundwater development in the basin, over time. Although cumulative impacts may be a concern, Thornburgh does not need to mitigate for the impacts of others in order to achieve compliance with the no net loss standard. That standard is based solely on impacts created by Thornburgh's groundwater pumping which were acknowledged to be negligible in 2008. ODFW reviewed the 2008 FWMP and determined that it would, without placing TSID mitigation water in Whychus Creek, offer a net benefit for fish habitat. Nonetheless, TSID mitigation water was required by the County's hearings officer. On appeal of the FMP and 2008 FWMP opponents claimed without success, that the TSID mitigation water was "hot water" that would harm fish habitat in lower Whychus Creek, and that temperature impacts (of 0.1 degree C) to the Deschutes River violated the no net loss standard. As a result of the challenges, NCI undertook extensive mass balance analysis in 2015-2017 of the impacts without mitigation that showed maximum thermal impacts of 0.004 degrees C in Whychus Creek under the peak summertime temperatures and the lowest summertime flows. NCI also provided an analysis of the TSID mitigation that showed keeping water instream in upper Whychus Creek offsets the thermal impact of groundwater pumping by the resort and slightly reduces the temperature of water in lower Whychus Creek, more than 15 miles downstream'. The NCI studies resulted in affirmance of the FWMP because it demonstrated compliance with the no net loss standard. The principle illustrated by the results of the 2015-2017 studies — that increasing the flow of rivers and streams upstream by not diverting for irrigation use both increases volume and lowers temperatures downstream — is also a principle adopted in this 2022 FWMP17. From the 16 The TSID mitigation reduced temperatures slightly throughout Whychus Creek starting from the TSID diversion where the water was left in stream. 17 In addition to the TSID water this plan also will leave 200 AF of water in the Little Deschutes River south of LaPine. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com bXHIBI I 1 Page 16 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 13 point that surface water withdrawals cease and aren't being pumped from surface water, stream flows are increased reducing thermal impact, and decreasing how much or how fast stream temperatures rise, in turn lowering stream temperatures downstream. Thornburgh also retained Four Peaks to evaluate the impacts of the 2022 FWMP on the fisheries resources. Lucius Caldwell, Ph.D., prepared 4 different reports that analyzed the impact to fisheries habitat as follows: a. Evaluation of the Fish habitat Impacts of Proposed Groundwater Pumping at Thornburgh Resort Project (Four Peaks Fish 1), that was based on the flow and thermal impacts of the results of RSI-1, b. Updated Evaluation of the Fish Habitat Impacts of Proposed Groundwater Pumping at Thornburgh Resort Project, to include Modeled Changes in Surface Water Resulting from Changes in Groundwater Discharge, dated October 24, 2022 (Four Peaks Fish 2). This report analyzed the impacts following completion of the RSI-2 report that was based on the Four Peaks GSFIow report. c. Evaluation of Flow and Temperature Mass Balance Calculations of the Little Deschutes River dated October 24, 2022 (Four Peaks Fish Little Deschutes). This analyzed impacts to the Little Deschutes River based on GSFIow data prepared by Four Peaks and the thermal mass balance analysis completed by Cascade Geoengineering, and: d. Evaluation of Flow and Temperature Mass Balance Calculations of the Crooked River dated October 24, 2022 (Four Peaks Fish Crooked River). This analyzed impacts to the Crooked River below Osborne Canyon and at Opal Springs based on GSFIow data prepared by Four Peaks and the thermal mass balance analysis completed by Cascade Geoengineering. In total, Four Peaks concluding the following: • Little Deschutes River -below LaPine: May include a slight flow increase (0.2-0.8 cfs) that improves habitat quantity slightly and a slight decrease in habitat quality, • Deschutes River -Benham Falls: A slight increase in habitat quantity and improvement in habitat quality, • Deschutes River -below Bend: Zero to a very slight increase in habitat quantity and zero to a very slight improvement in habitat quality, • Deschutes River -near Lower Bridge: A very slight increase in habitat quantity and habitat quality will be unaffected to a slight improvement due to reduction in temperature, • Deschutes River -near Culver: A very slight increase in habitat quantity and improvement in habitat quality, • Whychus Creek: A slight increase in habitat quantity and improvement in habitat quality, • Crooked River -Osborne Canyon: Flows will be reduced an average of 0.07%, while temperature will be reduced an average of 0.001%, amounts not likely to cause a reduction in habitat quality or quantity, and: • Crooked River -Opal Springs: Flows will be reduced an average of 0.02%, while temperature will be reduced an average of 0.003%, amounts not likely to cause a Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHII3I 11 Page 17 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 14 reduction in habitat quality or quantity. In all cases the values listed above are too small to measure. See Four Peaks Fish reports. In recent discussions ODFW voiced concerns about specific impacts to discharges at 6 spring and seep locations ODFW felt would provide cold water refugia, 2 each on the Deschutes River, 2 on Crooked River, and 2 on Whychus Creek, the latter they were interested in receiving further temperature analysis on. Four Peaks and RSI provided further materials that, as expected, showed increased flows in each of the spring site at Whychus Creek and the Deschutes River along with very slight reductions in the Crooked River. For example, the average reduction to groundwater in any one cell measured by the GSFLow model was -0.008 cfs at Osborne Canyon and -0.011 cfs at Opal Springs, amounts that are immeasurable and not scientifically meaningful18. In sum, the expert reports show a slight benefit in net habitat quantity and quantity. H. Thornburgh Mitigation: DCC 18.113.070(D) - The No Net Loss Standard. The proposed mitigation measures are designed to ensure no net loss of habitat quantity or quality and net benefits to the resource and are comprised of three categories including: A) elements that reduce demand on water resources and thus reduce impacts on the fisheries habitat (Item 1 below): 1. limit groundwater pumping to a maximum of 1,460 AF annually, which is more than a 30% reduction in originally approved water usage. B) elements that ensure compliance with the no net loss standard of DCC 18.113.070 (D) (Items 2-5 below): 2. Use 1,217 AF of water rights described herein to authorize pumping of groundwater from wells on the Thornburgh property by transfer, cancellation or other permanent mitigation (e.g., mitigation credits). 3. Comply with requirements for Water Right Permits, Certificates, or Transfers of water rights described herein, or others hereinafter acquired. Provide mitigation when needed in advance of pumping as required by OWRD mitigation rules. 4. For additional supply or mitigation over the water rights specifically identified in this plan, use mitigation credits, BFR surface water, BFR ground water, or any other water source in the Deschutes General Zone of Impact that will discharge water into (or leave it in) the Deschutes or Crooked Rivers or their tributaries, to supply or mitigate for any unmet needs the resort will have. The amount of water needed is the 1,460 AF of total pumping less the amount of water transferred, cancelled, or converted to mitigation credits, and: 5. Provide 106 AF of mitigation in Whychus Creek from the TSID diversion downstream by funding the completed TSID piping project called for by the 2008 FWMP that completely mitigates all impacts to Whychus Creek. C) Elements that provide advance or excess mitigation not needed to meet DCC 18.113.070(D) (Items 6-7 below). "Tetra Tech in their 2017 report, page 8, cited the EPA 2003 report which noted that temperature changes less than 0.25 degrees C were of no consequence to fish. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHIt3l 11 Page 18 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 15 6. Let unused water rights remain in the groundwater or stream to increase flows and reduce temperatures of the streams in advance of creating impacts except as provided to others for drought relief at Thornburgh's sole discretion. 7. Thin up to 5,000 acres of Juniper forests onsite and on BLM Lands. Section A: 1. Limit Pumping to a Maximum of 1,460 AF Annually: Ensure all pumping for the resort does not exceed a maximum combined volume of 1,460 AF. This is more than a 30% reduction in the amount of water Thornburgh is currently approved to use. This will dramatically reduce the level of potential impacts, creating less demand and strain on the region's water resources. To ensure compliance, Thornburgh will submit as part of the annual Mitigation Report summaries of the resort's annual water reports that are required to be provided to OWRD. These summaries will detail the resort's annual water use for any permit supplying water to the Thornburgh Resort. Section A Anticipated Results: A reduction of more than 31% of the pumping volume and nearly 35% reduction in the consumptive use of the Thornburgh Resort. This reduction reduces every impact that Thornburgh's water usage could possibly create and is the driving principle behind this amended 2022 FWMP. Section B: 2. Use OWRD Water Rights Certificates and Permits for Pumping or Mitigation: Thornburgh will use the OWRD water rights certificates, permits, and approvals described in Section B above and on Attachment 1 to allow it to pump groundwater to serve Resort uses. As the water rights listed Thornburgh currently owns 937 AF with another 280 AF under contract for a total of 1,217 AF19 as follows: a. GW Certificate 94948, Transfer T-13703. Tree Farm, 327.5 AF. b. SW Certificate 96192 & 96190. Big Falls Ranch (BFR), 614.4 AF, 360 AF owned, 254.4 AF under contract. This is Deep Canyon Creek surface water with a groundwater POA. c. SW Certificate 95746, Transfer application T-13857. LeBeau, 200 AF. d. GW Certificate 87558. BFR, 25.6 AF of groundwater is under contract. e. GW Certificate 89259. This is a groundwater right for 49.5 AF Thornburgh owns. All these water rights are Certificated and do not require further OWRD mitigation. Thornburgh will either transfer these certificated rights to be used directly to pump groundwater from Thornburgh wells or it will use them indirectly as mitigation for groundwater pumping at Thornburgh either under permit G-17036, permit application 19 Thornburgh has another 6 AF in temporary credits leased from the DRC which may be terminated at some point in the future. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com bXHIBl 11 Page 19 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 16 G-19039, or an alternate replacement permit for a lower volume of pumping. A list of possible permits and applications is provided above in Section C and on Attachment 1. 3. Comply w/OWRD Mitigation Rules: Provide Mitigation Before Pumping: Any mitigation required for any groundwater permit, whether permanent or as a Limited License that appropriates water from wells at the Thornburgh property, will be provided prior to pumping water under that permit, as required by OWRD rules. Mitigation, when or if needed, will be provided by either cancellation of water rights in lieu of mitigation, or transferring the existing surface water rights to instream rights. By providing mitigation water from the conversion or transfer of existing water rights, Thornburgh will be restoring natural stream or groundwater flows to the system at or above an area of impact from Thornburgh wells, much of which will occur during the time period when stream flows are typically the lowest and temperatures are warmest. 4. For Remaining Water Use BFR, COID, or Other Water Benefitting Deschutes or Crooked Rivers: The water rights described in 1. above will provide up to 1,217 AF of the resort's total water needs of 1,460 AF leaving at least 243 AF of additional water needed.20 For any additional water needed over and above the 1,217 AF, Thornburgh will use some combination of: i) BFR surface water (Deep Canyon or Makenzie Canyon); ii) BFR ground water; iii) COID mitigation water or credits; or iv) other ground or surface water or credits that both discharge water into either the Crooked River or Deschutes River or its tributaries and meet the requirements of the OWRD mitigation program. Analysis by Cascade Geoengineering, LLC shows: i) using additional BFR water with groundwater points of appropriation will comply with the no net loss standard and have no impact to fish habitat; and ii) the transfer of other groundwater rights that discharge cool groundwater into area streams and rivers will provide thermal benefits to the rivers and streams; and iii) other surface water placed instream above areas of concern will provide thermal mass that will serve to cause cooling during the critical summertime period when stream temperatures are highest and flows the lowest. Regardless of where the remaining 243+/- AF (1,460-1,217) 21 of water rights or mitigation comes from this plan has already mitigated for the full impacts to seeps and springs.22 5. Provide 106 AF of Additional Whychus Creek Mitigation (TSID): 20 If there was some reduction in the amount Thornburgh is allowed to transfer under the LeBeau water right, like the 7% reduction expected in the NUID transfer, the amount of additional water required could be increased somewhat. 21 The numbers contained in this, and the following section account only for the 1,217 AF of water described above, and do not include additional water or mitigation flows of at least 243 AF, which will further increase stream flows, irrespective of the source or location of that mitigation. 22 If all 243 AF of additional water was from a surface water source the resulting % of total mitigation comprised of groundwater would be 69.7%, still greater than the 0% of groundwater and 61.7% of cool Deep Canyon water in the 2008 FWMP. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com hXHII3I 11 Page 20 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 17 Thornburgh has already provided 106 AF of Three Sisters Irrigation District water for additional mitigation in Whychus Creek as was required by Condition #39 of the FMP approval. Thornburgh has made the required payment arrangements, TSID has completed the project, and OWRD has executed the final order transferring the water instream. Section B Anticipated Results: Collectively, the measures in this Section B demonstrate Thornburgh Resort's continual compliance with Deschutes County's no net Toss/degradation standard in DCC 18.113.070(D), specifically as it pertains to impacts to fisheries and aquatic habitat in the following ways: a. Provide a net increase in the discharge of cold ground water via seeps and springs stream flow in the Deschutes River from Crane Prairie reservoir downstream to Culver, including at two spring locations of concern to ODFW above and below the mouth of Whychus Creek, b. Provide a net increase in the discharge of cold ground water via seeps and springs in Whychus Creek from Sisters to the mouth, including at important "ODFW" spring locations at Alder Springs and the mouth, c. Add cold groundwater discharge versus the 2008 FWMP to the Crooked River, including in important "ODFW" spring areas near Osborne Canyon and Opal Springs, d. Increase net flows in the Little Deschutes River from south of LaPine into the Deschutes River, e. Increase net flows of the Deschutes River from the confluence with the Little Deschutes onto Lake Billy Chinook, f. Reduce net stream temperatures throughout the Deschutes River as noted in "e" above, g. Increase net flows of Whychus Creek from Sisters to the mouth, h. Reduce net stream temperatures of Whychus Creek as noted in "g" above, i. Reduce the thermal impacts in the Crooked River as compared to the 2008 FWMP to levels immeasurable, including in spring areas noted by ODFW, j. Increase habitat quantity in the Little Deschutes River, k. Increase habitat quantity and improve habitat quality in virtually all areas of Whychus Creek and the Deschutes River, and: I. Reduce the impacts in the Crooked River over the 2008 FWMP to levels so small as to be immeasurable, and not likely to cause a change in the quality or quantity of fish habitat. Further details are found in CGE Memos 1 and 2, Four Peaks GSFIow, RSI Memo's 1 and 2, and Four Peaks Fish Memo's 1 and 2, and Four Peaks - Little Deschutes and Crooker River Fish Memo's. These elements a through I above are based on steady state conditions, the point in the future when 100% of the impacts from Thornburgh pumping have been realized in the form of streamflow reductions. As noted here and in previous memos this event may not occur for decades into the future after Thornburgh's pumping begins. Measure C-6 below discusses the excess or advance mitigation being provided to the fisheries resource. net benefits to the fisheries resources. Section C: 6. Leave Water Rights Instream or In the Aquifer Until Needed for Resort Uses: Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHI131 11 Page 21 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 18 Thornburgh intends to pump water only as needed. When not needed, it will allow mitigation water flow underground and in the area's streams and rivers, providing advance benefits for impacts to occur at some point in the future. Advance or excess mitigation accumulates from providing mitigation prior to pumping but also during the transient period before impacts are fully realized in the stream. Anticipated Results: The net results described in Section B above assume steady state conditions, the point in time when full pumping is occurring and the reductions in groundwater discharge into the streams are fully realized. As noted above and in the CGE memo, steady state conditions will not occur for as long as 95 years or more'. Until then, Thornburgh will provide substantial amounts of excess mitigation, likely resulting in un-required benefits during this timeframe. Assuming it will only take 50 years for steady state conditions to occur, Cascade has calculated that Thornburgh will discharge 71,771 AF of water into the system while creating impacts/withdrawals on the system of 47,117 AF, and excess benefit/discharges of 24,654 AF additional water over impacts in that transient than required. In sum the benefits provided by this are over 52% greater than the impacts created in the first 50 years of this 2022 FWMP, and equal nearly 17 years of full pumping of 1,460 AF. Increasing stream flow 52% more than the impacts will translate into further temperature reductions in each of the streams affected. This situation will be most pronounced (nearly 100% excess) in the early years and gradually narrow as the difference between benefits and impacts narrows until steady state conditions are attained. During periods of severe water shortage, Thornburgh may work with OWRD as to request usage of excess mitigation water that may be used to benefit farmers in significantly impacted irrigation districts, including the North Unit Irrigation District that supports up to 58,000 acres of farmed land in Jefferson County. As discussed above, Thornburgh has applied to temporarily transfer 200 AF of water to the North Unit Irrigation District. Under this exception, until the water rights are pumped by Thornburgh or used as mitigation, Thornburgh would like to be allowed to offer free use of its LeBeau irrigation water to farmers severely impacted by drought. Thornburgh does not intend this as a business, rather it is envisioned as an act of goodwill and a benefit to actual farm uses in the area. Further, any water excesses provided by Thornburgh is purely excess mitigation water that is not needed to mitigate for Thornburgh pumping. As such it will not have a negative impact on fisheries habitat although it could have a very positive impact on farmers. This temporary usage by others may be accomplished by temporary transfers on an annual basis when excess mitigation may be available. 23 The 2004 USGS model estimated impacts of 100% were reached in year 80 after full pumping is begun. It will take at least 15 years, and perhaps 20-25 years until Thornburgh is fully occupied and pumping at those levels. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com bXHII3I 11 Page 22 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 7. Thin Juniper Forests Onsite and On BLM Lands. 19 Thornburgh, as part of its development and wildlife mitigation plans, will thin up to 5,000 acres of Juniper forests, returning the land to the condition of the historic old growth forest that was prevalent in the 1930's. This measure is required and detailed as part of the approved Wildlife Mitigation Plan that addresses impacts to terrestrial wildlife habitat. While discussed here it is not separately required by the 2022 FWMP nor is it needed to achieve compliance with the no net loss/degradation standard for aquatic wildlife, including fish. Juniper is a native species that, has increase substantially throughout Oregon because of increased human settlement within Oregon. Juniper is now often seen as invasive by means of a likely 10-fold increase in prevalence that has been shown to reduce water capture, retention, and recharge to the area surrounding these increased stands of Juniper. Studies show a strong correlation between Juniper removal and increased spring discharges with estimates that may be upwards of 1 acre- foot of increased discharge resulting from the removal 4-5 acres of Juniper forests. Deschutes and Crook Counties are both looking at Juniper removal as a method to benefit water. Anticipated Results: Experts, such as Tim DeBoodt, Crook County Natural Resource Policy Coordinator, report that the reduction of between 4-5 acres of Juniper trees can save, or return 1 AF of water, ideally in the form of increased ground seepage that may result in increases in spring flow. While it is hard to quantify the exact water savings that will occur, with studies showing the possibility to save up to 1 AF for every 4-5 acres of Juniper reduction, thinning thousands of acres could provide a significant benefit to nearby stream flows. VII. CONCLUSION DCC 18.113.070.D requires that any negative impact on fish and wildlife resources be completely mitigated so that there is no net loss or net degradation of the resource. This Addendum to the Thornburgh Wildlife Mitigation Plan, referred to as the 2022 FWMP, amends the 2008 FWMP (as it was updated) and addresses potential impacts to fishery resources because of ground water pumping and identifies specific mitigation measures. The potential for loss of habitat due to reduced surface water flows was quantified in connection with the OWRD review of Thornburgh's application for a water right permit. Under OWRD rules, Thornburgh is required to fully mitigate for consumptive use associated with Resort development. Consumptive use represents the amount of water not otherwise returned to the Deschutes River system after initial appropriation or diversion. The OWRD mitigation program is based on estimates of impact and modeling, the program is specifically intended to replace stream flows lost due to groundwater use. The 2008 FWMP was developed in consultation with ODFW to address two specific areas of concern regarding the potential for negative impacts: the potential for a loss of habitat due to reduced surface water flows in the impacted areas, and the potential for loss of habitat due to increased temperature from reduced stream flow or loss of inflow from springs. As part of the development of this plan, discussions with ODFW took place to understand the current priorities Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXH 1131 1 1 Page 23 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 20 to ODFW to protect species and related habitat. While the area of the Deschutes River from Lower Bridge to Lake Billy Chinook remained important to ODFW, other issues presented concerns to the agency. ODFW expressed concern with limited flows of the Deschutes River between Bend and the Lower Bridge area, and of Whychus Creek between Sisters and Camp Polk Road and in Indian Ford Creek. Also important to ODFW was the distance in the stream the mitigation change will improve, as longer stream reaches are better. As described above this 2022 FWMP has numerous sources providing benefits and mitigation, several that provide benefits over a significant distance, including areas of concern to ODFW. For example: 1) the LeBeau water increases flow in the Deschutes River for 137.7 miles; 2) The Tree Farm water is cold groundwater discharges that increase flows in the Deschutes River from Bend downstream through the stretch of concern to ODFW and onto the lake; 3) The Dutch Pacific water is benefitting Indian Ford Creek and Whychus Creek around Sisters to the mouth; 4) TSID water adds cool surface water above Sisters to the mouth of Whychus Creek at the Deschutes River. All of these sources increase flows that add to the thermal mass which in turn reduces temperatures in their respective stream and river reaches, ultimately providing benefits down to Lake Billy Chinook. The potential for an increase in stream temperature resulting in a negative impact to fish and wildlife resources was also evaluated. Regarding Whychus Creek, the TSID water was shown to fully mitigate any potential peak temperature impact and lower the stream temperatures in not only Lower Whychus Creek, but throughout Whychus Creek to the mouth, which includes the area of concern to ODFW. Increasing the groundwater discharges from the Dutch Pacific water will further increase the reduction in temperature and the thermal benefits being provided to Whychus Creek. Regarding the Deschutes River, the 2008 FWMP increased flows between Bend and Lake Billy Chinook by adding warmer surface water in Bend and cooler surface water from Lower Bridge to Lake Billy Chinook. These additions resulted in temperature change of 0 degrees C above Lower Bridge down towards Steelhead Falls, and an increase in the temperature of 0.1 degrees C at Steelhead Falls to below Whychus Creek. Even with those slight increases in temperature providing cool water mitigation equal to 105% of the impacts to seeps and springs fully mitigated for any reduction in groundwater. Increasing the percentage of benefits to seeps and springs coming from cool water sources (includes groundwater, Deep Canyon Water, TSID water) to 195% presently from 155% in the 2008 FWMP naturally provides far greater benefits than previously approved. In developing recommendations for this plan, it was clear any potential change in stream temperature attributable to Thornburgh's proposed ground water use under steady state conditions, whether positive or negative, would be at levels not measurable with available equipment and technology. Although the changes being discussed will, in almost all cases, result in an increase in stream flows and a reduction in stream temperatures, they are not significant enough to result in any quantifiable negative impact to fish habitat at any time. However, the massive influx of excess flows provided during the transient period will further increase stream flows and further lower temperatures in all the affected reaches for decades Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHII3I 11 Page 24 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 21 into the future as the actual impacts to stream flows gradually increase from Thornburgh's groundwater pumping until steady state conditions are attained. By committing to fully utilize the water sources as described herein, and to comply with the conditions of this 2022 FWMP, any potential negative impacts to fish habitat resources because of the Thornburgh Resort development will be completely mitigated such that there is no net loss or degradation of habitat quantity or quality. In fact, it will likely provide a slight net benefit when steady state conditions are achieved many decades from now. During the transient period, Thornburgh will provide significant additional benefits to the quantity and quality of fish and aquatic habitat. As such this 2022 FWMP will exceed the no net Toss/degradation standard set by DCC 18.113.070(D). Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXHII31 11 Page 25 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 ATTACHMENT 1 THORNBURGH WATER RIGHTS INVENTORY Certificated Water Rights, Transfers & Cancellations. 22 1. Surface Water Certificate 95746 (4/30/1902) and Transfer application T-13857 (LeBeau) —This certificate authorizes the use of 4 acre-feet per acre of irrigated land of surface water from the Little Deschutes River, a tributary of the Deschutes River, to irrigate 50 acres of land, for a total authorized use of 200 AF of water. Transfer application T-13857 has requested the POD of this right currently at River Mile 56 on the Little Deschutes arm of the Deschutes River be moved to a POA on wells located at the Thornburgh Resort, located generally west of RM 143, roughly 10524 river miles from the point on the Deschutes River closest to the Thornburgh Resort. Further, the transfer seeks to change in the character of use from irrigation to Quasi -Municipal. These proposed changes to the certificated water right do not require OWRD mitigation. This water is currently in the river and is being allowed to flow from its point of diversion all the way to Lake Billy Chinook, about 137.7 river miles. See Map 2. The added flow will provide thermal benefits that cool the Little Deschutes arm of the Deschutes River and the Deschutes River throughout those reaches. 2. Surface Water Certificates 96192 and 96190 (4/13/1967) and Transfer T-12651 to Groundwater POA — Big Falls Ranch ("BFR") (Deep Canyon Creek Groundwater POA). These certificates authorize the use of 4 acre-feet of surface water per acre of irrigated lands from Deep Canyon Creek onto of 153.6 acres of land, for a total volume of 614.4 AF of water. This is certificated water that requires no OWRD mitigation. The POAs of this water are wells located at Big Falls Ranch. 90 acres of this irrigated land has been assigned to Pinnacle Utilities, LLC as of the date of this 2022 FWMP and is currently left in the ground. An application to transfer all 153.6 acres of water to wells at the Thornburgh Resort along with a change to the character of use from irrigation to Quasi - Municipal is pending. Transferring this water will leave it in the ground at Big Falls Ranch that because of the hydraulic connection to the streams will increase flows of 11 degree C groundwater into the Deschutes River, Whychus Creek, and the Crooked River. See Four Peaks GSFlow Report. This cool groundwater will provide thermal benefits cooling the rivers and creeks and providing greater benefits than provided by the 2008 FWMP. In the alternative, if not approved for transfer, this water right could be cancelled in lieu of mitigation for any groundwater permit or Limited License application to serve the Resort. Cancelling a groundwater certificate leaves the water in the aquifer so it can return to streams and rivers. Lastly, the POA could be returned to a POD in Deep 24 The Little Deschutes arm, merges into the Deschutes River at RM 192.5 on the Deschutes River. LeBeau POD is at RM 56 on the Little Deschutes arm, which is roughly at the equivalent of Deschutes RM 246.5. The Thornburgh POA is west of Deschutes RM 143. Round Butte Dam is roughly 137.7 miles from the LeBeau POD. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com EXH I I3I 11 Page 26 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 23 Canyon Creek from where it could be transferred to an instream right with mitigation credits issued for groundwater or limited license applications's. 3. Ground Water Certificate 87558 (BFR) — This certificate authorizes the use of 4 acre-feet per acre of irrigated land from groundwater wells located at Big Falls Ranch. The certificate allows the ranch to use a total of 25.6 AF of water to irrigate 6.4 acres. This certificated water requires no OWRD mitigation. Thornburgh intends to transfer all 6.4 acres of irrigated lands to wells at the Thornburgh Resort and to change the type of use from irrigation to Quasi -Municipal. Leaving this 11 degree C groundwater in the ground at Big Falls Ranch will increase flows in the same manner as the BFR water in #2 above. See Map 2. As noted above it cannot be converted to an instream right the same way surface water rights can but it could be cancelled in lieu of mitigation if needed. 4. Ground Water Certificate 94948 (1/30/1995), Transfer T-13703 (Tree Farm) — This certificate authorizes the appropriation of 0.453 cfs Year -Round for Quasi - Municipal uses for a total of 327.5 AF of water use. This certificated water right does not require mitigation. Transfer T-13703 was approved by OWRD which changed the POA of this water right from wells located in the Tree Farm subdivision west of Mt. Washington Drive in Bend to wells on the Thornburgh property. It also changed the Point of Use (POU) from the Tree Farm subdivision to Thornburgh wells. The transfer will result in cessation of pumping at the present POA which increases the flow of cold 11 degrees C groundwater into the Deschutes River by .453 cfs. At present it can be used per the transfer order, or in the alternative it could be cancelled in lieu of mitigation for groundwater permit or Limited License applications. An application for a permanent transfer will soon be filed as well. 5. Ground Water Certificate 89259 (3/18/1998) — Dutch Pacific — 16.5 acres or 49.5 acre-feet of irrigation water (ground) that was pumped from a well in Sisters. This is a certificated water right that doesn't require mitigation. The place of impact from pumping at this location is in Whychus Creek and Indian Ford Creek that flows into Whychus Creek near Sisters. See Four Peaks GSFIow. For approximately 3 years Thornburgh has allowed all 16.5 acres of this water to remain instream and is presently cancelling it in -lieu of mitigation. This effectively moves the point of appropriation and place of use which will provide added flow of cold 11 degrees C groundwater into Indian Ford Creek and Whychus Creek from above Sisters down Indian Ford and Whychus Creek to the mouth and on into the Deschutes River towards Lake Billy Chinook. This 16.5 acres of irrigation (49.5 AF) of cool water will provide thermal benefits to the 25 While our analysis does not rely on the flows provided by Deep Canyon Creek to achieve compliance with the no net loss/degradation test, changing the mitigation source from 13-degree surface water flows in the creek to 11 degrees C groundwater flows into area waterways is clearly beneficial. Also not accounted for is the fact that pumping from Deep Canyon Creek has completely ceased, allowing Deep Canyon Creek to flow to the Deschutes River. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com LXHIBI 11 Page 27 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 24 stream that will cool the creek and mitigate for all the impacts to Whychus Creek from Thornburgh pumping. Leaving this water in the stream will add flow and cool Whychus Creek from above Sisters all the way to the Lake. 6. Three Sisters Irrigation District Mitigation Water: 106 acre-feet (1.51 cfs) of Whychus Creek irrigation water (surface). This is surface water diverted at the TSID diversion near the town of Sisters. See Map 2, pp., 5. It is being left in the creek at that point and will provide flow and thermal benefits of the cool 13 degrees C surface water to Whychus Creek all the way to the Deschutes River and then downward into Lake Billy Chinook. The TSID mitigation is 1.51 cfs of flow that is left in the creek for a portion of the irrigation season. In low flow years that may only be 90 days. In heavy flow years that may be 150 days or so. Depending on the flow in Whychus Creek, the actual volume of mitigation water from the rights being purchased by Thornburgh could be as high as 200-250 AF, instead of the 106 AF required to mitigate as determined by Yinger 2008. As noted above, the 106 AF need was determined by Yinger who modeled stream impacts using 2,355 AF of water at 100% consumptive use whereas Thornburgh's current plan reduces pumping to 1,460 AF and consumptive use to 882 AF. The TSID water was shown to mitigate for the full impact of 106 AF of stream reduction at Whychus Creek. The TSID mitigation secured by Thornburgh, is presently in the creek. 7. Temporary Mitigation Credits (DRC) — 6 acre-feet of temporary credits from the Deschutes Resource Conservancy have been in place since 2013. For nearly 10 years these credits have increased flow to the Deschutes River in advance of pumping any groundwater under the OWRD permit. Excess mitigation has been accumulating since then. Thornburgh intends to cancel the use of these temporary credits at some point in the future. They are not considered in the efficacy of this 2022 FWMP rather are excess or advance mitigation. Groundwater Permits, GW, and LL Applications: 8. Ground Water Permit G-17036 — This permit authorizes up to 9.2 cfs and 2,129 AF for Quasi -Municipal uses including irrigation of golf courses, homes and commercial areas, and maintenance of reservoirs. Period of use is Year -Round except for the seasonal limits placed on irrigation use by the permit. The rate and volume are further limited by the corresponding mitigation provided. The maximum volume for irrigation of 320 acres of golf courses shall not exceed 717 AF annually. The amount of golf course irrigation specifically under this right is limited to a diversion of 2.24 AF for each acre irrigated during the irrigation season of each year. The amount of water allowed to be used for reservoirs under this permit is 246 AF. The fully developed Mitigation Obligation for this right is 1,356 AF annually, to be provided within the General Zone of Impact. Mitigation is to be provided prior to each stage of development under the permit. In 2013, Thornburgh posted 3.6 acre-feet of mitigation credits (6 AF of water) as the initial mitigation and the permit was issued. Due to unforeseen delays, Thornburgh was required to apply for an extension of the permit, which was granted in 2018 with OWRD Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com LXHI131 11 Page 28 of 28 FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT November 7, 2022 25 issuing a Proposed Final Order and Final Order granting approval. When a suit was filed against OWRD at the Oregon Court of Appeals OWRD withdrew its final order and sent the approval (as noted in the Proposed Final Order (PFO)) to a contested case hearing. On July 26, 2022, OWRD issued a superseding proposed final order proposing denial of the extension, but the permit remains non -cancelled (valid) as of the date of this 2022 FWMP. Thornburgh filed a protest to this PFO seeking a contested case hearing which is pending. Permit G-17036 is the first permit Thornburgh acquired. Due to litigation opposing the permit and the lengthy delays involved at OWRD, Thornburgh developed alternatives to pump groundwater from the Resort's wells with little reliance on this or other OWRD groundwater and limited license permits, or applications as described below. 9. Ground Water Permit Application G-19139 (pending) — This permit application was for the use of 9.28 cfs of year-round Quasi -Municipal water having the same limitations and mitigation requirements as permit G-17036. It was filed at the suggestion of OWRD staff as a potential replacement to permit G-17036 pending the contested case. The POA of this application is 8 wells located on the Thornburgh property. The application is pending. If not approved, Thornburgh will file a petition for judicial review. 10. Limited License Application LL-1879 -- This limited license application was for the use of 4.5 cfs of year-round water. The application was filed to provide preliminary use of some of the water permitted by G-17036 pending the resolution of the contested case on the extension. OWRD denied the application, and Pinnacle has filed a petition for judicial review in Deschutes County Circuit Court. If the limited license is approved, this will require mitigation for the life of the limited license, which can be done more informally than is required for permanent permits or certificates. 11. Limited License Application LL-1917 (pending) — This limited license application was for the use of 0.453 cfs of year-round water. The amount requested is the same amount of water as will be transferred under the authority of T-13703. It was filed as an alternative to the use of the water in T-13703, as a challenge to the transfer is reviewed by the court system. The application is pending. If approved, this will require mitigation for the life of the limited license, which can be done more informally than required for permanent permits or certificates. Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com COMMUNITY DEVELOPMENT APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS FEE: __$3,344 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22, 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Central Land & Cattle Company, LLC, Kameron DeLashmutt, and Pinnacle Utilities, LLC Appellants Name (print): Phone: (541-3)0-8479 Mailing Address: 2477 NW Canyon Drive City/State/Zip: Redmond, OR 97756 Kameron1959@gmail.com Email Address: Land Use Application Being Appealed: File No. 247-22-000678-MC Property Description: T Appellants Signore: l Range 12 Section 00 Tax Lot See below Date: 12/30/2022 By signing this application and paying the appeal deposit, the appellant understands and agrees that Deschutes County is collecting a deposit for hearing services, including "whether to hear" proceedings. The appellant will be responsible for the actual costs of these services. The amount of any refund or additional payment will depend upon the actual costs incurred by the county in reviewing the appeal. Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each recording copy). Appellant shall submit the transcript to the planning division no later than the close of 117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005 ��(541) 388-6575 cdd@deschutes.org 0 www.deschutes.org/cd the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date set for receipt of written records. NOTICE OF APPEAL Please see attached letter. Tax lots 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900, 8000. Schwabe WILLIAMSON & WYATT . December 30, 2022 Board of County Commissioners PO Box 6005 Attn: BOCC Bend, OR 97708-6005 Board of County Commissioners c/o Caroline House, Senior Planner PO Box 6005 Attn: Community Development Department Bend, OR 97708-6005 RE: Notice of Appeal - File No. 247-22-000678-MC Our File No.: 135849-262760 Chair Adair, Commissioners DeBone and Chang: Kenneth Katzaroff Admitted in Washington and Oregon T: 206-405-1985 C: 206-755-2011 KKatzaroff@SCHWABE.com Our office represents Central Land & Cattle Company, LLC, Kameron DeLashmutt, and Pinnacle Utilities, LLC (collectively "Applicant") in File No. 247-22-000-678-MC (the "Application"). This Notice of Appeal letter is being filed with a completed Planning Division notice of appeal form and filing fee in the amount of $3,3441 to perfect an appeal of the hearings officer's decision denying approval of the Application. The Application seeks to modify a discrete aspect of the Thornburgh Destination Resort's ("Thornburgh" or the "Resort") final master plan ("FMP"), the 2008 Fish and Wildlife Mitigation Plan ("2008 FWMP"), to accomplish two things: 1. Reduce authorized water use by roughly one third by reducing certain water intensive amenities and agreeing not to build an optional golf course, and 2. Modify the 2008 FWMP to an updated and revised 2022 Fish and Wildlife Mitigation Plan ("2022 FWMP") that provides better and more systemic benefits to Central Oregon rivers and creeks while also meeting the County's DCC 18.113.070.D "no net loss or degradation" standard ("NNL Standard"). For the reasons described below, the Applicant requests that this Board accept this appeal of the hearings officer decision. Applicant also requests that the Board conduct the hearing on the record, as opposed to a de novo review process. 1 The filing fee amount was calculated and provided by email from Senior Planner Caroline House on December 27, 2022. Board of County Commissioners December 30, 2022 Page 2 The hearing below was more than four hours in length. Therefore, Applicant also requests that the Board waive the transcript requirement consistent with DCC 22.32.024.D. I. REASONS TO CONSIDER APPEAL ON THE RECORD Applicant requests that the Board review this appeal on the record and not de novo. This request is made for several reasons. First, this Board has heard a number of Thornburgh matters in recent years. Most recently, the Board heard an appeal in 2020 regarding a site plan approval for Thornburgh's required golf course, which the Board approved. That case was affirmed by LUBA and the Court of Appeals and the Supreme Court denied review. Second, this Board conducted an on the record review of a Thornburgh appeal in 2019 that was comprehensive and efficient. Since that time, the County has issued six additional land use decisions related to Thornburgh that addressed water and mitigation issues. Each of those six land use decisions was affirmed by LUBA and the Court of Appeals. As of the date of this appeal letter, three decisions were also challenged on Petitions for Review to the Supreme Court, which denied review.2 The land use process to this point has been extensive. Opponents, primarily Ms. Gould, continue to raise issues that are rejected by LUBA, the Court of Appeals, and the Supreme Court. The opposition is ideological, not legally meritorious. An on the record appeal is warranted given these previous obstructionist appeals. Third, the record established in this case —so far —is voluminous. For instance, perennial opponent Nunzie Gould and her lawyer Jennifer Bragar made a single record submittal during the post -hearing comment period that was over three thousand pages in length. That submittal included expert testimony and addressed all aspects of the Application. Thornburgh's response was also robust. The Hearings Officer found: "The Hearings Officer finds that the Applicant's technical evidence was prepared by credentialed experts who provided an extreme level of analysis and detail. The Hearings Officer finds opponents [sic] expert evidence is not nearly as comprehensive as Applicant's. The Hearings Officer finds opponents [sic] expert evidence is less focused on the specific water sources proposed by Applicant and their impacts on fish habitat. The Hearings Officer finds opponents [sic] technical 2 These decisions include the golf course site plan, overnight lodging unit site plan, modification of overnight lodging unit ratios and bonding requirements, phase A-1 tentative plan, welcome center site plan, and phase A-2 tentative plan. Each of these decisions has been affirmed through the Court of Appeals. The golf course site plan, overnight lodging unit site plan, and modification of overnight lodging unit ratios decisions were denied review by the Supreme Court. schwabe.com Board of County Commissioners December 30, 2022 Page 3 evidence is less credible and persuasive than the technical evidence proved by Applicant." Emphasis added. Hearings Officer decision, p. 36. Besides Thornburgh, Applicant's counsel has litigated multiple cases against Ms. Bragar. In each of those separate cases, Ms. Bragar attempts to "bury the opposing side" with paper. This tactic also results in burying the decision maker in paper, creating a lack of clarity regarding relevant issues, and creating additional administrative burden.3 Given that the record has already been so robustly established, there is no need to submit additional evidence and this Board should hear the appeal on the record as opposed to subjecting itself to wading through an additional 3,000-+ page of new submittals. Fourth, as is outlined in issues for appeal below, the "meat" of the appeal relates primarily to interpretive issues of the County's procedural code. Although the Hearings Officer ultimately ruled in Thornburgh's favor, these interpretive issues could create other problems down the line for the County's other existing destination resorts. As they represent interpretative issues of the County's procedures ordinance, no new evidence is necessary and legal briefing is sufficient. Lastly, the amount of attention garnered by each Thornburgh application and process is significant. The Hearings Officer noted that several hundred persons weighed in at or before the hearing, and more than 100 filed additional comments during the open record period. The hearing below was also more than four hours in length. The public has had its say. If it wishes to participate again, it may do so in writing as described in DCC 22.32.030.A. II. REASONS TO ACCEPT THE APPEAL Thornburgh is grateful to the Hearings Officer for his consideration of the thousands of pages of documents already in this record. However, the Hearings Officer made a few key errors that led to the denial of the Application. Thornburgh requests that the Board correct those errors. A. Interpreting the Procedures Ordinance — DCC 18.113.080, DCC 22.36.040, and Thornburgh FMP Condition 1 The Hearings Officer was tasked with the difficult task of interpreting DCC 18.113.080, DCC 22.36.040, and Thornburgh's FMP Condition 1.4 While we agree with the outcome of the Hearings Officer's interpretation, we believe that the interpretation may be inconsistent and is 3 It's worth noting that this can create a significant burden for the County staff in preparing the LUBA record. Historically, Ms. Bragar has routinely objected to the record at LUBA as a delay tactic focusing on form over substance without making an honest effort to resolve record issues without filing an objection. In at least one Deschutes County case this has led to LUBA completely dismissing Ms. Bragar's record objections. 4 DCC 18.113.100 is also relevant when determining the procedure to be followed when proposing a modification of a destination resort FWMP and should be considered by this Board. schwabe.com Board of County Commissioners December 30, 2022 Page 4 likely to lead to additional problems in the future — for other destination resorts and not just for Thornburgh. The Hearings Officer's finding that "[s]ite plan or preliminary plan approval documents may well be dependent upon the CMP and/or FMP" is inconsistent with DCC 18.113.040(C). DCC 18.113.040(C) requires conformance with the FMP. The Hearings Officer's finding is also inconsistent with the Board's holding in DC Document No. 2014-431 (BOCC Loyal Land/Gould decision) that "[t]he FMP *** incorporates all the requirements of the CMP and becomes the guiding approval document for the project pursuant to DCC 18.113.040.B." These inconsistencies should be addressed and resolved by the Board to eliminate confusion over whether the code or the hearings officer's decision dictate the scope of review for Resort site plan, subdivision, and FMP modification applications. Additionally, on page 20, the Hearings Officer found that while DCC 18.113.080 provided a way to modify a conceptual master plan ("CMP") approval, it does not contain a process to modify a FMP. This finding is inconsistent with numerous County decisions that have viewed DCC , 18.113.080 as a relevant approval criterion for modifications of Resort FMPs.5 This finding may also create confusion. DCC 22.36.040 provides a modification process for all land use approvals unless a more specific provision in the zoning ordinance provides a different process. It has been routinely applied by the County in its review of FMP modification applications. We ask the Board to clearly state that DCC 22.36.040 allows the approval of modifications to FMPs. Further, although we agree with the Hearings Officer that the applicable law allows Thornburgh to modify the FWMP, we disagree with the required process. At page 20, the Hearings Officer determines that "any decision to change the FMP by changing the FWMP necessarily implicates the CMP." We disagree. The CMP is only implicated when an element or elements of the CMP are changed that alter the "type, scale, location, phasing or other characteristic of the proposed [Resort] development such that the findings of fact on which the original approval [CMP decision] was based would be materially affected." In this instance, the CMP deferred findings related to creation of a FWMP until the FMP stage. As a result, no findings in the CMP decision are affected by a revised FWMP. The CMP findings require a public hearing prior to approval of the FWMP — a requirement has been met for both the 2008 and 2022 FWMP. The FWMP, also, mitigates for Resort development — it is not a "characteristic" of the Resort development so it cannot be considered a "substantial modification" of the CMP. "Characteristics" are typically defined as "a feature or quality" [of Resort development] and not the mitigation for impacts of such features. 5 This includes at least one decision that was issued while this case was pending before the Hearings Officer. Therefore, the County has issued conflicting decisions regarding the same procedural code just within the last few months. This creates a ripe constitutional issue under Village of Willowbrook v. Olech, 528 US 562 (2000) (Equal Protection Clause protects individuals from disparate treatment by local government). schwa be.com Board of County Commissioners December 30, 2022 Page 5 Thornburgh also agrees with the Hearings Officer's outcome related to DCC 22.36.040 and FMP Condition 1. However, in an attempt to harmonize DCC 18.113.080, DCC 22.36.040, and FMP Condition 1, the findings made by the Hearings Officer are confusing and hard to follow. We believe the findings can be simplified while still leading to the same outcome and providing better defensive posture for interpretation before LUBA. Lastly, staff highlighted (as did the Applicant) that the County's destination resort procedure and modification ordinance has been applied unevenly and inconsistently. As such, it is reasonable to request the Board to reconcile and fully and finally interpret these provisions. B. The NNL Standard Despite finding that the Application "potentially" met the NNL Standard, the Hearings Officer denied Thornburgh's request to reduce water use and provide better mitigation — mitigation that will increase stream flow while reducing stream temperatures. This appears to be because, primarily,, the Hearings Officer did not understand two key facts. First, Thornburgh owns the majority of the "mitigation" water needed. Second, Thornburgh is already providing the majority of the benefits proposed by owning and not pumping mitigation/transfer water, far in advance of Resort water use that may impact area rivers and creeks. This appears to have caused confusion over the clear and objective reporting and compliance measures proposed by Thornburgh. The Hearings Officer, at page 40, also raised concerns that existing FMP Condition 38 will be difficult to enforce. This concern may be resolved by simple revisions to clarify the 2022 FWMP enforcement mechanisms or by adding a condition of approval to the FMP to specifically address the issue of compliance with the 2022 FWMP. We believe this can be done in a closed record review by the Board. The Hearings Officer also correctly found that an agreement with ODFW regarding the proposed mitigation measures was not necessary but failed to make a decision on the merits of ODFW's concerns based on the comprehensive response provided to all ODFW concerns by Thornburgh's experts. This is puzzling given that the Hearings Officer found that Thornburgh "provided a thoughtful response to ODFW comments." Hearings Officer Decision, p. 42. Ultimately, the Hearings Officer faults the applicant for not agreeing to toll the 150-day clock by more than three weeks to provide additional time for ODFW to respond to Thornburgh's expert evidence and finds ODFW "did not have an opportunity to respond to Applicant's *** comments." In fact, all but two of the issues ODFW raised in its November 7 letter were previously raised in its September 28 and October 21 letters and responded to by Applicant in its October 13 response to ODFW and the 15 technical documents providing ODFW extensive detailed analysis. Furthermore, ODFW had an equal opportunity to file its own comments regarding the same issues during the rebuttal period if it had continuing concerns but did not do so. As ODFW stated in its November 7, 2022 letter, Thornburgh began consulting with ODFW in July of 2022, which was before the Application was even submitted. Additional information was provided to ODFW up and until the open record period below was closed. ODFW stated that the proposal had "merit" but failed to provide any additional comments or questions to Thornburgh, presumably because — as the Hearings Officer noted — Thornburgh provided a "thoughtful response." The schwabe.com Board of County Commissioners December 30, 2022 Page 6 Hearings Officer should have made a decision based upon the substantial evidence before him — evidence that he noted provided an "extreme" level of detail. As noted by the Hearings Officer ODFW approval of the FWMP is not necessary. The NNL Standard is a County standard only. The issues raised by ODFW should have been resolved based on the evidence in the record. Thornburgh provided more than 15 technical reports that the Hearings Officer found to provide an "extreme" level of detail and a "comprehensive response" to ODFW issues. The Hearings Officer determined it was a "close call" — one that is not close when Thornburgh's expert evidence is properly considered. Thornburgh, therefore, requests that the Board hear this appeal on the record and determine that Thornburgh has met the NNL Standard. C. Published Notice At page 10, the Hearings Officer found that notice of the land use hearing was not timely published based on misinterpretation of DCC 22.24.030 and DCC 22.08.070 to require a 21-day notice period rather than the 20-day notice period set by DCC 22.24.030. This interpretation should be corrected to provide clear direction to County staff that 20 days is the correct notice period for published notice of land use hearings. III. CONCLUSION For all of the foregoing reasons, we request that the Board accept Thornburgh's appeal and hold and on the record hearing. This would require legal briefing of issues in the record only, thereby substantially simplifying the Board' review process and administrative burden. Very truly yours, SCHWABE, WILLIAMSON & WYATT, P.C. Kenneth Katzaroff Enclosures PDX\ 135 849\262760\JKKA\3 5533075.1 schwabe.com REC a .v. IVED .BAN 0 3 Deschutes County CDD a�11-d3- obcc'-A APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS FEE: $3,344.00 EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Annunziata Gould Mailing Address: 19845 J W Brown Road Email Address: Nunzie@pacifier.com j bra 60-- G 247-22-00068-MC Phone: ( 541 ) 420-3325 City/State/Zip: Bend, OR 97703 rnrAs+ Le- ci.k CO111 Land Use Application Being Appealed: Property Description: To nship 15 Range 12 Section, �00 Appellants Signature,; .NAik, 1�,t L�, E� o Cz�% Tax Lot See List on Following Page Date: 20"2-3 By signing this application and paying the appeal deposit, the appellant understands and agrees that Deschutes County is collecting a deposit for hearing services, including "whether to hear" proceedings. The appellant will be responsible for the actual costs of these services. The amount of any refund or additional payment will depend upon the actual costs incurred by the county in reviewing the appeal. Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each recording copy). Appellant shall submit the transcript to the planning division no later than the close of 117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 @ cdd@deschutes.org www,deschutes,org/cd the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date set for receipt of written records. NOTICE OF APPEAL Property Description Assessor's Tax Map: 15 12 00, Tax Lots: Tax Lot: 5000 Tax Lot: 5001 Tax Lot: 5002 Tax Lot: 7700 Tax Lot: 7701 Tax Lot: 7800 Tax Lot: 7801 (a portion) Tax Lot: 7900 Tax Lot 8000 (a portion) Please see attached letter for appeal grounds. Jennifer M. Bragar Attorney Admitted in Oregon, Washington, and California jbragar@tomasilegal.com January 3, 2023 BY HAND DELIVERY Deschutes County Board of County Commissioners c/o Caroline House Deschutes County Community Development Department 117 NW Lafayette Avenue Bend, OR 97708-6005 Re: Appeal of Hearings Officer's Decision on File Number: 247-22-000678-MC Dear Chair Adair and Commissioners: IVE JAN 03 2023 Deschutes County CDD 121 SW Morrison Street, Suite 1850 Portland, Oregon 97204 Tel 503-894-9900 Fax 971-544-7236 www.tomasilegal.com This office represents Annunziata Gould ("Appellant") who lives at 19845 J W Brown Road, Bend, Oregon 97703. This letter is submitted in support of Ms. Gould's appeal application for the above -referenced file and the Hearings Officer Decision dated December 19, 2022 ("Decision"), with mailed notice sent by the County on December 20, 2022. The application submitted by Central Land & Cattle Company, LLC, Kameron DeLashmutt, and Pinnacle Utilities, LLC (collectively, the "Applicant") referenced as County File No. 247-22-00678-MC, and involves the property located at Assessor's Tax Map 15-12-00, Tax Lots 5000, 5001, 5002, 7700, 7701, 7800, a portion of 7801, 7900, and a portion of 8000 ("subject property"). Please include this appeal in the record for the above referenced file. While the Appellant agrees with the outcome reached by the Hearings Officer that the Applicant cannot meet the no net loss/degradation of fish and wildlife resources under DCC 18.113.070(D), there are additional grounds for denial. The County should clarify that much more work needs to be done in order for the Applicant to obtain approval, if such approval is even possible considering the status of the resort approvals and steps necessary to consider this application to modify the Thornburgh Destination Resort Conceptual Master Plan ("CMP"), Final Master Plan ("FMP"), and the Fish and Wildlife Mitigation Plan ("FWMP") (collectively, the "application"). Appellant requests de novo review by the Board under DCC 22.32.027 because the Hearings Officer's findings about the applicable criteria are inconsistent, inadequate, are not supported by substantial evidence, fail to adequately support a choice among conflicting evidence or where conflicting evidence was weighed, such weight was unreasonable in light of the TOMASI BRAGAR DUBAY January 3, 2023 Page 2 competing evidence, and/or involve an incorrect interpretation of the law. The de novo review will allow Appellant an opportunity to confront the mitigation plan, rather than suffer through a piecemeal incomplete submittal. Had the Applicant submitted its full and complete 2022 FWMP with all supporting technical documents in August 2022, the Appellant's course of actions would have been different. But, that failure by the Applicant should not be rewarded with a limited hearing before the Board of County Commissioners. The appeal should be granted to prepare an Order denying the application on these additional grounds: • A new CMP application is required because the original CMP has not been initiated. The Hearings Officer's findings on this issue are conclusory and unsupported, and misconstrue Central Land and Cattle Co. v. Deschutes County, 74 Or LUBA 236 (2016). Appellant correctly analyzed LUBA's holding, and provided her accurate discussion of these matters in the Appellant's November 7, 2022 Open Record Letter. As argued to the Hearings Officer below, all of Appellant's other appeal grounds are in the alternative (i.e. assuming arguendo, the CMP has been initiated). • The Hearings Officer erred in allowing the Applicant to narrowly define and take a piecemeal approach to review of the application by ignoring substantial evidence that the FWMP symbolized, implied, and its approval would otherwise involve significant changes to the approved CMP and FMP. • A new CMP and a new FMP are required because the application materially affects findings of fact on which the original approvals were based, as summarized in pages 18- 28 of the Appellant's November 7, 2022 Open Record Letter,1 explaining the applicability of DCC 18.113.080, DCC 22.36.040, LUBA's holding in the OLU Modification case, and Condition 1 of the CMP and FMP. Condition 1 in the CMP can only contextually be referencing a new CMP application as it is a standalone condition of the CMP and no other generic application. Similarly, Condition 1 of the FMP can only contextually be referencing a new FMP application as it is a standalone condition of the FMP. Both the CMP in its Condition 37, and the FMP in Condition 38 independently address the FWMP approval process, which is not implicated in Condition 1. Relatedly, staff was correct that all CMP approval criteria must be considered, and the Hearings Officer was incorrect in concluding otherwise. • The Hearings Officer erred in ruling that no participant identified original findings that would be materially affected. Appellant identified the following such findings: o The Applicant possesses no water right to meet DCC 18.113.070(K) and the FWMP cannot be modified without water being available for the resort's consumption. o The economic analysis and findings for compliance with DCC 18.113.070(C) would be materially affected. The Hearings Officer also erred in failing to make 1 Appellant is represented by this office, Jeffrey Kleinman, and Karl Anuta. References to Appellant's letters herein are to this office's submittals unless otherwise indicated. TOMASI BRAGAR DUBAY January 3, 2023 Page 3 findings regarding Appellant's arguments about the shortfalls of the economic analysis that would result from the application. o The Water System Mater Plan and Sewer System Master Plan approved in the CMP and FMP would need to change before water usage impacts could be assessed for a modification of the FWMP. The Hearings Officer erred in failing to make findings analyzing Appellant's substantial evidence, instead relying on whether the Applicant literally proposed changes to its sewage disposal obligations, which the Applicant did not, as part of its piecemeal strategy. Once again Applicant commits its own error in undertaking this backward approach. o The OWRD process for an approved water right to make water available for resort consumption (or any mitigation) has not been completed and no replacement of the CMP-identified water source has been submitted or approved. • The Hearings Officer erred in interpreting away the phrase "substantial change" by "harmonizing" the code provisions with the conditions of approval in a way to limit the changes he would consider under the test. The Hearings Officer ignored substantial evidence in the record by narrowly construing the Applicant's ask as simply lowering the amount of annual water use at the resort, and changing the source of FWMP mitigation water. But, it is impossible to change the source of FWMP mitigation water without first knowing where the resort will permanently source its water consumption supply through a completed OWRD review process. That critical question can only be examined through a new CMP that satisfies DCC 18.113.070(K). Characterizing Applicant's 2022 FWMP as a "change in the source of FWMP mitigation water" is an oversimplification of what is really a veiled selection of a new water source. The Applicant seeks to achieve a fait accompli to have County approval for a new water consumption supply source through this piecemeal approach. By ignoring this ruse, the Hearings Officer would allow a false mitigation plan to be used later to justify any change in water consumption source without water being available now, and without a full examination of the habitat impacts of use of such new water source. • In addition, even if the decision were characterized as only amending the FMP, which would be error, the changes proposed here require amendments to the CMP that have not been submitted. See discussion of DCC 18.113.100 in the Appellant's November 7, 2022 Open Record Letter. • For similar reasons stated in the previous bullet points and all Appellant's other arguments that describe this application as a new proposal, the Hearings Officer erred in concluding that the application is not a substantially new proposal requiring a new application and as such, is prohibited from being processed as a modification under DCC 22.36.040(B). In addition, as set forth herein, the significant additional impacts on surrounding properties also disqualify this application from being processed as a modification under DCC 22.36.040(B). As a result, under DCC 22.36.040(C), the application should be treated as a new proposal and the Hearings Officer erred in reaching a contrary conclusion. TOMASI BRAGAR DUBAY January 3, 2023 Page 4 • All of the Hearings Officer's analysis to limit or not consider DCC 22.36.040(C) review based only on the Applicant's characterization of the application "ask" is flawed for all the reasons discussed previously and in Appellant's submittals regarding the failure to analyze the implications of the approval requested without a permanent authorized water supply including, but not limited to understanding where and how wastewater will be handled, and impacts to surrounding property. The Hearing's Officer has improperly shifted the burden to Appellant and the public, but even so, Appellant successfully shifted the burden back to show that there is substantial evidence that a new application should be required, and that the new separate applications needed are for a CMP, an FMP, and then an FWMP. • The Hearings Officer erred in not requiring the proposed FWMP to comply with FMP Condition of Approval 38 that expressly requires removal of certain wells that are now proposed to be used for the resort water system; and in not fully analyzing the impact of additional wells required for use of the proposed but not available water from the water rights summarized in the 2022 FWMP. Further, there is no substantial evidence of the location and use of the wells in connection with the 2022 FWMP, and there is no current Water System Master Plan. Relatedly, the Applicant's proposal would put it out of compliance with CMP Condition of Approval 11. o The Applicant's inability to obtain a permanent water supply that includes identification, analysis, and examination of well impacts means that the no net loss standard cannot be fully analyzed, nor can the impact of those wells on surrounding property owners' wells. • The Applicant's proposed actions in the 2022 FWMP directly conflict with the current FWMP, agreed to by the Oregon Department of Fish and Wildlife ("ODFW"), by making one of the mitigation sources unavailable. The 2022 FWMP is a farce because the Applicant proposes to use the Deep Canyon Creek water directly by way of transfer to the resort for consumption and still pretend that they will mitigate for their groundwater permit consistent with the no net loss/degradation standard. The current FWMP required this very same Deep Canyon Creek water as the source of mitigation for resort's groundwater extraction under its CMP and FMP that rely solely on the groundwater in G-17036. Applicant continues to rely upon Water Rights Permit G-17036 but does not demonstrably provide mitigation water for this approved water source in the CMP and FMP. The Applicant cannot consume the same water at the resort and use it for mitigation for the resort's consumption at the same time. This is yet another reason that a new CMP application, followed by a new FMP application, and a new FWMP application are required. • The Hearings Officer erred in not requiring the Applicant to reach agreement with the ODFW before submittal of the 2022 FWMP or even during the review process. Notably, the Applicant completely refused to allow extra time that ODFW requested for its continued review of Applicant's materials. Condition 38 expressly requires the Applicant to reach agreement with ODFW regarding mitigation of impacts of its water consumption on anadromous fish habitat and other wildlife. Under Condition 38, Applicant had the TOMASI BRAGAR DUBAY January 3, 2023 Page 5 burden to unequivocally establish agreement with ODFW—and the only logical way to do so would be by giving ODFW the full amount of time to review all technical material in advance of the submittal. But, Applicant's approach is to inch forward with piecemeal approvals based on half-baked technical reports submitted during the County's public review process to prevent any party, including ODFW, from fully participating because of Applicant's self-imposed timeline. As a result, the Applicant did not comply with Condition 38 to reach agreement with ODFW. • The Hearings Officer erred in not requiring the Applicant to obtain BLM's agreement with the 2022 FWMP, a direct conflict with FMP Condition of Approval 38. • The Hearings Officer erred in too narrowly defining surrounding property under DCC 22.36.040. As Mr. Anuta and multiple people testified on this record, many nearby but nonadjacent property owners have had to deepen wells on their property for drinking and farm uses. In any event, it is impossible to assess impacts to surrounding property because the Applicant failed to submit all its materials in the record or to undertake the necessary assessments to analyze such impacts on any surrounding properties without regard to the scale (missing materials are summarized throughout Appellant's submittals in the record by her counsel and E-PUR). • Appellant's expert testimony from Mr. John Lambie, PE, Mr. Anuta, and others so undermines the Applicant's expert that no reasonable person could rely on the Applicant's expert testimony to reach the conclusions that the Hearings Officer reached regarding: o The record evidence shows it is incontrovertible that there is no water available as required by DCC 18.113.070(K). As extensively discussed by myself, Mr. Anuta, and Mr. Lambie, and as Oregon Water Resources Department ("OWRD") has unequivocally stated, the ground water right identified in the CMP and in the current FWMP is not a viable source of water because it has expired and OWRD has proposed to deny an extension of time to perfect the right.' Absent an extension, even the Applicant admits it cannot pump water under the right. o The Hearings Officer erred in concluding the Applicant's commitment to make annual reports to limit pumping of water under the 2022 FWMP is supported ,when the Applicant unequivocally made the entire FWMP optional in its application submittal. An optional plan does nothing to ensure the no net loss/degradation standard will be met, let alone that the 2022 FWMP could be deemed reasonably certain of success. o The Applicant repeatedly claims that its only source of water is the Deschutes Formation Aquifer, but this is incorrect. Applicant's own materials show that the their water right transfer application under T-14074 would transfer Deep Canyon Creek surface water, rather than groundwater. In addition, the Applicant's proposed 2 See OWRD's May 4, 2022 letter included in Appellant's November 7, 2022 Open Record Letter, Attachment 16, pp. 16, and other denials described by Mr. Anuta in Attachment 16. TOMASI BRAGAR DUBAY January 3, 2023 Page 6 LeBeau transfer T-13857 would utilize a surface water source, the Little Deschutes River. Moreover, neither of these transfer applications has been (or is likely to be) approved. In reality, none of this water is available to the resort. o The Applicant claims that the resort could pump winter water from the Dutch Pacific water right (Cert. 89259). However, a transfer of that water right to the resort was already summarily denied.3 Even if a new transfer application were to be filed, and thereafter approved (which is highly unlikely given the prior denial), winter pumping would not be allowed. This water is also unavailable to the resort. o The Applicant must be required to revise the CMP's Sewer System Master Plan as its piecemeal planning is no longer consistent with the CMP. Specifically, the CMP's Sewer System Master Plan's Tables 1, 2 and 7 for the southern basin where Phase A is located must be brought up to date and this can only occur through a decision by Deschutes County. The County is the only jurisdiction that has authority to comprehensively plan for overall sewage capacity under DCC 18.113.070(L). The Applicant's projected sewage flows in Tables 1 and 2 must be revised to account for the Applicant's increased density of development by equivalent dwelling unit ("EDU"). Table 7 does not account for the Applicant's lost area for sewage dispersal due to elimination of a golf course, and the Applicant does not demonstrate a revised dispersal area with capacity to discharge the projected sewage flow for either Phase A or full development. Based upon the areas for sewage dispersal identified in this record, the Applicant has not committed sufficient area for sewage dispersal consistent with Table 7 and thus the Sewer System Master Plan must be revised. Further, the mode of dispersal needs to be revised. Based on the evidence in this record, the resort does not have enough room in Phase A for a larger sewer treatment area. Current statements by the Applicant indicate that it intends to only use water for drip irrigation and not treatment in lakes, and this must be reflected in the Sewer System Master Plan. Further, the Sewer System Master Plan does not reflect dispersal by irrigation to match the seasonality of such irrigation, and the prohibition to irrigate in winter months. The Sewer System Master Plan must address capacity to handle wastewater in winter months. Nothing submitted so far seeks to amend this portion of the CMP to ensure compliance with DCC 18.113.070(L). The Applicant has not provided any technical evidence of inaccuracies in Mr. Lambie's analysis of the inconsistency of the 2022 FWMP with the CMP's Sewer System Master Plan. Notably, minimally treated effluent cannot be applied as general above -ground irrigation water despite the assertion of the Applicant in its rebuttal and final written argument. Moreover, the burden cannot be shifted to Appellant and the public to disprove the operability of the sewer system and impacts to surrounding properties until the Applicant submits a complete application with a revised Sewer System Master Plan. 3 See Attachment D to Attachment 38 to Appellant's November 7, 2022 Open Record Letter, and Attachment 38's discussion of this water right. TOMASI BRAGAR DUBAY January 3, 2023 Page 7 o The Water System Master Plan has to be updated from the 2008 FMP since a reduction in water use is what the Hearings Officer expects to occur. The Applicant's math does not make any sense when it argues that the resort's water use for three golf courses would change from 717 AF to 501 AF for only two golf courses; the Applicant has increased the projected consumption of water per golf course in the application. o The water supply requires resiliency, which means that the resort (like any municipality) has a water supply with water available for a minimum of 10 years. This is documented through a Water Management Conservation Plan ("WMCP"). The Applicant's 2022 WMCP admits that the groundwater right (G-17036) that it actually holds is expired and an extension would need to be granted by OWRD for that permit to be used.4 The 2022 WMCP also admits that the Applicant has only "applied for" other water rights.5 Moreover, Appellant filed a Petition for Reconsideration of the resort 2022 WMCP (the "2022 WMCP under reconsideration"). Notwithstanding this status, the amendment to the FWMP is also inconsistent with the 2022 WMCP under reconsideration. At best the Applicant has pending applications for temporary water transfers that could (perhaps) allow for a temporary 5-year water supply with no automatic or available extensions without a new application. This is inadequate to meet the water availability criteria for the CMP, let alone, stand as a basis for the amendment of the FWMP. The Applicant must have a permanent water supply solution. The Hearings Officer erred in failing to make findings as to the Appellant's arguments regarding the water supply resiliency requirements or the FWMP's inconsistency with the 2022 WMCP (or any other WMCP) in the record. o Appellant's and the Applicant's experts both agree that almost all of the water rights identified in the 2022 FWMP are going to impact flows in the Crooked River. OWRD has indicated repeatedly in its ground water reviews that such impacts are unacceptable and no new water rights are available in the Crooked River basin. The resort has not established that water is available to serve the resort under DCC 18.113.070(K). o The Applicant concedes that it does not have enough acquired water certificates for the proposed consumption in the FWMP, but even the partial amount it has obtained cannot be considered a feasible supply because OWRD recommends denial of so many of the Applicant's proposed transfers of water rights. • The Hearings Officer erred in failing to make findings regarding Appellant's arguments under DCC 22.20.015. 4 See Appellant's November 7, 2022 Open Record Letter, Attachment 16, pp. 9, and 29-61, particularly p. 40 (i.e. Anuta 11-4-22 Exhibit #3, 2022 WMCP p. 16, § 5.02 attached thereto). 5 See Appellant's November 7, 2022 Open Record Letter, Attachment 16, p. 9 and 29-61, particularly 45 (i.e. Anuta 11-4-22 Exhibit #3, 2022 WMCP p. 21, § 5.04 attached thereto). TOMASI B.RAGAR DUBAY January 3, 2023 Page 8 • The Hearings Officer erred in finding that the Applicant is not filing the application in lieu of an appeal. These matters were well briefed and explained in Appellant's November 7, 2022 Open Record Letter, pp. 9-13. While the Oregon Supreme Court has denied review in two of these cases in the site plan for 80 OLUs (322 Or.App. 11, rev den S069882) and the modification of the OLU ratio case (322 Or.App. 383, rev den S069813), several other cases remain pending Supreme Court Review. • The Appellant was substantially prejudiced by the Applicant's submittal process and decision to have the application deemed complete without providing all technical support for its proposal until the open record period. The Hearings Officer did not resolve the prejudice by extending the statutory open record period by 14 days, as the County staff did not have the opportunity to review, or to provide a professional opinion about the information submitted to the Hearings Officer (who deemed himself a layperson, and stated he was confused by the Applicant's submittals). o One element of the County's Goal 1 Citizen Involvement Plan is stated as follows: "Technical Information — Assure technical information is available in an understandable form. • Clearly written staff reports assure all information is available and comprehensible." As evident from the Hearings Officer's decision, the application was not provided in a complete manner to assure that technical information was available in an understandable form or allowed staff to prepare a written staff report that assured all information was available and comprehensible. Further, as evidenced in the Appellant's submittals in this record, the County did not comply with Goal 1 of its Comprehensive Plan, including implementation of Policy 1.2.3, because of staffs delay in posting the application materials by 17 days (and what would have been longer if Appellant's counsel had not inquired with County staff). o The proposed use, operating characteristic, intensity, scale, site layout and other matters criticized by Appellant could not be fully explored, set forth, or summarized since the Applicant did not submit the technical reports associated with the application until the hearing date on October 24, 2022, and beyond. Moreover, Applicant submitted integral correspondence with ODFW during the rebuttal period. thereby improperly foreclosing a public response. • The Appellant and public continue to be substantially prejudiced by the County's inaccurate Notice of Hearings Officer's Decision and its description of the Applicant's request. The Notice of Hearings Officer's Decision states: "Amend the Final Master Plan (FMP) for the Thornburgh Destination Resort by amending the Fish and Wildlife Management Plan (FWMP), and imposing TOMASI BRAGAR DUBAY January 3, 2023 Page 9 limitations on the scope of development and water use allowed by the Thornburgh Destination Resort." However, the application materials are clear that the Applicant sought to "Amend Thornburgh Resort CMP/FMP/FWMP." The County's limited notice of decision as only amendment of the FMP and FWMP is a mischaracterization of the application. Should the Board decide to hear the appeal on the record, then the foregoing appeal grounds should be included in the scope of the review. Appellant requests a waiver of the transcript requirement, under DCC 22.32.024(D), for efficiency purposes because the entire hearing was recorded. If, however, the parties wish to direct the Board to portions of the hearing, or to transcribe select portions of the hearing related to this application, such direction and/or partial transcripts can be provided as attachments to written argument submitted to this Board. Appellant reserves the right to file further written argument under DCC 22.32.027. Please provide a response as soon as possible regarding the requested waiver of the transcript requirement because, if it is necessary, the Appellant needs enough time to prepare it prior to the Board's hearing. Finally, Appellant requests a courtesy e-mail to her counsel (jbragar@tomasilegal.com) setting forth the date that the Board of County Commissioners intends to hold a work session on this appeal request. Enclosed, please find the appeal fee of $3,334.00 and appeal form. If no appeal is granted to any party, Appellant requests a refund of the appeal fee. Thank you. Sincerely, Jennifer M. Bragar Enclosures cc: (by e-mail) client Carol Macbeth Mailing Date: Tuesday, December 20, 2022 HEARINGS OFFICER DECISION FILE NUMBER: 247-22-000678-MC SUBJECT PROPERTY: The entirety of the Thornburgh Destination Resort located at: Address Deschutes Co. Assessor Map & Tax Lot Number 11800 Eagle Crest Blvd, Redmond, OR 97756 15-12-00, TL 5000 11810 Eagle Crest Blvd, Redmond, OR 97756 15-12-00, TL 5001 11820 Eagle Crest Blvd, Redmond, OR 97756 15-12-00, TL 5002 67205 Cline Falls Rd, Redmond, OR 97756 15-12-00, TL 7700 67705 Cline Falls Rd, Redmond, OR 97756 15-12-00, TL 7701 67555 Cline Falls Rd, Redmond, OR 97756 15-12-00, TL 7800 67525 Cline Falls Rd, Redmond, OR 97756 15-12-00, TL 7801* 67545 Cline Falls Rd, Redmond, OR 97756 15-12-00, TL 7900 67400 Barr Rd, Redmond, OR 97756 15-12-00, TL 8000** * A portion of this tax lot is not included in the FMP. ** Portions of this tax lot are not included in the FMP. OWNERS/APPLICANTS: Central Land & Cattle Company, LLC, Kameron DeLashmutt Pinnacle Utilities, LLC APPLICANT'S ATTORNEYS: J. Kenneth Katzaroff— Schwabe Williamson & Wyatt, PC Liz Fancher REQUEST: See Applicant's Summary of Modification Request below. STAFF CONTACT: Caroline House, Senior Planner Phone: 541-388-6667 Email: Caroline.House@deschutes.or RECORD: Record items can be viewed and downloaded from: https://www.deschutes.org/cd/page/247-22-000678-mc-thornburgh-destination-resort- modification-cm pfmpfwmp I. APPLICABLE CRITERIA Staff, in the Staff Report, set forth the following as applicable and relevant approval criteria. Applicant, Staff and persons in opposition disagreed as to which criteria should be considered relevant for the review of Applicant's 2022 FWMP modification proposal in this case. The Hearings Officer addressed the relevant approval criteria in various decision findings below. 1 Relevant Approval Criteria (per Staff Report): Deschutes County Code (DCC) Title 18, Deschutes County Zoning Ordinance: Chapter 18.113, Destination Resorts Zone Title 22, Deschutes County Development Procedures Ordinance: Chapter 22.04, Introduction & Definitions Chapter 22.08, General Provisions Chapter 22.20, Review of Land Use Action Procedures Chapter 22.28, Land Use Action Decisions Chapter 22.36, Limitation on Approvals II. BASIC FINDINGS LOT OF RECORD: The subject property has been verified as a legal lot(s) of record in previous land use decisions. LOCATION: The Thornburgh Destination Resort ("Resort") is comprised of a large tract of land +/-1,970 acres in size and includes several tax lots as shown in Table 1 and Figure 1 below. Table 1- Thornburgh Destination Resort Location Map Number & Tax Lot Address 15-12-5000 11800 Eagle Crest Blvd. 15-12-5001 11810 Eagle Crest Blvd. 15-12-5002 11820 Eagle Crest Blvd. 15-12-7700 67205 Cline Falls Rd. 15-12-7701 67705 Cline Falls Rd. 15-12-7800 67555 Cline Falls Rd. 15-12-78011 67525 Cline Falls Rd. 15-12-7900 67545 Cline Falls Rd. 15-12-80002 67400 Barr Rd. 1 A portion of this tax lot is not included in the Final Master Plan (FMP) approval. 2 Portions of this tax lot are not included in the Final Master Plan (FMP) approval 2 Figure 1 — Thornburgh Destination Resort Location Map 0 0.45 Miles SITE DESCRIPTION: The property described and displayed above (the "Subject Property) is approximately 3 miles west- southwest of the City of Redmond. The Subject Property includes variable topography, native vegetation, rock outcroppings and ridge tops. At this time, the Subject Property is largely undeveloped land. However, the Applicant has started construction of access roads, other infrastructure improvements (I.e., community water system, community sewer system, etc.), and a golf course pursuant to prior land use approvals. In addition, the Applicant has applied for building permits for utility facilities' and overnight lodging units ("OLUs"). The southeastern corner of the subject property is bisected by Cline Falls Road and Barr Road bisects the southwest corner of the Resort tract. 3 Staff (Staff Report, page 3) noted that these building permits are ready for issuance, but have not been issued at the time the Staff Report was written. The Hearings Officer is uncertain as to the status of the permits. 3 SURROUNDING USES: The surrounding lands, not including other tax lots within the Subject Property, are primarily comprised of tracts owned by the Federal Government, State of Oregon, or Deschutes County. Most of this public land is part of the Cline Buttes Recreation Area and is zoned Exclusive Farm Use — Sisters/Cloverdale Subzone (EFU-SC) or Open Space & Conservation (OS&C). Further northeast is the Eagle Crest Destination Resort, and a property with an approved Surface Mining site (Site No. 252) and Wireless Telecommunication Facility. To the east-northeast of the Subject Property are Rural Residential (RR10) zoned lots that are generally five (5) to ten (10) acres in size. Most of these properties are developed with a single-family dwelling and related accessory structures. RESORT LAND USE HISTORY: Staff, in the Staff Report, provided the following summary of the land use history associated with the Thornburgh Resort. The summary below is included only to provide the reader of this decision Staff's overview of the general scope of some of the applications, decisions and appeals associated with the Thornburgh Resort. Conceptual Master Plan (File No. CU-05-20): On February 16, 2005, Thornburgh Resort Company, LLC ("TRC") applied for the Resort Conceptual Master Plan (CMP) approval for the Thornburgh Destination Resort. The application was denied by the Hearings Officer on November 9, 2005. The Board of County Commissioners ("BOCC") issued Order Nos. 2005-143 and 2006-016 to call-up the Hearings Officer decision for review. On May 11, 2006, the BOCC approved the CMP. Annunziata Gould ("Gould") and Steve Munson ("Munson) appealed the BOCC decision to the Land Use Board of Appeals (LUBA/LUBA Nos. 2006-100 & 2006-101). LUBA remanded the BOCC decision on May 14, 2007 (Gould v. Deschutes County, 54 Or LUBA 2005 (2007)). The LUBA decision was appealed to the Court of Appeals. On November 7, 2007, the Court of Appeals reversed and remanded LUBA's decision (Gould v. Deschutes County, 216 Or App150, 171 P3d 1017 (2007)). The result was the BOCC decision in CU-05-20 approving the CMP was remanded to the County for further proceedings. On April 15, 2008, the BOCC issued its decision on remand, again approving the CMP (Order No. 2008-151). Gould and Munson appealed the BOCC remand decision to LUBA on May 6, 2008 (LUBA No. 2008-068). On September 11, 2008, LUBA affirmed the BOCC decision (Gould v. Deschutes County, 57 Or LUBA 403 (2008)). That decision was appealed to the Court of Appeals (A140139). On April22, 2009, the Court affirmed LUBA's decision (Gould v. Deschutes County, 227 Or App 601, 206 P3d 1106 (2009)). On October 9, 2009, the Oregon Supreme Court denied review (Gould v. Deschutes County, 347 Or 258, 218 P3d 540 (2009)). On December 9, 2009, the Court of Appeals issued its appellate judgement and the CMP received final approval as of December 9, 2009. CMP Initiation of Use (File No. DR-11-8): On November 1, 2011, TRC applied for a Declaratory Ruling to demonstrate the CMP had been timely initiated. The Hearings Officer found the CMP was timely initiated. The BOCC declined to hear the appeal and Gould filed a LUBA appeal. On appeal, LUBA remanded that decision (LUBA No. 2012-042). LUBA's decision was affirmed by the Court of Appeals, without opinion (Gould v. Deschutes County, 256 Or App 520, 301 P3d 978 (2013)). On remand, the Hearings Officer found the CMP was not timely initiated. TRC appealed the Hearings Officer's decision to the BOCC. The BOCC issued a decision finding the CMP was initiated before the two-year deadline expired. Gould appealed the BOCC decision to LUBA. On appeal, LUBA remanded this 4 decision back to the BOCC decision on January 30, 2015 (LUBA No 2015-080). However, LUBA's decision was appealed and the Court of Appeals reversed and remanded stating that the express language of the County Code requires Defendant to substantially exercise the permit conditions as a whole, and any failure to initiate development by fully complying with the conditions should not be the fault of the applicant, a determination of which must be based on more than just the complexity of the process. The Court also held that the County could not interpret the County Code contrary to a prior LUBA order in this same litigation, as the lower tribunal was bound to follow the appellate Court's Ruling (Gould v Deschutes County, 272 Or App 666 (2015)). Later, as part of the submitted application materials for the Golf Course Site Plan review, the applicant included the following clarification on the status of the remand: "Loyal Land has not initiated a review on remand. This application is moot, however, because the Resort's Final Master Plan (FMP) incorporates and satisfies all conditions of the CMP and has received final approval." Final Master Plan (File Nos. M-07-2/MA-08-6): Thornburgh Resort Company filed for approval of the Resort Final Master Plan (FMP) in 2007, which was later amended in 2008. The application was approved by the County, appealed by Gould, and subsequently remanded by LUBA to address issues regarding the Thornburgh Wildlife Mitigation Plan (Gould v. Deschutes County, 59 Or LUBA 435 (2009)). The LUBA decision was appealed to the Court of Appeals. The Court affirmed LUBA's decision (Gould v. Deschutes County, 233 Or App 623, 227 P3d 759 (2010)). In 2015, on remand, the County denied approval of the FMP. Central Land and Cattle Company, LLC ("Central") successfully appealed the denial and LUBA remanded the County decision (Central Land and Cattle Company v. Deschutes County, 74 Or LUBA 326 (2016)). The Court of Appeals affirmed LUBA's decision without opinion (A163359). On the second remand, the FMP was approved by the County. The County decision was appealed by Gould. The County's approval was affirmed by LUBA (LUBA No. 2018-008, August 21, 2018) and the FMP is now final. Tentative Plan & Site Plan - Phase A-1 Residential/OLU Lots & Utility Facilities (File Nos. 247-18- 000386-TP/247-18-000454-SP/247-18-000592-MA): In May 2018, Central filed for approval of its Phase A-1 Tentative Plan and Site Plan review for utility facilities authorized by the CMP and FMP. The Hearings Officer approved the request with conditions. The BOCC declined review of an appeal (Order No. 2018-073). Gould filed an appeal to LUBA (LUBA No. 2018-140). LUBA remanded the County's decision on the following issue: "On remand, the county must consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water constitutes a substantial change to the FMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and DCC destination resort regulations." The LUBA remand decision was appealed to the Court of Appeals (A171603), but the appeal was dismissed based on the filing deadline. The Court of Appeals denied reconsideration of said order of dismissal. The Oregon Supreme Court accepted review of Court of Appeals order denying reconsideration of the order -dismissing petition for review (S067074). The Supreme Court agreed with Gould and instructed the Court of Appeals to hear that matter. The Court of Appeals subsequently affirmed LUBA's decision in LUBA No. 2018-140 (A171603). In August 2021, Central initiated a second a remand application (file no. 247-21-000731-A). The Hearings Officer issued a 5 remand decision approving 247-21-000731-A (the Tentative Plan for Phase A-1 of the Thornburgh Destination Resort), thus clarifying and affirming the County's past approval of 247-18-000386-TP, 18-000454-SP, and 18-000542-MA. The BOCC declined review of an appeal (Order No. 2021-059). The County's decision was appealed to LUBA by Gould and LUBA affirmed the County's decision (LUBA No. 2021-112). A petition for judicial review has been filed to the Oregon Court of Appeals. Site Plan — Phase A Golf Course (File No. 247-19-000881-SP): In December 2019, Central filed for Site Plan approval for a golf course authorized by the CMP and FMP. In April 2020, the Deschutes County Planning Division administratively approved the application. The BOCC called up an appeal filed by Gould and Central Oregon LandWatch (Order No. 2020-016). The BOCC affirmed the administrative approval on August 31, 2020. The County decision was appealed to LUBA and LUBA affirmed (LUBA No. 2020-095). The LUBA decision was appealed by Gould to the Court of Appeals (A176353). The Court of Appeals affirmed and the Oregon Supreme Court declined review (S069050). Therefore, the Site Plan approval for the golf course is final. Site Plan — Phase A 80 OLUs (File No. 247-21-000508-SP): In May 2021, Central filed for site plan approval for 80 overnight lodging units authorized under the CMP and FMP. In September 2021, the Deschutes County Planning Division administratively approved the site plan. An appeal was filed by Gould, and the Hearings Officer denied the issues on appeal (file no. 247-21-000849-A) and approved the site plan. The BOCC declined review of an appeal (Order No. 2022-002). The County's decision was appealed to LUBA by Gould and LUBA affirmed the County's decision (LUBA No. 2022-013). The Court of Appeals affirmed LUBA's decision. It is unknown at this time if a petition for review has/will be filed to the Oregon Supreme Court. Site Plan - Phase A-1 Resort Facilities (File No. 247-21-000537-SP): In May 2021, Central filed for Site Plan approval for a Welcome Center, Gatehouse, Golf Clubhouse and Community Hall authorized under the CMP and FMP. In November 2021, the Deschutes County Planning Division administratively approved the Site Plan. An appeal was filed by Gould, and the Hearings Officer denied the issues on appeal (file no. 247-21-001009-A) and approved the site plan. The BOCC declined review of an appeal (Order No. 2022-012). The County's decision was appealed to LUBA by Gould and LUBA affirmed the County's decision (LUBA No. 2022-026). A petition for judicial review has been filed to the Oregon Court of Appeals. Modification of FMP — OLU Ratio (File No. 247-21-000553-MC): In June 2021, Central filed a Modification to amend the ratio of OLUs per single-family dwelling unit (from 2:1 to 2.5:1) and related bonding requirements. In October 2021, the Deschutes County Planning Division administratively approved the modification. An appeal was filed by Gould, and the Hearings Officer denied the issues on appeal (file no. 247-21-000920-A) and approved the Modification. The BOCC declined review of an appeal (Order No. 2022-003). The County's decision was appealed to LUBA by Gould and LUBA affirmed the County's decision (LUBA No. 2022-011). A petition for judicial review has been filed to the Oregon Court of Appeals. Tentative Plan - Phase A-2 Residential Lots (File No. 247-21-000637-TP): In June 2021, Central filed for Tentative Plan approval for 108 single-family dwelling lots authorized under the CMP and FMP. The total development area included in the request encompasses 135 acres and the single-family dwelling lots on the tentative plan drawings identify the lots as lot numbers 193-300. In October 2021, the Deschutes County Planning Division administratively approved the application. An appeal was filed by Christine Larson, and the Hearings Officer denied the issues on appeal (file no. 247-21- 6 00948-A) and approved the Tentative Plan. The BOCC declined review of an appeal (Order No. 2022- 011). Gould has filed an appeal to LUBA (pending LUBA No. 2022-025). Site Plan — Phase A 70 OLUs (File No. 247-21-001111-SP): In December 2021, Central filed for Site Plan approval for 70 overnight lodging units. This application is pending review. PUBLIC AGENCY COMMENTS: The Staff Report contained a summary of public agency comments submitted into the record as of the date the Staff Report was issued. The Hearings Officer directs interested persons to review the Staff Report and public record if he/she/they are interested in the details of public agency comments. The Hearings Officer notes that additional public agency comments were received after the issuance of the Staff Report. Public agency comments that are considered relevant to this decision will be addressed in the findings below. PUBLIC COMMENTS, TESTIMONY AND RECORD SUBMISSIONS: This application, as is typical of all Thornburgh land use applications, generated significant interest from neighbors, nearby residents/farmers and public interest groups and the public in general. The Hearings Officer reviewed each record submission. The Hearings Officer, where related to a relevant approval criterion, will identify specific participants and their comments. REVIEW PERIOD: The application subject to this decision was submitted on August 17, 2022. On September 16, 2022, the County mailed an incomplete letter to the applicant requesting additional information necessary to complete the review. The applicant provided responses to the incomplete letter on September 22, 2022, and notified the County that no additional information would be submitted. For this reason, the application was deemed complete and a public hearing before a Hearings Officer was scheduled for October 24, 2022. The County mai►ed a Notice of a Public Hearing to all parties on September 30, 2022, and published a Public Notice in the Bend Bulletin on October 4, 2022. The Hearings Officer, at the October 24, 2022, public hearing kept the record open for the submission of new evidence until November 7, 2022; the record open for the submission of rebuttal evidence until November 14, 2022; and provided for the Applicant to submit a final argument until November 21, 2022. The Hearings Officer finds that Applicant supported/concurred with the Hearings Officer's open -record period. The Hearings Officer finds the Applicant consented to an additional 14 days which shall not be counted towards the 150-day clock. Additionally, the 7-day Applicant final argument period does not count towards the 150-day clock pursuant to ORS 197.797 (6)(e). Therefore, the Hearings Officer finds the 150th day in which the County must take final action on the subject application is March 12, 2023. APPLICANT'S SUMMARY OF MODIFICATION REQUESTS: Applicant (Katzaroff, November 7, 2022, Exhibit 1) provided the following "summary letter" of Applicant's proposal in this case. Attached to the "summary letter" was a "reorganized and updated November 7, 2022 Thornburgh Resort 2022 Fish and Wildlife Mitigation Plan (2022 FWMP) Relating to the Potential Impacts of Thornburgh's Reduced Ground Water Withdrawals on Fish Habitat." 7 The "summary letter," in full, is set forth below: "This summary letter has been prepared by Jim Newton, PE, RG, CWRE, Principal of Cascade Geoengineering ('CGE') on behalf of Central Land and Cattle Company, LLC, owner, and developer of the Thornburgh Resort ('Thornburgh') to provide a simplified summary of the 2022 'Thornburgh Resort Fish and Wildlife Mitigation Plan, Addendum #2 (2022 FWMP) Relating to Potential Impacts of Thornburgh's Reduced Ground Water Withdrawals on Fish Habitat' dated August 16, 2022. The 2022 FWMP presented very detailed changes to the original 2008 FWMP that was approved by the Oregon Department of Fish and Wildlife (ODFW). Both the 2008 and 2022 FWMP provided mitigation to offset any potential impacts on fisheries and aquatic habitat and the specific measures to mitigate for any negative impacts. Thornburgh estimated in 2008 the Resort's water needs at full build out were up to 2,129 AF per year, having consumptive use of 1,356 AF, and a maximum withdrawal rate of 9.28 cubic feet per second (cfs). The Thornburgh Resort revised water needs at full build out by reducing some water intensive amenities and reducing irrigated landscaping for resort facilities and individual homes. The Resort will also implement the use of improvements in the type and method of fixtures used in Resort buildings to reduce consumption. As a result of this Thornburgh is reducing its total water needs from 2,129 AF to 1,460 AF. A summary table of the 2008 estimated water demand and the 2022 revised water demand are shown below: 2008 Original Water Use Full Resort Build -Out WATER USE ANNUAL VOLUME CONSUMPTIVE USE Golf Courses 717 AF 645 AF Irrigation 195 AF 117 AF Reservoir Maintenance 246 AF 206 AF Other Q/M 971 AF 388 AF TOTALS 9.28 CFS 2,129 AF 1,356 AF 2022 Reduced/Revised Water Use at Full Resort Build -Out WATER USE ANNUAL VOLUME CONSUMPTIVE USE Golf Courses 501 AF 451 AF Irrigation 111 AF 66 AF Reservoir Maintenance 51 AF 43 AF Other Q/M 797 AF 319 AF TOTALS 1,460 AF 882 AF The above reductions in estimated annual water usage reflect roughly a one-third in water savings at full buildout of the Resort. Further, the water used for mitigation of the new Resort water usage relies more on groundwater, groundwater that is intended to offset groundwater pumping that could reduce discharges of seeps and springs that contribute cool water to surface flows in the Deschutes River and Whychus Creek at gaining reaches of the River and Creek, respectively. A list of the water rights to be used for mitigation of the Resort water uses are shown below by the referenced name, volume and the water right certificate, transfer or otherwise a cancellation: 8 Water Rights: Certificated, Transfers, and Cancellations. 1. LeBeau (200 AF) — Surface Water POD: Certificate 95746 and transfer T-13857. 2. Big Falls Ranch (614.4 AF) — Surface Water: Certificate 96192 & 96190 and transfer T-12651 to a groundwater Point of Appropriation. 3. Big Falls Ranch (25.6 AF) — Groundwater POA: Certificate 87558. 4. Tree Farm (327.5 AF) — Groundwater POA: Certificate 94948 and Transfer T13703. 5. Dutch Pacific (49.5 F) — Groundwater POA: Certificate 89259. 6. DRC Temporary Mitigation Credits — 6 AF of mitigation. 7. Three Sisters Irrigation District (1.51 cfs minimum 106 AF) — Surface water. Final order signed for instream transfer. This TSID water will only be used for quality mitigation, not as part of any OWRD mitigation or transfer program. These above mitigative water rights, upon approval by the Oregon Water Resources Department, will provide mitigation for 1,217 AF of the 1,460 AF required for fully mitigation the estimated Resort water uses. The remaining approximately 243 AF of mitigation will be completed in the future, prior to the OWRD authorizing the full annual water use of 1,460 AF. If the additional 243 AF of mitigation is not necessary, or unavailable, the Resort will be limited to 1,217AF annually. Based on the detailed surface and groundwater modelling prepared by Four Peaks Environmental Consulting, and Resource Strategies, Inc., and the analysis of the impacts on Fish Habitat provided by Four Peaks (all submitted into the county written record as of the date of this letter), the mitigation of the Thornburgh Resort groundwater usage achieves compliance with DCC 18.113.070(D), Deschutes County's "No Net Loss/Degradation" standard as it pertains to fishery resources. Considering the reduced Thornburgh Resort water usage and superior mitigation of future Resort water uses provided by the 2022 FWMP and the ample technical support for the plan, the County should approve the Thornburgh 2022 FWMP." III. FINDINGS & CONCLUSIONS SIGNIFICANT ISSUES RAISED: The Hearings Officer organized this decision somewhat differently than prior Thornburgh land use decisions. The Hearings Officer recognized that the Staff, Applicant and opponents raised a number of issues that were best addressed at the beginning of the decision. The Hearings Officer notes that in many cases these issues could be determinative of the Hearings Officer's ultimate decision in this case. The Hearings Officer addresses below the issues the Hearings Officer believes were raised clearly with sufficient detail to allow the Hearings Officer to make a reasoned and supportable determination. The Hearings Officer first deals with procedural issues and then addresses what the Hearings Officer characterizes as substantive issues. Procedural Issue #1: Timing of Notice of Hearing Staff, (Staff Report, page 13), made the following comments related to the notice of hearing in this case: 9 "...a public hearing before a Hearings Officer was scheduled for October 24, 2022. The County mailed a Notice of a Public Hearing to all parties on September 30, 2022, and published a Public Notice in the Bend Bulletin on October 4, 2022.... STAFF COMMENT: Staff notes the hearing will occur on the 20th day [footnote 6] from when the Public Notice was published in the Bend Bulletin. DCC 22.24.030(C) requires notice of an in the County at least 20 days prior to the hearing. Staff asks the Hearings Officer to confirm if the notice requirements of DCC 22.24.030 have been met." footnote 6: "DCC 22.08.070. Time Computation. Except when otherwise provided, the time within which an act is required to be done shall be computed by excluding the first day and including the last day, unless the last day is a Saturday, Sunday, legal holiday or any day on which the County is not open for business pursuant the County is not open for business pursuant to a county ordinance, in which case it shall also be excluded." The Hearings Officer finds that the Bend Bulletin published a notice of the October 24, 2022, hearing (the "Hearing") in this case on October 4, 2022. The Hearings Officer finds that the Hearing did occur on October 24, 2022, which is 20 days after the published notice of hearing. The Hearings Officer finds that DCC 22.24.030 requires that the published notice happen/occur "at least 20 days prior to the hearing." (Emphasis added by the Hearings Officer) "Prior" is defined in the Meriam-Webster online dictionary as "earlier in time or order." The Hearings Officer finds that technically DCC 22.24.030, along with DCC 22.08.070, requires 20-days pass prior to the scheduled hearing. The October 24, 2022 Hearing in this case was an initial public hearing. The notice of hearing was published on October 4, 2022, and DCC 22.08.070 mandates that day (October 4, 2022) not be counted towards the 20-day requirement. The first "counting" day for DCC 22.24.030 (C) purposes is October 5, 2022 and the 20th day would be October 24, 2022. The Hearings Officer finds that the October 24, 2022 hearing date is the 20t" day. The Hearings Officer finds that the earliest that a hearing could be scheduled to meet the "20 days prior" requirement would have been October 25, 2022. The Hearings Officer finds that technically the county did not meet the DCC 22.24.030 (C) notice requirement. The Hearings Officer did not make an oral ruling, at the Hearing, related to the published notice comments made by Staff. The Hearings Officer reviewed the entire October 24, 2022, hearing recording and attempted to ascertain whether any person provided comments about the hearing notice in the public record. While the Hearings Officer found various procedural objections to the hearing (See Procedural Error findings related to the open -record period, notice signage and County delays in uploading submissions to the online record), the Hearings Officer found no testimony, evidence, argument arguing that the notice of published notice somehow prejudiced any person's/participant's substantial rights. The Hearings Officer finds the relevant law holds that a failure to provide a required notice provides a basis for reversal or remand only if an identifiable person's/participant's substantial rights were prejudiced by the error. West Amazon Basin Landowners v. Lane County, 24 Or LUBA 508 (1993). The Hearings Officer takes note that at least sixteen persons attended the Hearing in person and testified and two testified via the telephone. The Hearings Officer also notes that approximately 275 written submissions were received in the public record prior to the hearing and approximately 17 public agency comments were received. Additionally, the Hearings Officer notes that approximately 101 "new 10 evidence" submissions were received during the first open -record period and approximately 40 submissions were received during the rebuttal open -record period. The Hearings Officer finds that the public and interested persons actively participated in the hearing process for this case; including attending the Hearing in person, via zoom or by telephone. The Hearings Officer finds the technical error made by the County related to DCC 22.24.030(C) is harmless error and that no identifiable person's rights were substantially prejudiced. Procedural Issue #2: Notice of Hearing Signage Hearing participant Christine Larson ("Larson") objected to the location of the notice of hearing sign placed on the Thornburgh property. In summary, Larson stated that the location where the notice of hearing sign was placed was difficult to safely read. Larson asserted that the location of the notice of hearing sign did not provide meaningful notice to the community. Applicant provided the following response to Larson's notice sign placement argument (Katzaroff, November 21, 2022, pages 12 & 13): "Ms. Larson, in a Friday, October 21, 2022 Email, suggests the land use notice sign has no hearing date, is posted in "hard to view areas," are on Thornburgh's property but "far away from any development" and that there is an entry gate with parking that may make a better location. Respectfully, Thornburgh complied with the code related to posting of notice. As discussed by the planning staff at the Hearing, the land use action sign was filled out properly by staff. DCC 22.24.030(B)(1) requires that the notice be provided on the "subject property" and "where practicable, be visible from any adjacent public right of way." While we understand the concerns of Ms. Larson, as shown on the map provided in the Staff Report, the only public right of way in the vicinity is Cline Falls Hwy." The Hearings Officer notes that the Katzaroff November 21, 2022, submittal also included two maps and additional discussion related to the logistics of the placement of notice signage. The Hearings Officer finds Katzaroff's comments and maps to be persuasive. Also, the Hearings Officer finds Staff, at the Hearing, concurred that notice of hearing signage met code requirements. The Hearings Officer finds Larson's notice sign placement argument is not persuasive. Procedural Issue #3: Open -Record At the October 24, 2022, public hearing Jennifer Bragar ("Bragar"), an attorney representing Annunziata Gould ("Gould"), requested a period of time for the record to remain open. Bragar requested the record to be kept open for a period of 30-days for new evidence and 30-days for rebuttal evidence and a final 7-days for applicant rebuttal. In Bragar's initial open -record written submission (Bragar, November 7, 2022, page 4) she stated, in part, the following: "At the public hearing, Ms. Gould requested an additional 17 days for the record to remain open to account for the missing 10 days and provide the statutorily required seven day period for an open record request under ORS 197.797(6). The Hearings Officer improperly decided that the record should be left open for 14 days. This does not account for the minimum time Ms. Gould and the public would have had available if Thornburgh's materials had been made available in a timely manner on September 22, 2022 [footnote omitted]. Another way to look at this is that the 10 day delay of posting the Applicant's Response to Incomplete Letter is overcome, but with only a 14-day 11 open record period, the statutory seven day open record period has been shortened by three days. In either event, the public has been substantially prejudiced and did not have adequate time to prepare substantive comments for the hearing before the Hearings Officer." The Hearings Officer, at the Hearing, requested Applicant's response to the Gould's/Bragar's open - record request. Kameron Delashmutt ("Applicant" or "DesLashmutt") and Kenneth Katzaroff (attorney for Applicant - "Katzaroff") both expressed opposition to the 17-day open -record request and indicated that Applicant would not agree to extend the 150-day clock for any time period exceeding that required by Deschutes County code. The Hearings Officer takes note of Deschutes County Code ("DCC") 22.24.140 D. which states: "Leaving record open. If at the conclusion of the initial hearing the Hearings Body leaves the record open for additional written evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony." The Hearings Officer also takes note of ORS 197.797 (6). ORS 197.797 (6) sets out the minimum procedures that the county is required to follow when conducting quasi-judicial land use hearings (See, Emmert v. Clackamas County, LUBA No. 2011-052). Specifically, ORS 197.797 (6)(c) provides that land use hearing participants must be given an opportunity to rebut evidence submitted during a "first" open - record period. The Hearings Officer finds that DCC 22.24.141 (D) provides that if a hearings officer keeps the record open for the submission of new written evidence or testimony then the hearings officer must allow at least seven additional days for responsive evidence. The Hearings Officer finds that the DCC 22.24.141 (D) responsive open record period satisfies the ORS 197.797(6)(c) opportunity to rebut evidence requirement. The Hearings Officer finds nothing in the DCC or Oregon Revised Statutes ("ORS") requiring the Hearings Officer to keep a record open beyond the "seven, seven, seven" DCC 22.24.141 (D) requirement. The Hearings Officer finds that he may exercise discretion in establishing an open -record period so long as the DCC and ORS minimum times requirements are met. In this case the Hearings Officer extended the first (initial open -record period) from seven days to fourteen days. The Hearings Officer kept the record open for seven days for responsive evidence. The Hearings Officer acknowledged the Applicant's right to a seven-day final written argument. The Hearings Officer, in this case, provided an additional seven days for any interested person/entity to submit evidence into the record. The Hearings Officer's open -record schedule, as set forth at the Hearing and the preceding paragraph, was established considering Bragar's/Gould's request in the context of statutory time limitations established to render a local decision. The Hearings Officer finds Bragar provided no persuasive evidence or argument that any party's rights, in this case, would be substantially prejudiced. The Hearings Officer finds that Bragar's/Gould's open -record procedural error argument is not legally persuasive. Procedural Issue #4: County Delay in Submitting Items to Public Record 12 Bragar (November 7, 2022, pages 3 & 4) argued that the County delayed "uploading" materials submitted by the Applicant to the online public record. Bragar argued that such delay "robbed Ms. Gould and the public of valuable time to prepare for the public hearing for a highly technical and complicated land use decision." Bragar went on to say that "this oversight by the County to only maintain a digital record, but to not keep it up to date, substantially prejudiced Ms. Gould and the public in their preparation for the hearing and the land use process more broadly." Katzaroff provided Applicant's response to Bragar's delay in "uploading" argument, as follows: "Nothing in the County's procedures ordinance or state law required the County to immediately upload to the County's website or Accela the Applicant's Response to Incomplete Letter. In fact, there is no law or requirement that would have required the County to upload the response in advance of the County issuing a decision on the Application, or in advance of determining that it would send the Application to a hearing. The County complied with DCC 22.20.020, which is all that was required. Like any member of the public, Ms. Gould had the opportunity to specifically request documents or to otherwise seek information from County planning staff related to the Application. The County owes no additional process to Ms. Gould or the general public above what the law required." The Hearings Officer concurs generally with Katzaroff's above -quoted comments. In addition, the Hearings Officer finds that an the open -record period to submit new evidence was extended from seven to fourteen days to allow Bragar, Gould, Applicant and the public to review the record of this case and provide written evidence and argument. As noted by Janet Neuman ("Neuman"), water rights attorney for Applicant (Neuman, November 14, 2022, page 1), "Ms. Gould's Open Record materials consist of over 3,000 pages of documents attached to a November 7, 2022 letter from her land use counsel, Jennifer Bragar..." While the Hearings Officer admits to not counting the number of pages submitted by Bragar, Gould and the public (nor the Applicant's submissions) the Hearings Officer can reasonably characterize the opposition open -record submissions as voluminous, extensive and some very technical. In a perfect world all documents submitted to the County would be instantly become a part of the online public record and accessible to all. The Hearings Officer finds that there is no substantial evidence in the record that Bragar, Gould and/or the public was/were substantially prejudiced through the County's delay in "uploading" documents. Procedural Error #5: Goal 1 Bragar (November 7, 2022, page 3) stated the following: "'The opportunity for citizens to be involved on all phases of the planning process' is an integral component to Oregon's land use planning program. Statewide Planning Goal 1. The public must have access to all documents and evidence in a timely manner to allow adequate opportunity to prepare for a public hearing. Transparency and the availability of documents in the record is the cornerstone for implementing Goal 1 citizen involvement, and ensuring the public's due process rights. The inability to access record information substantially prejudices the public's ability to participate in the planning process and disables widespread citizen involvement." 13 The Hearings Officer incorporates the findings Procedural Issue #4: County Delay in Submitting Items to Public Record as additional findings for the Goal 1 findings. Further, the Hearings Officer finds that Bragar did not reference any case law that would be relevant and in support of her Goal 1 argument. The Hearings Officer finds Bragar's Goal 1 argument is general in nature and lacking sufficient specificity to allow the Hearings Officer to authoritatively respond.4 The Hearings Officer finds, based upon the findings for "open -record," "failure to timely upload," and those set forth above that Bragar's Goal 1 argument is not persuasive. Procedural Error #6: ORS 197.797 & DCC 22.20.055 Bragar (November 14, 2022, pages 5 & 6) argued that "Applicant's continued submission of application materials after the hearing constitutes a violation of ORS 197.797 and substantially prejudices the public." Bragar asserted that Applicant, on November 7, 2022, submitted a "new FWMP as an open record submission." Bragar went on to say that "the public did not have 20 days before a hearing to review Thornburgh's proposed additions to its application." Bragar requested that the Hearings Officer order a "new hearing." Bragar, in her November 14, 2022 open -record submission (page 6), provided additional comments relevant to her ORS 197.797 argument: "Significantly, at least 44% of the text in the November 7, 2022 FWMP is brand new. Attachment D, where the yellow highlights indicate new text that was not contained in the August 16, 2022 version. [footnote omitted] The August 16, 2022 version of the FWMP contained six more pages of language no longer found anywhere in the brand new November 7, 2022 FWMP. These significant changes to the Application, at a minimum, signify that under DCC 22.20.055 the Hearings Officer should require the Applicant to submit an application to modify, and restart the 150-day time clock." Applicant responded to the above -quoted Bragar argument. First, Applicant highlighted (Katzaroff, November 21, 2022, pages 10 & 11) a prior Deschutes County Board ("BOCC") decision (involving opponent Gould) addressing DCC 22.040.010 and DCC 22.20.055 (Case No. CU-05-10, DC No. 2006-151). In that case the BOCC noted that Opponent Gould "argued that Applicant's rebuttal materials, dated September 28, 2005, included so many changes that it resulted in a modification of the application..." The BOCC, in that case, concluded that "Gould did not identify one new DCC criterion that had to be applied or one finding of fact that had to be changed as a result of the alteration she lists. None of the changes made by Applicant in its rebuttal materials required the application of new criteria to the proposal." Applicant's second response to Bragar's modification argument referenced specific/actual changes made by the November 7, 2022, FWMP submission to the original application 2022 FWMP document (dated August 16, 2022). Applicant concluded that "the updated 2022 document [September 7, 2022 FWMP document] was provided in response to the request from the Hearings Officer to clarify the 2022 FWMP [August 16, 2022 FWMP document]. It provided no new mitigation measures or evidence, it simply provides a greater level of description as to how the 2022 FWMP is intended to work." (bold/underline included in original). 4 22.24.120 APPENDIX A PRELIMINARY STATEMENT IN LAND USE ACTION HEARINGS OR APPEALS BEFORE THE BOARD, section titled Hearings Procedures 14 The Hearings Officer reviewed Bragar's "marked -up" copy of the August 16, 2022, Thornburgh Resort 2022 Fish and Wildlife Mitigation Plan (2022 FWMP) Relating to Potential Impacts of Thornburgh's Reduced Ground Water Withdrawals on Fish Habitat. The Hearings Officer also engaged in the lengthy process of comparing each Bragar yellow highlighted section of the August 16, 2022, FWMP to the November 7, 2022, FWMP which Bragar argued should be considered a DCC 22.20.055 modification (requiring Applicant to submit an application to modify and restart the 150-day time clock). The Hearings Officer concluded, following the review of the August 16, 2022, and September 7, 2022, versions of Applicant's proposed 2022 FWMP that the September 7, 2022, FWMP version was an Applicant effort to repackage, reorganize and clarify the August 16, 2022 version. The Hearings Officer finds that the September 7, 2022, FWMP version did not change any proposed use, operating characteristic, intensity, scale, site lay out or landscaping element/item that was set forth in the August 16, 2022 FWMP. The Hearings Officer finds that the September 7, 2022, version did not change Applicant's 2022 FWMP proposal in a manner that would require the application of new criteria to the proposal or would require the findings of fact to be changed. The Hearings Officer finds that the September 7, 2022, FWMP submission was provided in response to a Hearing request, made by the Hearings Officer to the Applicant, to clarify the August 16, 2022, FWMP. The Hearings Officer finds the September 7, 2022, FWMP submission constitutes evidence submitted into the record after the application was deemed complete and prior to the close of the evidentiary record. The Hearings Officer finds Applicant's submission of the September 7, 2022, FWMP is not a "modification of application" as defined by DCC 22.04.020. The Hearings Officer finds Bragar's ORS 197.797 and DCC 22.20.055 arguments are not persuasive. Substantive Issue #1: Property Considered Bragar (November 7, 2022, page 25) stated that "Thornburgh's slide presentation shows a road traversing tax lot 5300, but tax lot 5300 is not included in this Application ... Further tax lots 5103 and 5104 also need to be included in the Application because the Applicant's road and water system are located on those properties." Applicant provided the following response (Katzaroff, November 14, 2022, page 7): "Tax Lots 5300, 5103 and 5104 are presumably Tax Lots 5300, 5103 and 5104, Map 15-12-00. These properties are owned by the State of Oregon (DSL) and are leased to Thornburgh on a long-term lease. Thornburgh has easements to build roadways across these properties but the properties are not part of the property subject to the CMP and FMP. This is evident from a review of the CMP and FMP decisions Ms. Bragar filed with her November 7, 2022 letter. At the time the CMP was approved, Tax Lots 5300, 5103 and 5104 were not located in the DR overlay zone. Ms. Gould argued that these access roads were, however, resort development that was prohibited because neither property was zoned with Destination Resort overlay zoning. Her claim was summarily rejected by the Oregon Court of Appeals. Gould v. Deschutes County, 216 Or App 150, 158, 171 P3d 1017, footnote 1 (2007) presumably because the access roads may be built outside of the Resort that is subject to the CMP/FMP." 15 The Hearings Officer finds the Applicant's above -quoted statement to be credible and responsive to Bragar's above -quoted comments. The Hearings Officer finds, based upon the evidence in the record, that the Applicant included all necessary tax lots in the modification application subject to this decision. Substantive Issue #2: Intermittent Streams Bragar (November 7, 2022, page 25) asserted, based upon correspondence from the Oregon Department of State Lands ("DSL") (Bragar attachment 35, page 2), that intermittent streams "crisscross the entirety" of a portion of the Thornburgh Resort property. Bragar argued that the environmental impacts of the intermittent streams must be analyzed prior to approval of the current application to modify. The Hearings Officer finds the "intermittent streams" issue has been raised in the past by opponents and has been adequately addressed. The Hearings Officer takes note that DSL has previously emailed Staff indicating that notice to DSL was not necessary (October 19, 2022). Further, the Hearings Officer takes note that Applicant submitted a letter from HWA engineering stating that "there are no intermittent streams on the Thornburgh Resort property" (Applicant Exhibit rebuttal exhibit 8). The Hearings Officer finds the DSL email and HWA letter referenced above are substantial evidence that there are no intermittent streams on the property subject to this application. Substantive Issue #3: Removal of one golf course Staff (Staff Report, page 20) and opponents asserted that the Applicant's proposed elimination/removal of one golf course from the Thornburgh project would amount to a substantial change of the CMP/FMP approvals. The Hearings Officer will address the "substantial change" issue in later findings. However, the Hearings Officer addresses the status of the golf course to be removed at this time. The Hearings Officer reviewed the CMP and FMP documents. The Hearings Officer finds the CMP/FMP approved three golf courses for the Thornburgh Resort. The Hearings Officer finds that one golf course is required and two are optional. The Hearings Officer finds the golf course Applicant proposes to eliminate through the 2022 FWMP modification application is an optional course. The Hearings Officer finds that the removal of one of the optional golf courses cannot be considered a substantial change to the CMP/FMP. The CMP/FMP authorized not building two of the approved golf courses and the application in this case is following that CMP/FMP authorization. Substantive Issue #4: On -the -ground changes Staff (Staff Report, page 10) expressed concern about possible "on the ground" changes being requested in Applicant's 2022 FWMP modification proposal. The Hearings Officer finds that Applicant has proposed no "on the ground changes" in the 2022 FWMP application being reviewed in this case. The Hearings Officer finds that map references related to the one optional golf course to be eliminated will need to be addressed in a future site plan or preliminary plan review application. The one golf course proposed to be eliminated was at the time of the CMP and FMP approvals purely optional; it was anticipated during the CMP and FMP stages of approval that the one golf course to be eliminated would in fact not be constructed. If this application is approved such approval will limit golf course development to one required course and one optional course (not two optional courses). 16 Substantive Issues #5: Additional development This issue is closely related to Substantive Issue #4: On -the -ground changes. Staff (Staff Report, page 52) asked the Hearings Officer to "make findings on whether the applicant's proposal only modifies the FWMP". Applicant (Katzaroff, October 2, 2022, page 6) responded by saying that "Staff request[s] a finding as to whether the Applicant's tailored request should be broadened beyond the request of the Applicant. It should not, nor is there authority in the code for staff to so require. As noted, the code requires a modification to be related to a discrete aspect of the proposal." The Hearings Officer reviewed the hearings officer's FMP remand decision and Applicant's Modification proposal in this case. The Hearings Officer finds that the FMP decision (M-07-2, MA-08-6) approved the 2008 FWMP. The Hearings Officer finds the primary references to water use (I.e., consumptive and mitigation -quantity and quality) at the Thornburgh Resort are found in the 2008 FWMP. The Hearings Officer finds that Applicant's Modification proposal in this case is to update/change only the 2008 FWMP. The Hearings Officer finds that Applicant's proposed reduction in water use, changes in the sources of mitigation water and changes to the source of Thornburgh consumptive water are all related to Applicant's proposed update to the 2008 FWMP. The Hearings Officer finds Applicant's proposed modification in this case does not propose changes to CMP / FMP approved development at the Thornburgh Resort. No changes are proposed in the location of streets, open space, number of single- family residences, number of overnight living units or resort amenities (welcome center, clubhouse, etc.). The only development being proposed in this case is a reduction in CMP/FMP optional development (the optional golf course). Substantive Issue #6: Illustrations/Graphics Required Staff, as part of its incomplete letter response to Applicant indicated that it had requested Applicant to provide updated illustrations and graphics. Staff (Staff Report, pages 29 — 32) included Applicant's comments in response to its request to provide updated illustrations and graphics. Applicant also addressed the illustrations and graphics issue in a record submission (October 21, 2022, page 3). The Hearings Officer finds that Applicant's modification proposal relates specifically to the FWMP. The Hearings Officer does acknowledge that the Applicant proposed to eliminate one golf course. The golf course to be eliminated, per the CMP, was optional; not required. The Hearings Officer agrees with Staff that updated illustrations and graphics would provide the county and persons interested in the Thornburgh Resort project with a timely picture of what has already been approved and what the Applicant is expecting to occur in the future. However, the Hearings Officer finds no participant in this case has provided the Hearings Officer with any legal authority and/or justification to require the Applicant to provide updated illustrations and graphics. Substantive Issue #7: Number and Location of Onsite Wells Staff (Staff Report, page 26) "asks the Hearings Officer to make findings on well location requirements for the Resort and to review the applicable criteria, if any, associated with changes to the location of and/or the number of wells for the Resort's water supply." 17 Applicant (Katzaroff, October 21, 2022, page 3) responded that Applicant is "not seeking the approval of new well sites." The Hearings Officer reviewed the Applicant's modification proposal in this case and concludes that Applicant is not formally applying for a change in the number or location of wells on the Thornburgh Resort property. The Hearings Officer finds that if the 2022 FWMP were to be approved in this decision that approval cannot be considered approval of any specific number of wells or any specific location of wells on the Thornburgh Resort property. Substantive Issue #8: Definition of Surrounding properties — DCC 22.36.040 Staff (Staff Report, page 52) asked the Hearings Officer to define "surrounding properties" as that phrase is used in DCC 22.36.040 (C). Applicant (Katzaroff, October 21, 2022, pages 5 & 6) provided a response to Staff's "surrounding properties" inquiry. The Hearings Officer agrees with Applicant that "surrounding properties," as used in DCC 22. 36.040 (C), literally means the real property ownerships that are directly adjacent to (surrounding) the Subject Property. Substantive Issue #9: ODFW — Agreement The level of (required or optional input) participation of the Oregon Department of Fish and Wildlife's ("ODFW") was hotly debated during the record of this case. Many opponents argue that the ODFW must "agree" to Applicant's proposed 2022 FWMP and must agree to measures assuring the satisfaction of the County "No Net Loss" standard. Applicant disagreed and argued ODFW "agreement" with the proposed 2022 FWMP is not necessary. This section of findings addresses the ODFW level of participation issue. Staff, in the Staff Report (page 43), requested that the Hearings Officer "determine what authority, if any, shall be given to the ODFW's verification that the Resort's proposal complies with DCC 18.113.070(D)." Bragar (November 7, 2022, page 5) stated that "Ms. Gould continues to think that the Hearings Officer erred in finding that Thornburgh's failure to obtain ODFW, and as described below, BLM agreement with its FWMP modification is integral to a complete application." Applicant (Katzaroff, October 21, 2022, page 4) provided the following comments related to ODFW authority in this case: "Staff requests finding on whether ODFW has been granted specific review authority of the FWMP and compliance with the no net loss/degradation standard. ODFW has no authority over Thornburgh's application. The County code does not provide for any jurisdictional oversight by ODFW. ODFW has not asserted that it has any jurisdiction to approve or deny wildlife management plans. To the extent ODFW provides testimony it should be weighed and reviewed the same as any evidence in the record." DCC 18.113.070(D) states any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource.'" The Hearings Officer concurs with Applicant's above -quoted statement that there is nothing in DCC 18.113.070 (D) requiring participation and/or agreement of ODFW in determining whether or not an application impacting fish and wildlife resources results in "No Net Loss." Stated another way, the Hearings Officer finds that DCC 18.113.070 (D) does not require ODFW approval of Applicant's 2022 18 FWMP proposal. This finding does not mean that ODFW comments, recommendations, or technical expertise are irrelevant or not to be considered. To the contrary, as noted in findings below, the Hearings Officer considered ODFW comments in this case to be very relevant. The Hearings Officer considered the ODFW comments to be provided by persons within ODFW who are competent and technically skilled in matters related to fish and wildlife habitats. Substantive Issue #10: Is the Thornburgh CMP "void" Bragar (November 7, 2022, pages 6 — 9) provided a historical and analytical analysis of Gould's argument that because the CMP was void there is nothing to modify in this case. The conclusion of Bragar's "CMP void" argument was that Applicant must submit an application for a "new" CMP before requesting approval of any proposed 2022 FWMP. The Hearings Officer finds that Bragar made frequent reference to the Central Land and Cattle Co. v. Deschutes County, 74 Or LUBA 236 (2016) land use decision (hereafter referred to as the case as the "LUBA FMP 2016 Decision"). Bragar argued that the LUBA FMP 2016 Decision held that the Thornburgh CMP was "ineffective and void." The Hearings Officer finds that Bragar's "void CMP" argument, and even the LUBA FMP 2016 Decision related to the "void CMP issue," a bit puzzling. This Hearings Officer has presided over and decided a number of post LUBA FMP 2016 Decision Thornburgh cases.' The "void CMP" issue has not been effectively raised in any of the prior Thornburgh cases where this Hearings Officer presided. Further, the Hearings Officer notes that in those prior cases the Thornburgh CMP was referenced and in numerous instances CMP conditions of approval were reviewed to determine if an application should be approved. This Hearings Officer finds it difficult to comprehend the "void CMP" issue is relevant at this late stage of the development process. With that said the Hearings Officer did review and consider carefully Bragar's argument. The Gould "void CMP" considered was by LUBA in the LUBA FMP 2016 Decision (see pages 27 — 32). LUBA noted, in the LUBA FMP 2016 Decision (pages 29 & 30) that a Deschutes County Hearings Officer (not the Hearings Officer in this case) "rejected Gould's 'void CMP' argument for several reasons." As noted in the LUBA FMP 2016 Decision the Hearings Officer found that "the FMP was filed pursuant to a CMP that ultimately was affirmed." LUBA found, in the LUBA FMP 2016 Decision that the appropriate approach to the CMP and FMP relationship is that the FMP "has effectively incorporated and displaced the CMP approval" (page 31). The Hearings Officer, based upon a review of the record and relevant appellate decisions, finds that there is no substantial evidence or persuasive legal authority in the record of this case to allow the Hearings Officer to conclude that the CMP is "void." As such, the Hearings Officer finds the CMP is not "void" and that the Applicant's modification proposal may be processed in this case. Substantive Issue #11: Overview of the Interaction Between the CMP and FMP Closely related to the previous issue (Substantive Issue #10: Is the Thornburgh CMP "void") is a staff (Staff Report, page 35) and opposition (Bragar, November 7, 2022, page 9) concern related to an Applicant representation that "the CMP/FMP is one document." (Applicant's Response to Issues Raised in Incomplete Application Letter, page 41). The Hearings Officer believes that Applicant's position is 5 Including, but not limited to, the following: Phase A-1 Remand, Phase A 80 OLUs, Phase A-1 Resort Facilities, Modification of FMP regarding OLUs, Welcome Center and other resort amenities, Phase A-2. 19 sourced from LUBA language contained in the LUBA FMP 2016 Decision. LUBA stated, in the LUBA FMP 2016 Decision, the following: "As Gould correctly notes, the CMP potentially remains a relevant source of FMP approval considerations because at least some of the CMP conditions of approval effectively cannot be performed until the FMP approval. But those conditions of approval were carried forward in the county's first FMP approval decision and remain part of the current FMP decision. All requirements of the CMP approval are now requirements of the county's FMP approval. The FMP approval has effectively incorporated and displaced the CMP approval." Bragar provided the following comments related to the "CMP/FMP one document" issue: "The Applicant's attempt to redefine its CMP and FMP approvals as a single step instead of two separate distinct steps does not tell the whole story. Characterizing the CMP and FMP as one and the same decision based on the FMP containing some mirror, but not always identical conditions of approval or otherwise attempting to address the CMP conditions with a 'satisfied' statement, does not by mere assertion change the nature of each independent decision." Bragar's comments quoted above are generally consistent with the Gould argument presented in the LUBA FMP 2016 Decision (See LUBA FMP 2016 Decision page 31, footnote 10). The Hearings Officer, while appreciating the Applicant's definitional efforts (Katzaroff, November 14, 2022, page 4, footnote 4), conceptually agrees with Bragar, Gould's and possibly Staff's description of the relationship between the CMP and FMP. The Hearings Officer finds the County has a three -step destination resort application/approval process. The CMP, the first step, is a singularly unique document not dependent upon any prior approval. The FMP, the second step, is a document that may well be dependent upon the CMP but from a legal perspective is itself an independent document. Site plan or preliminary plan approval documents may well be dependent upon the CMP and/or the FMP. Site plan and preliminary plan approvals are legally independent documents. The Hearings Officer concurs with LUBA (LUBA FMP 2016 Decision) that the FMP "effectively incorporated and displaced the CMP approval." However, that LUBA language does not state that the CMP and FMP are "one document." In this case the Hearings Officer finds that the Thornburgh CMP and Thornburgh FMP are legally distinct documents and not technically "one document." The Hearings Officer finds that such a conclusion is appropriate considering that the Deschutes County Code provides a process to modify a CMP (DCC 18.113.080) but not a separate process to modify a FMP document. The Hearings Officer finds that in this case the CMP approval deferred the FWMP decision to be made as part of the FMP. Therefore, the Hearings Officer finds that any decision to change the FMP by changing the FWMP necessarily implicates the CMP. The Hearings Officer finds that modifying a second stage FMP document may require a modification of the first stage CMP document. That appears to the Hearings Officer what is being done in this case. SUBSTANTIVE ISSUES - SUBSTANTIAL CHANGE OVERVIEW A significant number of opponents asserted that Applicant's 2022 FWMP modification proposal constituted a "substantial" or "significant" change from past approvals. The "substantial change" issue is addressed in a number of findings below. The Hearings Officer chose to address the interpretation of the phrase in the two specific sections where that phrase is used (DCC 18.113.080 and Condition 1). The 20 Hearings Officer, in separate findings, considers how the phrase "substantial change," as used in the two specific instances, can be "harmonized" by reference to DCC 22.36.040. Substantive Issue #12: Substantial Change - DCC 18.113.080 DCC 18.113.080 states: "Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP. An insubstantial change may be approved by the Planning Director. Substantial change to an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected." The Hearings Officer finds that the DCC 18.113.080 "as determined by the Planning Director" includes Planning Director designees. The Hearings Officer finds that a hearings officer is a Planning Director designee. The Hearings Officer finds the DCC 18.113.080 language "as determined by the Planning Director" allows, permits and authorizes this Hearings Officer to determine if Applicant's proposed modifications in this case are "substantial changes." The Hearings Officer takes note that Staff, Applicant and opponents all raised the issue of "substantial changes" in their evidentiary and legal arguments. Applicant, Staff and opponents all asked the Hearings Officer to determine whether or not its proposed modifications were "substantial changes." No arguments were presented by any participant that the Hearings Officer in this case could not interpret DCC 18.113.080. This is not the first instance where this Hearings Officer has been required to address the "substantial" or "significant" change issue. The latest instance where the Hearings Officer addressed this issue was in Applicant's request to modify the Thornburgh CMP/FMP in relation to CMP/FMP Overnight Lodging Units ("OLU's") (the Hearings Officer's "OLU Modification Decision"). Gould appealed the OLU Modification Decision to LUBA. LUBA addressed the "substantial" or "significant" change issue, in part, as follows: "The hearings officer interpreted FMP Condition 1, DCC 18.113.080, and DCC 22.36.40 in a manner that harmonizes and gives effect to all those provisions. While FMP Condition 1 or DCC 18.113.080 do not expressly define 'substantial change' as a change that will result in significant additional impacts on surrounding properties, the hearings officer did not err in interpreting those criteria as implying that analysis. See ORS 174.010 ('Where there are several provisions or particulars such construction, if possible, to be adopted as will give effect to all.') In that context, the hearings officer did not err in concluding that a potential loss of 95 units of overnight tourist lodging is not a substantial change that would require a new application. Substantial change to an approved CMP, as used in DCC 18.113.080 means an alteration in type, scale, location, phasing or other characteristic proposal development such that findings of fact on which the original approval was based would be materially affected.' DCC 18.113.080. Importantly, petitioner does not identify any findings of fact on which the original approval was based that would be materially affected by a decrease in the overall number of OLUs. DCC 18.113.080'' Gould v. Deschutes County, LUBA No. 2022-011 (2022). The Hearings Officer, in the OLU Modification Decision, was faced with Applicant requests that reduced, by a relatively small amount, the number of OLU's required to be constructed and also proposed to change "bonding" requirements. The Hearings Officer found, in the OLU Modification Decision, the 21 reduction of number of OLU units and the changes in bonding requirements would reduce the scope of the Thornburgh project and correspondingly reduce impacts from the development. The Hearings Officer, in the OLU Modification Decision, did not hold that any proposed modification of the CMP/FMP that reduces impacts could not be considered a "substantial change." By way of example only, if the Thornburgh Applicant offered a modification proposal that reduced the number of single-family units to be constructed to under 10, eliminated all golf courses, restaurants and club house facilities then the decision maker would likely be justified, despite a reduction in impacts, to find that such an application was a "substantial change." In this instance the Applicant is seeking approval to modify the CMP/FMP/FWMP in two ways (Hearings Officer summary): (1) Limit (lower) the amount of annual water use at the Resort; and (2) Change the source of FWMP mitigation water. The first modification, the limitation of the amount of annual water use allowed by the Resort, proposes to reduce the Resort's water use from 2,129 Acre Feet ("AF") to an estimated 1,460 AF. The Applicant proposes to achieve this reduction by "agreeing" not to build a golf course (which the CMP/FMP designated as "optional) and reducing the amount of water used by Resort lakes and various irrigation systems. Many opponents argue that the imposition of a lower use of water limitation meets the DCC 18.113.080 definition of "substantial change." Opponents argue that Applicant's proposed 2022 FWMP changes/alters the "type, scale, location, phasing or other characteristic of the proposed development." Applicant argued that placing a lower limit on the amount of annual water that can be used by the FWMP is not "development." The Hearings Officer agrees a reduction of water use is not "development." However, the Hearings Officer finds that what DCC 18.113.080 language "of the proposed development" is directed to is THE "proposed development." In this case THE "proposed development" is the "Thornburgh Resort." DCC 18.113.080 is asking whether or not the Thornburgh Resort, is being altered in type, scale, etc. Clearly, the "scale" of water use is being proposed to change at the Thornburgh Resort (the "proposed development"); Thornburgh proposes to place a limit (lower than approved) on the water use at the Resort. Additionally, it is clear to the Hearings Officer that reducing the number of golf courses at a destination resort can reasonably be considered a change in scale and location of an important resort amenity at the Thornburgh Resort (the "proposed development"). The Hearings Officer finds that both the Applicant's proposed reduced water use limitation and the elimination of one of three proposed golf courses meet the "alteration" portion of DCC 18.113.080. The second aspect of Applicant's proposal is the FWMP modification (from 2008 FWMP to 2022 FWMP) involving the change of sources of water to be used for fish and wildlife mitigation. Applicant, in its Burden of Proof (page 8) suggests that changing the source of mitigation water is not DCC 18.113.080 "development." Again, the Hearings Officer agrees with Applicant that changing FWMP mitigation water sources is not "development." But (once again), the Hearings Officer notes that DCC 18.113.080 is not asking if the alteration is in and of itself "development" but rather is asking if the "proposed development" (Thornburgh Resort) is being altered in type, scale, location, phasing or other characteristic? The Hearings Officer finds that a characteristic (source of water for the FWMP) of the "proposed development" (Thornburgh Resort) is being "altered." 22 Staff inquired, in the Staff Report, as to whether "other characteristics" of the Thornburgh Resort were being proposed to be altered. Staff was unsure if Applicant's proposed elimination of a golf course somehow altered the Thornburgh open space requirements. The Hearings Officer finds that the golf course being proposed to be eliminated was designated as open space in the CMP/FMP. The Hearings Officer finds Applicant did not propose to change any open space requirements. The Hearings Officer finds that so long as the Applicant meets its CMP/FMP and third level application requirements (I.e., tentative plan and site plan approval criteria) then this application does not allow the Hearings Officer to conclude that there is a proposed change in CMP/FMP open space obligations. Opponents (I.e., Bragar, November 14, 2022, page 12) suggested that Applicant's reduction of water (limitation) would result in changes to fire and sewage disposal CMP/FMP obligations. The Hearings Officer finds that Applicant did not propose any changes to the CMP/FMP fire suppression and sewage disposal obligations. The Hearings Officer finds opposition allegations related to changes in CMP fire suppression and sewage disposal obligations are not supported by substantial evidence in the record and/or legal authority. The DCC 18.113.080 definition of "substantial change" has a second requirement (in addition to the "alteration" requirement addressed in the previous paragraphs). That requirement is that the "alteration" must materially affect findings of fact on which the original approval was based. The Hearings Officer reviewed the record in this case to determine if one or more specific CMP/FMP findings would be materially affected by Applicant's proposed reduction (limitation) on the use of water. As stated by LUBA, in Gould v. Deschutes County, LUBA No. 2022-011 (2022), case participants must identify "'any findings of fact on which the original approval was based' that would be materially affected..." Since no participant in this case identified for the Hearings Officer one or more finding of fact in the original decisions (CMP/FMP) that would be materially affected the Hearings Officer finds Applicant's proposal to modify the CMP/FMP water usage or elimination of an optional golf course are not a "substantial changes" under DCC 18.113.080. With respect to Applicant's proposed changes in the source of FWMP mitigation water the Hearings Officer takes note of the following Applicant statement (Burden of Proof, page 8): "The applicant acknowledges that an amendment of the FWMP would materially affect the findings of compliance with the 'no net loss/degradation' standard but in a way that would reduce impacts." The Hearings Officer agrees with Applicant that an amendment to the FWMP changing water sources would materially affect the findings related to DCC 18.113.070 (D). Further, the Hearings Officer takes note that the FMP hearings officer findings (Hearings Officer Decision: M-07-2 & MA-08-6, hereafter the "HO FMP Decision) specifically identified water sources proposed to supply mitigation obligations and considered the impacts of those specific sources upon equally specific fish and wildlife habitat. These findings need to be changed in a wholesale fashion and not just tweaked. No reasonable person could conclude that the CMP/FMP findings related to the 2008 FWMP need only minor changes if the proposed 2022 FWMP is approved. The Hearings Officer finds that Applicant's proposed changes in sources of FWMP mitigation water would materially affect the FMP findings related to the FWMP. The Hearings Officer finds, based upon the evidence and analysis set forth above, that Applicant's proposed modification of the FWMP mitigation water sources is a DCC 18.113.080 "substantial change." 23 The Hearings Officer will address processing issues related to DCC 18.113.080 ("reviewed in the same manner"), Condition 1 ("will require a new application") and DCC 22.36.040 in separate findings below. Substantive Issue #13: Substantial Change - Condition 1 FMP Condition 1 states the following: "Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application." The Hearings Officer incorporates the preceding findings (Substantive Issue #12: Substantial Change — DCC 18.113.080) as additional findings for this section. LUBA generally agreed with the Hearings Officer's analysis as set forth in the OLU Modification Decision. LUBA concurred with the Hearings Officer that Condition 1 does not include a definition of "substantial change" and that the Hearings Officer's utilization of the DCC 18.113.080 "substantial change" definition was appropriate. The Hearings Officer, therefore, finds that Applicant's proposed modification related to reducing (limiting) the amount of water use at Thornburgh is not a Condition 1 "substantial change" to the CMP/FMP/FWMP. The Hearings Officer finds that Applicant's proposed modification to the FWMP mitigation water sources is a Condition 1 "substantial change." The Hearings Officer will address processing issues related to DCC 18.113.080 ("in the same manner") Condition 1 ("will require a new application") and DCC 22.36.040 (subsections 3. And 4.) in the findings for Substantive Issue #15: Process. Substantive Issue #14: DCC 22.36.040 The Hearings Officer incorporates the findings for Substantive Issue #12: Substantial Change — DCC 18.113.080 as additional finding for this section. DCC 22.36.040 (A) states: "An applicant may apply to modify an approval at any time after a period of six months has elapsed from the time a land use action approval has become final." The Hearings Officer finds that six months have elapsed since the FMP became final. The Hearings Officer finds this section of DCC 22.36.040 is met. DCC 22.36.040 (B) states: "Unless otherwise specified in a particular zoning ordinance provision, the grounds for filing a modification shall be that a change of circumstances since the issuance of the approval makes it desirable to make changes to the proposal, as approved. A modification shall not be filed as a substitute for an appeal or to apply for a substantially new proposal or one that would have significant additional impacts on surrounding properties." The Hearings Officer finds that DCC 18.113.080 (B) sets forth a number of requirements. Those requirements include (1) a change in circumstances has occurred since the approval, (2) the application 24 for modification is not a "substitute for an appeal," (3) the application is not a "substantially new proposal," and (4) the application would not have "significant additional impacts on surrounding properties." DCC 322.36.040 (B) also states "unless otherwise specified in a particular zoning ordinance." The Hearings Officer finds that no participant in this case presented credible evidence or persuasive argument that there is a "particular zoning ordinance" that overrides or otherwise makes DCC 18.113.080 inapplicable. The Hearings Officer finds no credible evidence or persuasive argument in the record suggesting that DCC 18.113.080 (B) is not relevant to this case. Applicant provided the following comments related to DCC 22.36.040 (B) (Katzaroff, November 21, 2022, page 26): "To the extent the hearings officer determines that a change of circumstances is necessary, both Thornburgh and project opponents have argued that current conditions related to drought and water constraints warrant reduction in water use and to provide better mitigation for water use. Thornburgh is requesting just that, an update from the 2008 FWMP to the 2022 FWMP that will provide more water instream with net benefits to habitat quality through decreases in water temperatures." Applicant provided additional support that there have been changes in circumstances (Burden of Proof, pages 6-8). The Hearings Officer concurs with the Applicant conclusionary comments quoted above and Applicant's Burden of Proof comments that there has been a change in circumstances. The Hearings Officer takes notice that the FMP proposal was originally submitted in 2008 and since that time the concepts of climate change and need for water conservation have become more accepted. The Hearings Officer also takes notice that during the interim between CMP/FMP/FWMP approval opponents have raised concerns about the amounts and sources of water to be used at the Thornburgh Resort and also challenged the viability of actually completing the current FWMP. The Hearings Officer finds that circumstances related to the Thornburgh Resort CMP/FMP/FWMP have changed making it desirable for the Applicant to modify the CMP/FMP/FWMP. The Hearings Officer finds there is no credible or substantial evidence in the record to conclude that Applicant is filing the modification requests in lieu of an appeal. Opponents have suggested that Applicant submitted the 2022 FWMP application as a substitute for an appeal. The Hearings Officer finds that opponents have not identified any specific land use decision(s) where the current application would in any way act as a "substitute for appeal" for that/those decisions. The Hearings Officer acknowledges that the 2022 FWMP modification application is a "new FWMP." However, the Hearings Officer interprets DCC 22.36.040 (B) phrase "substantially new proposal" relates to the CMP that is being proposed to be modified (See findings for DCC 18.113.080, the Destination Resort code section relating to modifications of approved CMP's). The Hearings Officer finds that the current 2022 FWMP modification application relates to a discrete and relatively small element of the CMP/FMP approval. The application in this case is not a proposal for new resort it is a proposal to modify one part of the CMP/FMP approved resort project. The Hearings Officer finds Applicant's reduction of water use is in fact just that: a request to reduce (limit) water use at the Thornburgh Resort. The Hearings Officer finds Applicant's request to eliminate one of three golf courses at the Thornburgh resort is not a new proposal; it is a request to clarify the number of golf courses that must and/or can be constructed at the Thornburgh Resort (one golf course is currently required and two may be constructed at the option of the Applicant). The changing of the 25 FWMP water sources is a requested change of the existing FWMP. The Hearings Officer finds, based upon the record in this case, that Applicant's modification proposals are not "substantially new proposal(s)." The Hearings Officer finds Applicant is proposing no new or additional housing units, infrastructure or amenities as part of the current modification proposal. While the application for the 2022 FWMP approval is a change the Hearings Officer finds there is no credible and persuasive evidence in the record that even attempts to demonstrate that the application "substantially" changes the CMP. The final requirement of DCC 22.36.040 (B) asks if the Applicant's modification proposal will have "significant additional impacts on surrounding properties." The Hearings Officer incorporates the findings for Substantive Issue #8: Definition of Surrounding properties — DCC 22.36.040 as additional findings for this section. The Hearings Officer acknowledges that opponents have made general reference to "potential impacts" on surrounding properties but have not provided the Hearings Officer with credible and persuasive evidence that those impacts are "significant" and are "additional" to the impacts of the current CMP/FMP/FWMP. DCC 22.36.040 (C) states: "An application to modify an approval shall be directed to one or more discrete aspects of the approval, the modification of which would not amount to approval of a substantially new proposal or one that would have significant additional impacts on surrounding properties. Any proposed modification, as defined in DCC 22.36.040, shall be reviewed only under the criteria applicable to that particular aspect of the proposal. Proposals that would modify an approval in a scope greater than allowable as a modification shall be treated as an application for a new proposal." The Hearings Officer addressed the "substantially new proposal" and "significant additional impacts on surrounding properties" issues in the findings for DCC 22.36.040 (B) above. Those findings are applicable to DCC 22.36.040 (C). The Hearings Officer finds that Applicant's proposed modification of the use of water, elimination of one (of three) golf courses and changing the source of FWMP mitigation water are "discrete" aspects of the CMP/FMP approval. The Hearings Officer finds no credible and substantial evidence in the record to support a conclusion that Applicant's proposal, in this case, is a modification of an approval (CMP/FMP/FWMP). The Hearings Officer finds that the proposals, in this case, are not such that they are greater in scope than allowable as a modification. The Hearings Officer finds DCC 22.36.040 allows Applicant's proposals to be treated as a modification. DCC 22.36.040 (D) states: "An application for a modification shall be handled as a land use action." The Hearings Officer finds that Applicant's proposed modifications to the CMP/FMP/FWMP have been processed as a land use action. There is no evidence in the record to support a contrary conclusion. Substantive Issue #15: Process Many opponents of Applicant's 2022 FWMP proposal argued that the Applicant should be required to submit an entirely new CMP/FMP application; in essence "start the resort approval process over." (i.e., 26 Bragar referenced the need for a new CMP/FMP application in her November 7, 2022 submission on at least the following pages — 2, 3, 9, 13, 14, 15, 17, 18, 20, 23, 25, 26, 27, 28, 35 and 37). DCC 18.113.080 states, in part, the following: "Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP." (underlining added by the Hearings Officer) Condition 1 states, in part, the following: "Any substantial change to the approved plan will require a new application." (underlining added by the Hearings Officer) The Hearings Officer found that Applicant's proposal to change the 2008 FWMP mitigation water sources, by adopting the 2022 FWMP, was a "substantial change" as described in DCC 18.113.080 (See findings above for Substantive Issue #12: Substantial Change - DCC 18.113.080) and Condition 1 (Substantive Issue #13: Substantial Change — Condition 1). Therefore, the Hearings Officer finds that the 2022 FWMP modification application must be "reviewed in the same manner as the original CMP" (DCC 18.113.080) and as "a new application." (Condition 1). The balance of these Substantive Issue #15 findings address the phrases "reviewed in the same manner" and "new application." Neither of these phrases is defined in the Deschutes County Code or in the CMP/FMP. The Hearings Officer's initial attempt to interpret the phrases "reviewed in the same manner" and "new application" considered dictionary definitions.' The phrase "reviewed in the same manner" (DCC 18.113.080) is not defined in the Deschutes County Code ("DCC" or the "Code").7 The word "review" is defined in the Merriam -Webster Online dictionary as "a formal assessment or examination of something with the possibility or intention of instituting change if necessary." The word "same" is defined in the Merriam -Webster Online Dictionary as "resembling in every relevant respect" and "conforming in every respect." Merriam -Webster lists the word "identical" as a synonym to the word same. The word "manner" is defined in the Merriam -Webster Online Dictionary as "a characteristic or customary mode of acting" and "a mode of procedure or way of acting." Combining these three terms ("review," "same" and "manner") the Hearings Officer finds a reasonable interpretation of "reviewed in the same manner" is: "identical procedure or identical way of acting." The phrase "new application" is not a defined in the Code. DCC 1.04.010 does define "Applicant and application" as "the person who applies, and the process for applying, for a franchise, license, permit or other benefit or privilege given by the County." That definition does employ the word "process" but otherwise is not useful in addressing the Condition 1 "new application" issue. The Hearings Officer notes that no participant in this case provided to the Hearings Officer a BOCC case decision or relevant LUBA or appellate decision case that provided any useful insight into a defensible interpretation of "new application." The Hearings Officer finds, based upon the evidence in the record, that the Condition 1 phrase "new application" is unique to the Thornburgh CMP/FMP. 6 The Hearings Officer acknowledges that DCC 22.36.040 may assist in interpreting "reviewed in the same manner" and "new application." The Hearing Officer, later in these findings, does address the interpretive impact of DCC 22.36.040. 7 The compete first sentence of DCC 18.113.080 states: Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP. (underlining added by the Hearings Officer) 27 The phrase "new application" is also not defined in Code. The term "new" has a temporal connotation; something that is recent and not old. The singular term "application" is defined in the code (DCC 1.04.010) as "the process for applying, for a franchise, license, permit or other benefit or privilege given by the County." The Hearings Officer finds a reasonable interpretation of "new application," utilizing definitions, is: "filing a new request for approval." The Hearings Officer attempted a slightly different definition based interpretative approach. The Hearings Officer finds that the "review in the same manner" phrase is directed towards a process that is the "same." The Hearings Officer finds that "new application" is directed towards something "new." The Hearings Officer finds that both the phrase "review in the same manner" and "new application" are directed to "process." DCC 18.113.080 mandates the same process as used for reviewing the CMP be used if a modification request is deemed a substantial change. The Hearings Officer finds the Condition 1 "new application" language is also focused on process. Condition 1 requires that a substantial change request must be processed through a new application. The Hearings Officer finds that the DCC 18.113.080 "reviewed in the same manner" language and Condition 1 "new application" language are functionally equivalent as both address processing applications. The Hearings Officer finds that an attempted harmonization of DCC 18.113.080 and Condition 1 does not assist in answering the "new application" interpretation issue. The Hearings Officer next considered the possibility that DCC 22.36.040 might assist in providing Deschutes County Code insight into how Condition 1 may be interpreted. The Hearings Officer finds that the dictionary definitions discussed above and the Hearings Officer's dictionary interpretation of the phrases at issue do not convince the Hearings Officer that "reviewed in the same manner" and/or "new application" require a "start -over" new CMP application or, in the alternative, simply a "modification of the CMP" application. The Hearings Officer next considers the relevance of DCC 22.36.040 to this interpretive issue. DCC 22.36.040 (C) states in part the following: "Any proposed modification, as defined in DCC 22.36.040, shall be reviewed only under the criteria applicable to that particular aspect of the proposal. Proposals that would modify an approval in a scope greater than allowable as a modification shall be treated as an application for a new proposal." The Hearings Officer, in earlier findings, concluded that the Applicant's proposed 2022 FWMP application did meet the requirements of DCC 22.36.040 (A) and (B). The Hearings Officer found that Applicant's proposed 2022 FWMP application was a DCC 22.36.040 allowable modification. The Hearings Officer, in the alternative, found that Applicant's 2022 FWMP proposal was not a request to modify an approval in a scope greater than allowable as a DCC 22.36.040 modification. The Hearings Officer finds the DCC 22.36.040 (C) language "shall be reviewed only under the criteria applicable to that particular aspect of the proposal" provides important interpretative assistance. The Hearings Officer finds, at least under DCC 22.36.040, that if an application is deemed a modification (not exceeding scope greater than allowable as a modification) then review is limited to only the discrete modification request. The Hearings Officer interprets the "reviewed only under the criteria applicable to that particular aspect of the proposal" as meaning that only a modification application is necessary and 28 not an application considering the entire scope of the prior approval (a "start -over" CMP/FMP application). The Hearings Officer, in the "substantial change" findings, with at least tacit support of LUBA (Gould v. Central Land and Cattle Company, LUBA No. 2022-011 (2022)) attempted to "harmonize" the DCC 18.113.080 and Condition 1 "substantial change" language. The Hearings Officer extends that "harmonization" approach to the DCC 18.113.080, Condition 1 and DCC 22.36.040 process issue. The Hearings Officer was also not comfortable interpreting "reviewed in the same manner" and "new application" phrases using dictionary definitions of the included words/terms. The Hearings Officer then attempted to use a relevant DCC section addressing "modifications of proposals" (DCC 22.36.040) to assist in interpreting "reviewed in the same manner" and "new application" phrases. The Hearings Officer finds that it is appropriate to utilize DCC 22.36.040 (C) as an interpretive aide. Hearings Officer finds that the DCC 18.113.080 phrase ("reviewed in the same manner") and the Condition 1 phrase ("new application") means that so long as a modification application meets the requirements of DCC 22.36.040 (A) and (B), and can be reasonably considered a modification request in a scope allowed by DCC 22.36.040, then only a modification application -- not a brand new CMP/FMP application -- is required by DCC 18.113.080 and Condition 1 when a substantial change modification to a CMP/FMP is requested. The Hearings Officer, in addition to the above "reviewed in the same manner" and "new application" findings takes this opportunity to respond to selected Applicant comments (Katzaroff, November 21, 2022, pages 14 & 15) set forth below: Opponent Gould argues, at Bragar OR, p. 15, and Bragar Rebuttal, p. 8, that FMP Condition 1 on its own requires a 'new application.' FMP Condition 1 states that 'Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application.' What is not contained in that condition is a requirement that a new destination resort (or CMP or FMP) must be applied for; it only requires a 'new application.' This makes sense because it makes it clear that any substantial change must be reviewed by a land use process before the County that allows public input regarding the proposed changes [footnote 16: No substantial change was requested here. However, it goes without saying that Thornburgh filed 'a new application' which is all that condition requires for compliance.] In this case, the land use process to be followed to review a new or amended FWMP is set out in CMP Condition 37 and is a review at a public hearing. As with any land use approval, the approval is limited to a review of what is requested and the land use criteria relevant to the request. This reading of Condition 1 is consistent with the code. DCC 18.113.080 specifically allows modification of a Conceptual Master Plan which in this case has been incorporated into the FMP. It provides: "Any substantial change, as determined by the Planning Director, proposed to an approved CMP shall be reviewed in the same manner as the original CMP. An insubstantial change may be approved by the Planning Director. Substantial change to an approved CMP, as used in DCC 18.113.080, means an alteration in the type, scale, location, phasing or other characteristic of the proposed development such that findings of fact on which the original approval was based would be materially affected. DCC 18.113.100 says that the new application required when an FWMP proposes a significant change from the CMP is an application to modify or amend the CMP — not to file a new CMP. 29 Further, the County has routinely permitted other destination resorts to modify their resort master plans utilizing the same process as applied to Thornburgh's same request. Exhibit 23, p. 5 (highlighting six other modification requests with the same housekeeping changes). [footnote omitted] Importantly, this argument also relies on the idea that a condition can impose additional requirements that are not authorized or based in the law or relevant code. They cannot. ORS 215.416(4)(a) only permits "such conditions as are authorized by statute or county legislation." It does not authorize a Hearings Officer to adopt conditions separately. See also, ORS 215.416(8)(a); ORS 215.427(3)(a)(approval or denial must only be based upon the County's land use regulations). The most reasonable and logical interpretation is that FMP Condition 1 is a reference to the provisions of the County code that govern amendments of land use decisions and resort plans. This requires any changes be authorized during land use review but does not require an entirely new resort application be filed." The Hearings Officer agrees with Applicant that Condition 1 does not contain a "requirement that a new destination resort (or CMP or FMP) must be applied for." As noted in the finding above the Hearings Officer concluded only a modification application and not an entirely new ("start -over") CMP/FMP application was required in this case. Applicant also stated its interpretation of the Condition 1 requirement for a "new application" makes sense because Condition 1 "makes it clear" that any substantial change must be reviewed by a public land use process. The Hearings Officer finds Condition 1 does not say that a substantial change requires a land use process requiring public input regarding the proposed changes. The Applicant certainly may infer a land use process requiring public input but the Hearings Officer finds Condition 1 does not explicitly say that. Applicant, in the comments quoted above, suggests CMP Condition 37 sets forth the land use process that applies in this case.8 The Hearings Officer notes that CMP Condition 37 was "satisfied" through the approval process of the FMP (Hearings Officer FMP Decision, page 29). This Hearings Officer finds CMP 37 does not reference a modification of the CMP/FMP/FWMP but rather is only directed towards to initial approval of the wildlife mitigation plan. The Hearings Officer finds that even if Condition 37 language were to be considered relevant and/or instructive to Condition 1, the process in this case does in fact involve a public hearing with the same participatory rights allowed in the CMP approval hearing. Condition 37 is not helpful in interpreting Condition 1. Had the FMP hearings officer intended to incorporate CMP condition 37 into Condition 1, that hearings officer could have done so; however, she did not. Applicant comments that DCC 18.113.080 specifically allows for the modification of the CMP. The Hearings Officer agrees. However, what is being considered here is the interpretation of language contained in a specific condition of approval. The Hearings Officer finds the Condition 1 "new application" language somehow must defer to the language of DCC 18.113.080 is not correct. Applicant argues that the county has routinely permitted other destination resorts to modify FMP's using the same process proposed by Applicant in this case is true. However, the Hearings Officer notes that the cases reviewed by the Hearings Officer either (1) do not contain the exact language of the 8 CMP Condition 37: Applicant shall demonstrate compliance with DCC 18.,113.070 (D) 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 to allowed in the CMP approval hearing. 30 Thornburgh CMP/FMP Condition 1, or (2) those cases do not involve requests to make substantial changes (exception: Eagle Crest Long -Term Sewage Case, MC-02-3, MC-02-4, MC-02-5). The Eagle Crest — Long Term Sewage Case was processed as a modification proposal and only addressed the modification relevant criteria but there is no reference in the decision to the Eagle Crest FMP containing the CMP/FMP Condition 1 "new application" language. The Hearings Officer finds that blindly deferring to DCC 18.113.080, when Condition 1 does in fact exist and is relevant and applicable, is not legally justified. Finally, Applicant argues that somehow ORS 215.416(4)(a) applies to the Condition 1 analysis in this case. The Hearings Officer references Applicant's oft -used "collateral attack" argument; it is improper to contest the validity of a final decision. The FMP is a final decision. Condition 1 is included in the FMP final decision. Applicant had the right to object to Condition 1 as being violative of ORS 215.416 and/or ORS 215.427. The Hearings Officer finds Applicant's ORS 215.416 and/or ORS 215.427 argument was not sufficiently developed to allow the Hearings Officer to meaningfully review and decide that issue. The Applicant also argued that the Hearings Officer should consider DCC 18.113.100 in the context of interpreting "new application" in Condition 1. DCC 18.113.100 (B) states: "If the Planning Director finds evidence in the FMP of a substantial change from the CMP, the Planning Director shall advise the applicant to submit an application for modification or amendment of the CMP." The Hearings Officer finds Applicant's DCC 18.113.100 (B) argument inapposite. This section only relates to the "process for approval of Final Master Plan." The CMP and FMP are finalized and no longer subject to approval and/or appeal. DCC 18.113.100 was pertinent at one time but that time has passed. In conclusion the Hearings Officer, in this case, was faced with a difficult issue — what does the DCC 18.113.080 language "reviewed in the same manner" and Condition 1 language "new application" mean? The Hearings Officer found the record to contain a dearth of legal support for any particular definition/interpretation of "reviewed in the same manner" and "new application." In the end the Hearings Officer reviewed Deschutes County Code, prior modification land use decisions and the comments of Applicant, Staff and opponents. In the end the Hearings Officer found the DCC 18.113.080 language "reviewed in the same manner" and Condition 1 language "new application" means that Applicant was required to submit a "new modification application" and not a "new CMP/FMP application." Substantive Issue # 16: Relevant Approval Criteria Staff, in response to a request by the Hearings Officer at the Hearing, provided an open -record memorandum (House, November 7, 2022). Staff addressed the issue of what criteria should be considered in this case as follows: "Staff agrees with the applicant that the review in these land use review proceedings for the application is such that, if the Hearings Officer determines the proposal will effect a 'substantial change,' the application may nonetheless be considered as against the applicable criteria per DCC 18.113.080, which requires review of a proposed modification of a CMP 'in the same manner as the original CMP.' The 'same manner' provision in DCC 18.113.080 means an evaluation of the entire 31 resort, as modified, against all of the approval criteria under 18.113.070, Approval Criteria, and all criteria under DCC 18.113.050, Requirements for Conditional Use Permit and Conceptual Master Plan Applications. The applicant appears to argue the question of 'substantial change' is not determinative and asserts that there will not be any procedural error, or resulting substantial prejudice, because the applicant has consented to a heightened process. This position is based in part on the applicant's position that DCC 18.113.100 allows FMPs to vary from CMPs in ways that are not substantial, and the position that 'reduction of water use and choice to not build an optional golf course is not a substantial change.' Similarly, DCC 18.113.080 allows for Planning Director review of insubstantial changes to an approved CMP, but requires a full review of a proposed modification that results in 'substantial change." The Hearings Officer incorporates the findings for Substantive Issue #15: Process as additional findings for this section. The Hearings Officer finds that DCC 22.36.040 (D) is applicable to this application. The Hearings Officer finds the relevant approval criteria for a DCC 22.36.040 modification of approval application are only those that relate to the discrete changes being requested. The Hearings Officer, in the context of DCC 22.36.040 (C), finds Staff's recommendation that "all CMP" approval criteria must be considered is not correct. Substantive Issue # 17: DCC 18.113.070 (D) — "No Net Loss" Overview: The Hearings Officer finds DCC 18.113.070 (D) to be the most important criterion in this case. DCC 18.113.070 (D) is commonly referred to as the "No Net Loss" standard or test. No participant in this case indicated that DCC 18.113.070 (D) was irrelevant to the determination of whether Applicant's proposed 2022 FWMP modification should be approved. DCC 18.113.070 (D) states: "Any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource." The primary Thornburgh Resort document addressing DCC 18.113.070 (D) is the Thornburgh Fish and Wildlife Mitigation Plan. The existing Thornburgh Fish and Wildlife Mitigation Plan shall be referred to as the 2008 FWMP. The current proposal, for the purposes of this decision, shall be referred to as the 2022 FWMP. The version of Applicant's 2022 FWMP considered by the Hearings Officer is identified by Applicant as the Fish and Wildlife Mitigation Plan — 2022 FWMP Relating To Potential Impacts of Thornburgh's Reduced Ground Water Withdrawals on Fish Habitat, Cascade Geoengineering, LLC, August 16, 2022 Reorganized and Updated November 7, 2022. The Hearings Officer refers to this document in the findings for this section as the 2022 FWMP. Even though a detailed history of the 2008 FWMP will not be given in this decision some history of the development and interpretation of the 2008 FWMP is appropriate. The wildlife mitigation topic was first considered as part of the CMP approval process. The BOCC, at the CMP stage (15t application/approval stage in Deschutes County for a Destination Resort), deferred a final decision related to adoption of a FWMP until the FMP stage (2nd application/approval stage for Destination Resort) Central Land and Cattle Company, LLC. V Deschutes County & Gould, LUBA No. 2015-107 @37 (2016). The 2008 FWMP was eventually approved as part of the FMP application/approval process. After extensive litigation the FMP and FWMP were finally approved. The 2008 FWMP was found to meet 32 the DCC 18.113.070 (D) "No Net Loss" standard Gould v. Deschutes County, LUBA No 2021-112 @ 11 (2022). The hearings officer issuing the Hearings Officer FMP Decision (October 8, 2008 — Hearings Officer Corcoran -Briggs) provided insight into the evidence and arguments leading to approval of the 2008 FWMP. The Hearings Officer FMP Decision (Page 24)9, in part, made the following findings: "The applicant acknowledges that the proposal require[s] the development of wells on the property that will affect basin water flows. However, the applicant argues that it has addressed those Impacts by purchasing mitigation credits from COID, and by acquiring irrigation water rights that will return water to Deep Canyon Creek. They argue that both OWRD and ODFW have reviewed its proposal and have agreed that the proposal mitigates both water quantity and quality that will be removed from the aquifer due to the resort development. The applicant supplied a copy of an agreement between the owners of Deep Falls Ranch and the Daniels Group showing those owners have agreed to the removal of two dams that diverted flow from Deep Canyon Creek. [footnote omitted] In response to testimony from opponents that the proposed mitigation does not adequately address increases in water temperature in Whychus Creek, the applicant argues its proposal will have little or no impact on water temperatures on the creek. Even if water temperatures in Whychus Creek does increase incrementally, the applicant asserts that the increase can be addressed by requiring the applicant to fund a water conservation project sponsored by the Three Sisters Irrigation District to return 106 acre-feet of water to instream uses. The OWRD mitigation requirement adequately addresses water quantity; it does not fully address water habitat quality. Its assumptions regarding the benefits of replacing more water during the irrigation season than is consumed on an average daily basis by the resort does not account for the higher water consumption that will likely occur during the summer months. Therefore, the hearings officer concludes that the additional mitigation offered through the Three Sisters Irrigation District restoration program is necessary to assure that water temperatures in Whychus Creek are not affected by the proposed development." The hearings officer, in the FMP HO Decision, imposed conditions of approval in order to assure the 2008 FWMP fully met the "No Net Loss" mitigation obligations; the most relevant is FMP Condition 38. The Hearings Officer notes that in addition to the FMP HO Decision the BOCC, LUBA and Oregon appellate courts have all taken the opportunity to refine how the DCC 18.113.070 (D) "No Net Loss" standard should be interpreted. The Hearings Officer, in this decision, intends to follow the interpretive guidance set forth in relevant hearings officer, BOCC, LUBA and appellate court decisions related to approval of the FMP and 2008 FWMP. The Hearings Officer does take note of a few of the LUBA and Oregon Court of Appeals holdings that are relevant to this decision.10 First, to satisfy the "No Net Loss" standard the record must contain 9 See also, FMP HO Decision, page 24 "The meaning of the standard, and the sufficiency of the evidence to address it was the major focus of the parties in the FMP proceeding. The applicant provided a wildlife mitigation plan that had been reviewed by the BLM and ODFW, and both agencies endorse the applications identification of likely impacts on fish and wildlife, and conclude that the applicant's plan addresses the impact of the development on those resources such that the 'no net loss' standard of DCC 18.113.070(D) is satisfied." 10 The Hearings Officer does not represent that the cited BOCC, LUBA or Oregon Court of Appeals cases are the only cases addressing and/or resolving a particular issue. The citations are intended only to direct the reader to at least one relevant case and holding. 33 substantial evidence that the 2022 FWMP provides mitigation water — of both the quantity and quality required by the 2022 FWMP — before pumping water for uses allowed by the approved phase of development. Gould v. Deschutes County & Thornburgh Resort Company, LLC. 233 and Gould & Central Oregon Land Watch v. Central Land and Cattle Company, LLC, LUBA No. 2022-026 @ 13 (2022). The focus of the "No Net Loss" standard is the preservation of habitat Gould v. Deschutes County & Thornburgh Resort Company, LLC. 233 Or App 623 @ 634 (2022). The 2022 FWMP does not need to mitigate every potential impact on habitat rather impacts must be minimized or offset impacts. Gould v. Deschutes County & Central Land and Cattle Company, LLC. 2018-008 @ 26 (2018). The 2022 FWMP mitigation plan, to meet the "No Net Loss" Standard, must provide mitigation water that is likely and reasonably certain to succeed in mitigating any adverse impacts. Gould v. Deschutes County & Central Land and Cattle Company, LLC. 2018-008 @ 28 (2018). Technical Evidence Related to the "No Net Loss" Standard Applicant, in its final argument (Katzaroff, November 21, 2022, pages 3 & 4) provided a listing of reports/memorandums/models submitted in support of the proposed 2022 FWMP satisfying the "No Net Loss" standard. The Hearings Officer includes Applicant's list below: "1. Flow and Temperature Modeling of the Middle Deschutes River, Kellie Vache, Ph.D., and Joe Eilers, PH-WQ, Resource Specialists, Inc., dated October 2022. (RSI-1) 2. Evaluation of the Impacts of Proposed Groundwater Pumping at Thornburgh Resort Project, Pradeep Mugunthan, Ph.D., Four Peaks Environmental Consulting, dated 10/19/22. (GSFIow). 3. Flow and Temperature Modeling of the Middle Deschutes River, Part II -Impacts of GSFIow-based Changes in Stream Discharge, Kellie Vache, Ph.D., and Joe Eilers, PHWQ, Resource Specialists, Inc., dated October 22, 2022. (RSI-2) 4. Evaluation of the Fish Habitat Impacts of Proposed Groundwater Pumping at Thornburgh Resort Project from RSI-1, Lucius Caldwell, Ph.D., Four Peaks Environmental, dated 10/21/22. (Fish 1) 5. Evaluation of the Fish Habitat Impacts of Proposed Groundwater Pumping at Thornburgh Resort Project to Include Modeled Changes in Surface Water Resulting from Changes in Groundwater Discharge, Lucius Caldwell, Ph.D., Four Peaks Environmental, dated 10/21/22. (Fish 2) 6. Evaluation of Flow and Temperature Mass Balance Calculations for Crooked River. Lucius Caldwell, Ph.D., Four Peaks Environmental, dated 10/24/22. (Fish -Crooked River) 7. Evaluation of Flow and Temperature Mass Balance Calculations for Little Deschutes River. Lucius Caldwell, Ph.D., Four Peaks Environmental, dated 10/24/22. (Fish -Little Deschutes) 8. Supplemental Memorandum Regarding Reduction of Water Needs and Amendment of FWMP for Thornburgh Resort. Jim Newton, C.W.R.E., P.E., R.G., Cascade GeoEngineering, dated October 24, 2022. (CGE -2) 9. Updated Fish Habitat Evaluations in the Crooked River, Whychus Creek, and the Deschutes River, Lucius Caldwell, Ph.D., Four Peaks Environmental, dated 11/14/22. (Fish -Spring Evaluations) Additional flow and thermal modeling work which was undertaken in response to questions and requests by staff at the Oregon Department of Fish and Wildlife. This work included: 10. Flow Modeling by Four Peaks to determine impacts of Thornburgh pumping with and without additional flow from the transfer wells. Report to ODFW in email on November 2, 2022. See Exhibit 30. 11. Flow Modeling by Four Peaks to determine the seasonality of impacts. Reported to ODFW in email on November 2, 2022. See Exhibit 30. 34 12. Flow Modeling by Four Peaks to determine the impacts of the ODFW requested "Spring" reaches in the Deschutes River, Whychus Creek, and the Crooked River. Reported to ODFW in email on email on November 14, 2022. See Exhibit 26. 13. Thermal and Flow analysis by RS1 to determine thermal impacts in the ODFW Springs. Reported to ODFW in email on November 14, 2022. See Exhibit 26. The technical work was completed by 4 individuals, 3 holding Ph.D.'s, 1 holding a master's degree, all in relevant disciplines. Mr. James Newton, Cascade GeoEngineering, holds the professional designations of Certified Water Rights Examiner C.W.R.E., Professional Engineer, P.E., and Registered Geologist R.G. (See Resumes previously submitted) The extensive technical analysis these scientists performed provides detailed support for the original conclusions reached by Cascade GeoEngineering, that the 2022 FWMP complied with the NNL found in DCC 18.113.070(D). In addition, Thornburgh's experts provided rebuttal evidence, including: 14. Four Peaks — November 14: Comments on E-PUR Memorandum Regarding Groundwater Impacts. (Exhibit 29) 15. CGE — November 14: Responses to E-PUR Memorandum Dated November 4, 2022, and General Responses to ODFW Concerns. (Exhibit 33) 16. RSI — November 14: Response to Reviewer Comments Regarding QUAL2Kw Model Application. (Exhibit 34)" Applicant, in its Final Argument (Katzaroff, November 21, 2022, pages 4 & 5) also volunteered a brief summary of "technical" evidence provided by opponents. The Hearings Officer finds the Applicant's comments quoted below are a fair summary of opponents' opposition technical evidence but certainly do not represent a complete or comprehensive discussion of that evidence. Applicant's summary follows: "The only technical evidentiary submittals in this record from another party are three technical memorandums submitted on behalf of Ms. Gould. All three memorandums are drafted by E-PUR LLC's Mr. John Lambie: * E-PUR LLC Technical Memorandum dated September 9, 2022; Bragar OR, Attachment 16, pps. 294-303. * This memorandum comments only two transfers (T-14074 and T-14075) proposed by Thornburgh and does not comment on the 2022 FWMP. * E-PUR LLC Technical Memorandum dated November 4, 2022; Bragar OR, Attachment 38. * This memorandum appears to be the only memorandum that provides any sort of technical response to the 2022 FWMP. CGE, RSI, and Four Peaks each address it as outlined above. * E-PUR LLC Technical Memorandum dated November 14, 2022; Bragar Rebuttal, Attachment B. * This memorandum argues three things, summarized at Attachment B, p. 1-2: o 1) that "water rights identified in Thornburgh's FWMP demonstrates that it cannot provide sufficient water for fire safety protection"4; o 2) that "water rights identified in Thornburgh's FWMP demonstrates that it cannot handle wastewater load without revising the CMP"5; and 35 0 3) the "water rights identified in Thornburgh's FWMP demonstrate that its plan for water supply does not have the resilience that is required by OWRD for a municipal water supply. The Hearings Officer is tasked with weighing technical evidence in the record. The Hearings Officer finds that the technical evidence submitted by Applicant is extensive. The Hearings Officer finds Applicant's technical evidence appears to utilize recognized modeling methods, and contain data/conclusions related addressing habitat impacts resulting from the proposed 2022 FWMP. The Hearings Officer finds Applicant's technical evidence constitutes substantial evidence of the facts and conclusions stated in its submitted technical reports. The Hearings Officer acknowledges that the opposition technical evidence does challenge Applicant's consultant's modeling and data. The Hearings Officer finds that Applicant's technical evidence was prepared by credentialed experts who provided an extreme level of analysis and detail. The Hearings Officer finds opponents expert evidence is not nearly as comprehensive as Applicant's. The Hearings Officer finds opponents expert evidence is less focused on the specific water sources proposed by Applicant and their impacts on fish habitat. The Hearings Officer finds opponents technical evidence is less credible and persuasive than the technical evidence proved by Applicant. ODFW Input The Hearings Officer finds that the Hearings Officer FMP Decision appeared to rely heavily upon the Oregon Department of Fish and Wildlife's ("ODFW") conclusion that the proposed 2008 FWMP met the "No Net Loss" standard. In this case the ODFW strongly indicated, based upon the evidence it reviewed prior to making its final submission (November 7, 2022), that the proposed 2022 FWMP does not meet the DCC 18.113.070 (D) "No Net Loss" standard. ODFW concluded (Page 4 of 8) that: "Based on our current understanding of the 2022 Mitigation Proposal, it is yet unclear if the 2022 will result in outcomes that meet the County's standard in DCC 18.113.070(D), including actions that fully mitigate the Habitat Category 2 impact through in -kind, in -proximity mitigation. The proposed 2022 Plan is lacking in detail to provide substantial evidence for stated claims, though some of the follow up correspondence and information submitted late to ODFW (and perhaps to the record) may include applicable evidence." ODFW (November 7, 2022, pages 4 of 8) listed "specific concerns" leading up to the agency's conclusion that the 2022 Mitigation Proposal did not meet the "No Net Loss" standard. While likely oversimplifying ODFW's concerns in lay terms the Hearings Officer summarizes reasons ODFW appears to conclude that the 2022 FWMP does not meet the "No Net Loss" standard: • Deep Canyon Creek mitigation water (per 2008 FWMP) provided local/nearby habitat benefits in close proximity to the Thornburgh Resort (where consumptive water would be sourced) and the proposed 2022 FWMP plan relies upon discontinuing use of groundwater sources "which allegedly provide benefits to the basin for over 100 miles. The claims for these distances are unsubstantiated and unlikely to be realized for this distance" (bolding added by the Hearings Officer); and • "Discontinuation of groundwater use does not necessarily result in an equal amount of surface flow, nor does it discharge at the same period or at the same location;" and • Modeling used by Applicant's experts/consultants was limited; and • Some water rights relied upon by Applicant in the 2022 FWMP "lack verified past use data;" and 36 • Offsetting Thornburgh Resort pumping with groundwater transfers "provides no assurances that groundwater discharge from ecologically important seeps and springs and surface water flows are protected in the future;" and • "Additional water use" is proposed to be mitigated "solely through OWRD's Groundwater Mitigation Program" which does not account for thermal impacts on fish habitat; and • Assurance of compliance with the FWMP 2022 water mitigation proposal is uncertain and/or ambiguous (bolding added by the Hearings Officer); and • The quantity of "excess water" mitigation is uncertain; and • Protection of habitat during "shoulder months" (period of time prior to and immediately after irrigation season) is not assured; and • Condition 38 may not provide an objective process to assure compliance with the proposed 2022 FWMP (bolding added by the Hearings Officer). Applicant (DeLashmutt, November 14, 2022) provided a comprehensive bullet point by bullet point response to the ODFW November 7, 2022, concerns which are summarized above. The Hearings Officer also finds that the DeLashmutt November 14, 2022, record submission provides a comprehensive response to the ODFW concerns. The Hearings Officer, despite the findings in the preceding paragraph, remains concerned about how to deal with the ODFW November 7, 2022, comments. Recall that the hearings officer issuing the Hearings Officer FMP Decision emphasized that the ODFW conclusion that the 2008 FWMP met the "No Net Loss" standard was an important factor. The Hearings Officer FMP Decision made it clear that ODFW's support of the 2008 FWMP was relevant and perhaps critical to her decision to find the "No Net Loss" standard was met. While not required by the Deschutes County Code, or other law/rule, the Hearings Officer finds that ODFW's input is a relevant evidentiary consideration in determining if the "No Net Loss" standard is met.11 ODFW requested prior to, at and after the Hearing (ODFW letters dated October 21, 2022, November 7, 2022 and Hearing public testimony) additional time to review, analyze and then coordinate with Applicant regarding the proposed 2022 FWMP. Applicant's legal counsel, at the Hearing, declined the Hearings Officer's invitation to provide additional time (beyond the open -record schedule set by the Hearings Officer) for ODFW to submit a comprehensive review and analysis of Applicant's technical submissions. Pursuant to Applicant's listing of its technical studies12 they were dated October 19, 2022 (item 2), October 21, 2022 (items 4 & 5), October 22, 2022 (item 3), October 24, 2022 (items 6, 7 & 8), November 2, 2022 (items 10 & 11), and November 14, 2022 (items 9, 12, 13, 14, 15 & 16). The Hearing occurred on October 24, 2022, the open -record period for new evidence ended November 7, 2022, and the open - record period for rebuttal evidence ended on November 14, 2022. As noted in the procedural issue findings above the Hearings Officer is fully aware of relevant state statutes and county code related to post hearing submissions. 11 Cascade Geoengineering, November 7, 2022, page 1- "The 2022 FWMP presented very detailed changes to the original 2008 FWMP that was approved by the Oregon Department of Fish and Wildlife (ODFW)." [emphasis added by the Hearings Officer] 12 See Katzaroff, November 21, 2022, Final Argument; dates and item number references are extracted from technical expert listing found on pages 3 and 4. 37 The Hearings Officer is also fully aware of the quantity (number of pages) and complexity of the Applicant's post hearing record submissions. Having reviewed, as best a lay person can do that, Applicant's technical submissions it is easy for the Hearings Officer to say that expecting an authoritative response from ODFW, within the time allowed by the open -record schedule, was not likely. The Hearings Officer finds that Applicant, fully within its legal rights, denial of additional time for ODFW review of Applicant's technical submissions, precluded the Hearings Officer from being able to consider a meaningful ODFW response. The 2022 FWMP — Is the 2022 FWMP likely and reasonably certain to succeed Moving on from the "technical evidence" aspect of the proposed 2022 FWMP the Hearings Officer next considers whether the 2022 FWMP is "likely and reasonably certain to succeed." As noted by the Oregon Court of Appeals, in a case they reference as Gould IV, "a final adjudication of compliance requires a showing that compliance with DCC 18.113.070 (D) is 'likely and reasonably certain to succeed." Gould v. Deschutes County, 233 Or App 623 (2010) citing 227 Or App at 610. In this decision the Hearings Officer interprets the "likely and reasonably certain to succeed" language in the context of the proposed 2022 FWMP plan logistics. Restated, this Hearings Officer inquiry asks if the 2022 FWMP, as drafted, provides the Applicant, interested persons, and future decision makers (including but not limited to the public, County Staff, hearings officers, BOCC, LUBA, Oregon Court of Appeals and Oregon Supreme Court) clear and enforceable standards that ensure the plan is likely and reasonably certain to succeed? At this point the Hearings Officer steps back to recognize the reality facing the Applicant, opponents and Staff with respect to the Thornburgh Resort: The Thornburgh Resort is one of the most litigated development projects in the State of Oregon. It is not lost on this Hearings Officer (who has presided over and issued at least five Thornburgh land use decisions) that the 2008 FWMP mitigation obligations have been the been the focus of multiple disputes requiring, in many instances, BOCC, LUBA, Oregon Court of Appeals and Oregon Supreme Court intervention. Even during this case issues have been raised as to whether or not the Applicant has strictly met the requirements of the 2008 FWMP. For example, the 2008 FWMP states (page 1) that "Thornburgh will use a total of 2,129 acre feet of water..." The source of that water remains controversial as of the date of this decision. The Hearings Officer notes that the 2008 FWMP used phrases such as "most likely," "if needed, can be secured from sources," and "continue to pursue." The Hearings Officer notes that Condition 10, which is closely related to the 2008 FWMP, uses terminology "updated documentation for the state water right permit and an accounting of the full amount of mitigation." Condition 38 requires the Applicant to "abide by the April 2008 Mitigation Plan...and agreements with the BLM and ODFW for management of off -site mitigation efforts." Hindsight is 20/20 and had the hearings officer and other decision makers involved with the FMP and FWMP approval process had been aware of the challenges the language contained in those decisions has caused she/they may have imposed more definitive and objective language in those documents. The Hearings Officer, in this case, finds that the proposed 2022 FWMP is certainly longer (number of pages) and contains significantly more narrative description than the 2008 FWMP. The Hearings Officer is appreciative of Applicant's November 7, 2022 "Executive Summary" and "Reorganized and Updated November 7, 2022 FWMP" documents. 38 The Hearings Officer believes that the actual "plan" which must be adhered to if the 2022 FWMP modification application is approved is described in Section H (starting on page 14). But this interpretation may be wrong. What is clear to the Hearings Officer is that the 2022 FWMP commits to reduce water use (needs from 2129 AF to 1,460 AF and consumptive use from 1,356 AF to 882 AF). Section H.A.1. (Limit Pumping to a Maximum of 1,460 AF Annually) includes the statement "Thornburgh will submit as part of the annual Mitigation Report summaries of the resort's annual water reports that are required to be provided to OWRD." This part of the proposed 2022 FWMP is clear and Applicant's commitment may reasonably be considered likely and reasonably certain of success (page 4, and page 14 — Section H.A.1). Sections D and H address directly the DCC 18.113.070 (D) "No Net Loss" standard. As best the Hearings Officer can ascertain Sections D and H are the "meat" of the 2022 FWMP. These sections appear to set forth Applicant's mitigation obligations. The Hearings Officer finds Sections D and H seem to be interrelated in some way but the two sections leave a great deal to the imagination.13 The Hearings Officer attempted, on multiple occasions and for varying lengths of time, to outline Sections D and Section H; particularly the portions of Sections D and H that relate to the various water rights associated with use at the Thornburgh Resort and water rights intended for mitigation purposes. The Hearings Officer is certain that the Applicant, Applicant's legal counsel and Applicant's experts/consultants believe that what is presented in sections D and H of the 2022 FWMP are clear. However, the Hearings Officer finds interpreting Sections D and H is challenging because these sections overlap and supplement each other in ways that are not clear to the Hearings Officer. The 2022 FWMP Section D appears to establish a series of options open to the Applicant to meet the "No Net Loss" standard. For example, Section D. states that the Applicant commits to "discontinue pumping water in the location appurtenant to the right" then states "if any transfer is not approved, the water right could be cancelled in lieu of mitigation (both the groundwater and surface water rights) or transferred instream (just the surface water rights) for mitigation credits." The Hearings Officer finds the "if any transfer is not approved..." language is not mirrored or reflected in Section H. The Hearings Officer is unsure if the inclusion of the quoted language was not intended to be in Section H was intentional. The Hearings Officer believes that the Applicant, public, Staff, BOCC and any appellate authority should be able, without resorting to an "expert" or "consultant" or "attorney," to comprehend and apply the language used in the 2022 FWMP. Sections D and H of the proposed 2022 FWMP do not meet or satisfy that goal. Section H.4 (remaining water use BFR...) provides an additional area of confusion and imprecision of the proposed 2022 FWMP. This paragraph begins by stating that "the water rights described in 1. above will provide up to 1,217 AF of the resort's total water needs of 1,460 AF leaving at least 243 AF of additional water needed." Footnote 20 follows the quoted statement and says that "if there was some reduction in the amount Thornburgh is allowed to transfer under the LeBeau water right, like the 7% reduction 13 The Hearings Officer references section labels (I.e., Section D and Section H) as set forth in the 2022 FWMP. The Hearings Officer does, however, note that the Section labeling (Reorganized and Updated November 7, 2022) does not include not a "Section E." 39 expected in the NUID transfer, the amount of additional water could be increased somewhat." The Hearings Officer defies an attorney or professional planner, let alone a lay person, to objectively describe the meaning of that language. The Hearings Officer finds the language contained in Applicant's proposed 2022 FWMP Section H. is imprecise. The Hearings Officer in this case is fully aware that the primary reporting and enforcement mechanisms for matters related to the FWMP are FMP Conditions 38 and 39. Condition 38 states: "The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of off -site mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek." The Hearings Officer reviewed Applicant's Burden of Proof and notes that it provided (page 3, paragraph 7) a clarification of what constitutes compliance under Condition 38.14 The Hearings Officer could find no language remotely similar to the Burden of Proof Condition 38 language in the 2022 FWMP version 1 (August 16, 2022) or version 2 (November 7, 2022). Applicant, in its pre -hearing record submission (Katzaroff, October 21, 2022, page 4), stated that: "Staff is concerned with the implementation of FMP Condition 38 and assurance of ongoing compliance. Condition 38 was adopted as part of the FMP approval. It requires that Thornburgh follow the FWMP and its mitigation measures and to report mitigation actions to the County. Thornburgh will follow the plan." Applicant, in its pre -hearing record submission (Kataroff, October 21, 2022, page 4), also said that Condition 38 "is imprecisely worded." (emphasis added by the Hearings Officer) The Hearings Officer finds Applicant's approach to Condition 38 in the context of the 2008 FWMP and, if approved, 2022 FWMP misses the mark. The Hearings Officer finds that as it now stands (per 2008 FWMP) and as proposed (2022 FWMP), Condition 38 must be viewed as the only practical method of 14 Burden of Proof, Page 3, Item 7. "The purpose of this paragraph 7 is to clarify what constitutes compliance with FMP Condition 38, whether during the review of Resort land use applications, as reported as part of annual monitoring, or for any other purpose. Once the Resort's water provider [footnote omitted] has purchased water rights to be used for pumping or mitigation and pumping at the point of diversion or appropriation of the certificate has been discontinued, compliance with Conditions 3, 4 and 6 shall be found to be met in the manner discussed in this paragraph 7. As noted below, compliance will occur differently for water appropriated from a surface water Point of Diversion versus a groundwater Point of Appropriations or for a mitigation credit that is acquired as follows: a. Point of Appropriation -Groundwater: Compliance occurs upon submittal to OWRD of any of the following: an assignment of the water right to Thornburgh, an application that seeks OWRD approval of a transfer to pump at the Resort property, or cancellation in -lieu of mitigation so long as any use of the particular water right by farmers discussed below, if any, has been discontinued. b. Point of Diversion -Surface Water: Compliance occurs upon submittal to OWRD, and OWRD approves any of the following: an application that transfers to pump at the Resort property, application that transfers the water to an in - stream lease, cancellation in -lieu of mitigation, or transfer to obtain mitigation credits, so long as any use of the particular water right by farmers discussed below, if any, has been discontinued. c. Mitigation Credit: In the event that Thornburgh acquires mitigation credits, compliance occurs when Thornburgh provides proof of ownership or proof of submittal to OWRD of an application to transfer water in -stream." 40 assuring compliance with the FWMP.15 It cannot be said that the 2008 FWMP or the proposed 2022 FWMP can be considered likely and reasonably certain to succeed without something akin to Condition 38. The Hearings Officer finds, at a minimum, Condition 38 needs to be modified to reference the 2022 FWMP. Condition 38, as it currently exists, mandates that Applicant "shall abide" by "agreements with BLM and ODFW for the management of off -site mitigation efforts." Applicant represented (Katzaroff, October 21, 2022, page 4) that no Applicant/ODFW agreement exists. While Condition 38 is not clear on timing, whether required to have been done or must be done at some time in the future, the Applicant has not provided any evidence of well removal on the Subject Property. The Hearings Officer also finds that Condition 38 requires coordination with ODFW to model stream temperatures. The Hearings Officer, based on the evidence in the record, is uncertain if that provision remains relevant. The Hearings Officer finds that Applicant's statement that Condition 38 is "imprecisely worded" is an understatement. The Hearings Officer's above stated Condition 38 comments are amplified by ODFW. ODFW stated, in its November 7, 2022 record submission (page 6 of 8) the following: "ODFW is concerned with the lack of information regarding how compliance will be ensured over time. Compared to legally protected instream water rights, the monitoring, reporting, compliance, and enforcement of mitigation via groundwater transfer is complex and difficult to quantify. It is our understanding that compliance (or noncompliance) with the mitigation measures will be established by annual reporting required by FMP Condition 38, but it is unclear who reviews the reports, who has access to the reports, what repercussions are in place for non-compliance, and if/how ODFW would be engaged in habitat protection. OWRD administrative processes will only address part of the compliance necessary, and sole reliance on OWRD well and streamflow monitoring data is unlikely to be at the appropriate scale and locations to track compliance. Surface water quality and quantity must be replaced in perpetuity or for the life of the project as intended or continued pumping at the Resort would result in a net loss of the resource." Applicant responded to the above -quoted ODFW comments (DeLashmutt, November 14, 2022, page 8) as follows: "Thornburgh will provide annual reporting of mitigation measures taken under both the terrestrial wildlife and FWMP plans. This reporting will include the water usage and the mitigation measures taken under this 2022 FWMP. Thornburgh agrees to provide copies of reporting to Deschutes County, ODFW and in case of that mitigation measures taken on the Terrestrial Wildife plan, the BLM." The Hearings Officer finds the Thornburgh quoted comments to simply repeat the Condition 10 and Condition 38 reporting requirements that currently exist and then to proceed to propose language to modify those conditions by adding recipients of the reports.16 The Hearings Officer repeats that the proposed 2022 FWMP does not include any reporting requirements. As such the proposed 2022 FWMP is totally reliant upon Conditions 38 and 39 to assure compliance. 15 Condition 39 relates to Three Rivers Irrigation District conservation project. Applicant did not propose to change its Condition 39 obligations. 16 Condition 38 requires annual reporting to the county only. Condition 10 is silent who the required documentation must be sent to; presumably it is the county as the information must be provided "at the time of tentative plat/site plan review. 41 The Hearings Officer finds that unless clear, objective and enforceable compliance language contained in the 2022 FWMP, or a meaningful modification of the existing Condition 38, there can be no assurance that the 2022 FWMP is "likely or reasonably certain to succeed." The Hearings Officer finds that Applicant did not propose modifying the language of Condition 38 and if it did the Hearings Officer could not find it in the proposed 2022 FWMP. The Hearings Officer finds the application in this case does not provide clear, concise and objective compliance standards to assure that the 2022 FWMP will secure the water rights represented in the 2022 FWMP and that its proposed 2022 FWMP mitigation is likely and reasonably certain to assure that the DCC 18.113.070 (D) "No Net Loss" standard is met. The Hearings Officer finds Applicant failed to carry its burden of proof requirement that its proposed 2022 FWMP meets relevant approval criteria. The Hearings Officer finds, based upon the findings above, that Applicant's proposed 2022 FWMP modification application must be denied. Summary & Conclusion — DCC 18.113.070 (D) The Hearings Officer finds Applicant's technical data and conclusions related to the impacts of various water rights proposed to be used as OWRD and DCC 18.113.070(D) mitigation is generally credible in relation to the proposed 2022 FWMP potentially meeting the "No Net Loss" standard. The ODFW questioned Applicant's technical data, modeling, approach and conclusions. Opponents questioned the credibility of Applicant's technical data, modeling, approach and conclusions. ODFW expressed reservations about the proposed 2022 FWMP meeting ODFW standards and the DCC 18.113.070 (D) "No Net Loss" standard. The Hearings Officer finds that Applicant (DeLashmutt, November 14, 2022) provided a thoughtful response to ODFW comments. The Hearings Officer also takes notice that ODFW did not have an opportunity to respond to Applicant's (DeLashmutt's) comments. The Hearings Officer finds that the hearings officer, in the Hearings Officer FMP Decision (who approved the 2008 FWMP), appeared to rely heavily upon ODFW's concurrence/support of the data, modeling and approach taken by Applicant in the 2008 FWMP. As at least one other hearings officer dealing with the "No Net Loss" issue stated: "It is a close call" and ultimately concluded that Applicant's 2008 FWMP met DCC 18.113.070 (D) requirements in part because of ODFW's approval of the plan. The Hearings Officer finds the proposed 2022 FWMP includes a number of very important sections that are subject to multiple interpretations and likely to lead to appeals seeking interpretive declarations. The Hearings Officer finds that the proposed 2022 FWMP does not provide objective reporting, compliance/enforcement provisions. The Hearings Officer finds that relying upon the current version of Condition 38 is not appropriate if the 2022 FWMP is approved as proposed. The Hearings Officer finds Condition 38, if the 2022 FWMP were approved, would need to be revised to reflect 2022 FWMP changes and ensure that the Applicant, public and future decision makers can reasonably be expected to understand the Applicant's mitigation obligations and the consequences for failure to meet those obligations. The Hearings Officer believes it is inappropriate for the Hearings Officer to revise the proposed 2022 FWMP to assure it contains clear and objective Applicant obligations. The Hearings Officer finds it is inappropriate to revise Condition 38 when it is clear that Applicant did not include any proposed revisions in its application for this case. 42 The Hearings Officer finds, based upon the record of this case, that Applicant has failed to satisfy the one criterion it argues is relevant: DCC 18.113.070 (D). The Hearings Officer denies Applicant's request to revise the 2008 FWMP with a proposed 2022 FWMP. IV. DECISION Applicant's proposal to modify the CMP/FMP by replacing the 2008 FWMP with a 2022 FWMP proposal is denied. Dated this 19th day of December, 2022. fria4a Gregory J. Frank Deschutes County Hearings Officer 43 vTES O BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Courthouse Expansion Scope of Work BACKGROUND AND POLICY IMPLICATIONS: Commissioners have expressed interest in further reviewing the project scope of the Courthouse expansion. Programming Options 1 and 2 described below were presented to the Board on December 7, 2022. The information below is provided as background for this continued discussion. Beginning in the fall of 2021, Deschutes County began assembling a project team to expand the Deschutes County Courthouse based on concepts that were first developed in 2004. Those concepts have been refined over the past several years in expectation of additional judges being assigned to Deschutes County. In the 2021 legislative session, two additional judges were allocated to the County and began work in early 2022. With input from the County's Facilities Project Review Committee, publicly advertised RFP processes were conducted in early 2022 to assemble a team comprised of Cumming Group, LRS Architects, and Pence Construction. In June, the team began the Programming phase with stakeholder engagement tours, multiple programming meetings, and design charrettes. Questionnaires were completed by core user groups and the team integrated that feedback into the programming process. Due diligence performed by the team included review of adjacent street design, a coordination meeting with City of Bend staff, and the development of guiding principles and priorities to be carried throughout the project, informing the design process and project outcomes. Those principles include: Security, User Experience, Functionality, Maintenance, Design, Wellness, and Additional Area. With the guiding principles in place, two programming concepts are being presented for Board consideration. The concepts share a common layout that includes basement secure parking and in -custody transport; 1st floor lobby, security checkpoint and administrative offices; and a "set" of two courtrooms with judges' chambers and support staff offices on the second floor with potential to expand to multiple floors above. Option No. 1 includes a 3rd floor shell space. Option No. 2 expands upon the priority of providing space for future growth by including a 3rd and 4th floor shell space. Each floor would consist of approximately +/- 13,000 square feet to accommodate a "set" of two future courtrooms, judges' chambers and support staff offices. Each floor could also be finished to accommodate open office space. Construction of additional shell space is a cost effective way of "future proofing" the Courthouse by allowing for lower cost expansion in the future and takes full advantage of remaining buildable space adjacent to the existing Courthouse. The cost for Option No. 1 is estimated at $40M and the cost for Option No. 2 with a 4th floor for future growth is estimated at $44.5M. If approval to proceed is received, the team expects to complete Schematic Design in the spring of 2023. A construction cost estimate will be prepared based on those documents. At that time, the team will present the schematic design fioorplans to the Board of Commissioners along with the construction cost estimate and seek approval to proceed to the Design Development phase of the project. BUDGET IMPACTS: Funding for project design is budgeted for FY 2023 in the Campus Improvements Fund 463. ATTENDANCE: Lee Randall, Facilities Director 1E S BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Oregon Department of Energy Community Renewable Energy Grant Program BACKGROUND AND POLICY IMPLICATIONS: In 2021, the Oregon Legislature created the Community Renewable Energy Grant Program to support projects outside Portland city limits. The program has a total budget of $50 million. The Oregon Department of Energy (ODOE) is now accepting applications for Round 2 of the program. In this application period, ODOE is making $12 million available to support planning and developing of community renewable energy and energy resilience projects for tribes, public bodies, and consumer -owned utilities. Applications are due by February 15, 2023. At least half of the grant funds will be awarded for projects that serve environmental justice communities, including communities of color, lower -income communities, rural communities, and others. Similarly, at least half of the grant funds will be awarded to projects that support community energy resilience. The County applied for multiple projects in Round 1 of the grant program including funding for a biomass project at Mt. Bachelor. The Mt. Bachelor project was selected to receive funding. If the Board is interested in submitting a second application, staff recommends submitting one project application for consideration: DESCHUTES COUNTY FAIR AND EXPO CENTER (New Well with Solar Power, EV Charging) This project would include the installation of a hybrid grid -tied and battery back-up solar photovoltaic system to provide continuous power to a new water well to replace a well currently used for irrigation. The existing well is providing roughly 50% of the water output it had previously provided. The proposed project would install a new well to provide 500,000 additional gallons per minute to the property, install a new submersible pump, install a water filtration system to convert to potable water, install potable water storage facility, provide power for Emergency Operations staging, and provide EV charging stations. The new site would be located on a 40 acre undeveloped parcel of land on the East side of the property, closer to public access. The County's Fair & Expo Center is routinely used during natural disasters to provide temporary emergency shelter and support for displaced community members and livestock. It also serves as a command post to support regional Emergency Response. Fair & Expo has agreements with multiple local, state and federal emergency response agencies to provide this type of support when needed. This project would allow Fair & Expo to support Emergency Operations in the event that a natural disaster disrupts power supply. It would also provide a fresh water supply for displaced residents and ensure that electric vehicle users would have access to "off -grid" charging in the event of a prolonged power outage. Grant Requests: $1,000,000 grant request for constructing a community energy resilience project Potential matching funds from the Fair and Expo Center ATTENDANCE: Lee Randall, Facilities Director Jen Patterson, Strategic Initiatives Manager \)1ES BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Request and Discussion of Worrell Wayside Park Application for a City of Bend Upland Area of Special Interest (ASI) Designation RECOMMENDED MOTION: To be determined based on the Board's discussion. BACKGROUND AND POLICY IMPLICATIONS: On December 27, 2022, a community member, Donna Owens, requested Deschutes County, the landowner of Worrell Wayside Park, to authorize an individual or organization to submit an application to the City of Bend to designate the Park as a New Upland Area of Special Interest (ASI) per City of Bend Code 2.7.700. The email request and Bend City Code 2.7.700 are attached. The section below provides the process to designate a New Upland Area of Special Interest. City of Bend Code 2.7.700(G). Standards for Designating New Upland Areas of Special Interest. Any individual or organization may apply for designating new Upland Areas of Special Interest. Designation of new areas shall be coordinated with the affected property owners. An "Upland Area of Special Interest" designation may be imposed or modified pursuant to an ASI analysis. During January of each "odd numbered" calendar year, individuals may apply to the City for new ASI designations to be added to the Bend Comprehensive Plan and Zoning Maps. The City will process applications received during this time without fee. During the same time period, the City shall review City -owned properties for potential new ASI designations. A new designation shall be processed as a map amendment to both the Bend Comprehensive Plan and Zoning Maps pursuant to the City of Bend Procedures Ordinance and this section. Other sections of this Code include, but are not limited to: • Activities on the designated property that would be subject to review, such as site modifications; • Development standards, such as removal of vegetation or enhancement of the area; • Exceptions and variances, such as the construction of public trails or paths that provide public access; and • Mitigation standards. BUDGET IMPACTS: None ATTENDANCE: Nick Lelack, County Administrator 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone 1 Bend Development Code DEVELOPMENT CODE Development Code — Title 2 Land Use Districts --> Ch, 2.7 Special Planned Districts Refinement Plans Area Plans and Master Plans — Article VI. Upland Areas of Special Interest Overlay Zone Q e a O 2.7.700 Upland Areas of Special Interest Overlay Zone. Q 4" O As early as 1975, Areas of Special Interest have been identified as important features in the landscape intended to be preserved as growth occurs. These areas represent potential private and public open space. The upland features consist of scattered rock outcrops, stands of trees, and dominant ridges and faults that are typical of the Central Oregon landscape. These areas contain high points or changes in elevation that break the line of sight so that the area retains a feeling of undeveloped open space. A. Purpose. Bend is a community that values its natural features of trees and rocks. This section will fulfill the vision of the Bend Comprehensive Plan to retain and conserve the "natural character" of Bend. Natural resources such as rock outcroppings, draws, mature trees, natural vegetation and animal habitat are assets to the community. The Upland Areas of Special Interest Overlay Zone is intended to protect valuable natural resources within the City of Bend's Urban Growth Boundary while ensuring reasonable use of the property. This section will establish clear and objective design and development standards to protect these resources and preserve and enhance this vision for Bend's future livability. B. Applicability. 1. Affected Property. The procedures and requirements of the Upland Areas of Special Interest Overlay Zone apply to any real property designated as having an ASI as mapped on the Bend Comprehensive Plan Map and the City Zoning Map. These standards shall be in addition to the standards of the underlying zone. 2. Activities Subject to Review. Unless specifically exempted from review as described in subsection (B)(3) of this section, activities subject to review and which require a permit shall include all development on properties described below: a. Partitioning and subdividing of land. https://bend.municipal.codes/BDC/2.7_ArtVI 1/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone I Bend Development Code b. New structural development. c. Exterior expansion of any building or structure, or increases in impervious surfaces or storage areas. d. Site modifications including grading, excavation or fill, installation of new utilities, construction of roads, driveways, or paths. e. Removal of trees or cutting or clearing of any native vegetation within the Upland Area of Special Interest. 3. Exemptions. Activities exempt from this section include: a. The sale of property. b. Temporary emergency action necessary for the safety and protection of property or the public. c. Commercial forest practices regulated by the Oregon Forest Practices Act. C. ASI Review Process. For all activity subject to the Upland Area of Special Interest Overlay review, the following shall apply: 1. The ASI Review shall be processed as a "Land Use Permit" as defined in BDC Chapter 4.1, Development Review and Procedures. When practicable, the ASI Review shall be processed concurrently with other land use permits. 2. The ASI Review application is subject to the provisions of this chapter. 3. The ASI Review application shall be filed on a form provided by the City and shall be accompanied by a filing fee, drawings and information specified in this chapter. D. Development Standards. The ASI Boundary is delineated by the outside edge of the boundary line shown on the Bend Comprehensive Plan Map and the City Zoning Map. No development as defined in this chapter shall occur within an Upland Area of Special Interest boundary unless expressly permitted by the provisions of this chapter. The development standards shall apply to structures, fences, impervious surfaces including streets and driveways except where provided for in this section and landscaping as described in subsection (D)(5) of this section. In addition, no stock piling of fill materials, parking or storage of equipment or personal property shall be placed within an Upland Area of Special Interest. 1. Setbacks. There shall be a 25-foot setback from the ASI boundary for all structures requiring a building permit to provide adequate fire fuel break and to reduce the visual impact to the Area of Special Interest. This additional setback area may be used in addition to the ASI area to calculate any density credit. The permanent alteration of an Upland Area of Special Interest by grading, excavation or fill, the placement of impervious surfaces, or by the removal of existing vegetation is only permitted in association with the following enumerated uses and subject to the requirements. 2. Streets and Driveways. Public or private streets and driveways may be placed within an Upland Area of Special Interest to access development activities if it is shown that no other practicable method of access exists. If allowed, the applicant shall demonstrate that: a. No other practicable access to the buildable area exists, or access from an off - site location through the use of easements is not possible; b. Roads and driveways are designed to be the minimum width necessary and the minimum intrusion into the Upland Area of Special Interest while also allowing safe passage of vehicles and/or pedestrians; https://bend.municipal.codes/BDC/2.7_ArtVI 2/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone I Bend Development Code c. The need for future extensions of shared access, access easements, or private streets to access potential new building sites have been considered at the time of this application in order to avoid subsequent encroachments into an Upland Area of Special Interest. 3. Utilities and Drainage Facilities. Public and private utilities or drainage facilities may be placed underground within an Upland Area of Special Interest when it is shown that no other practicable alternative location exists. If allowed, the applicant shall demonstrate that: a. No other practicable access exists or access from an off -site location through the use of easements is not possible; b. The corridor necessary to construct utilities shall be the minimum width practicable; c. Removal of existing trees and native vegetation shall be avoided unless absolutely necessary. Any permanent alteration of an Upland Area of Special Interest by the construction of public or private streets, driveways, utilities or drainage facilities is subject to the mitigation requirements under subsection (F) of this section. 4. Removal of Vegetation. Removal of existing vegetation from an Upland Area of Special Interest is prohibited, except as indicated below: a. A tree in danger of falling and thereby posing a hazard to life or property may be removed, following an assessment evaluation from a Qualified Professional. If no hazard will be created, the tree or snag may be required to be left in place within the Upland Area of Special Interest to provide wildlife habitat. b. Diseased or dying trees that may pose a threat to the health of surrounding vegetation as determined by a Qualified Professional. c. The removal of noxious weeds and nonnative grasses (e.g., knap weed, toad flax or cheat grass) is encouraged when practicable with minimal disturbance to the ASI. 5. Enhancement of an Upland Area of Special Interest. Planting of additional vegetation within an Upland Area of Special Interest is permitted as indicated below: a. Plant materials shall be native to Central Oregon and similar to the existing plant species in the vicinity of the ASI. b. No permanent irrigation shall be installed. 6. Development Credit. When an applicant preserves an Upland Area of Special Interest, the development potential for the preserved area may be transferred to the balance of the parcel for development or applied to the subject property as indicated below: a. For residential lands where the property owner preserves an Upland Area of Special Interest, the property owner shall receive a density credit equivalent to the area being preserved as determined through the land use permit process. b. Where the applicant preserves an Upland Area of Special Interest, the property owner may initiate one or more of the activities listed below; provided, that the compensation does not exceed the benefit of the ASI protection as determined through the land use permit process. • Substitute the preserved ASI as the equivalent required on -site landscaping; https://bend.municipal.codes/BDC/2.7_ArtVI 3/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone ( Bend Development Code • Receive up to 10 percent reduction in the required on -site parking spaces; • Reduce the front yard setback up to 50 percent of the standards required for the applicable zone; • Develop accessory dwelling units on lots abutting an area of special interest. c. For subdivision development, where the applicant preserves an Upland Area of Special Interest, the property owner may incorporate flexible lot development standards typical of a PUD when the area of special interest occupies more than 20 percent of the subject property. d. Opportunities for tax benefit in accordance with the provisions of the Deschutes County Tax Assessor. E. Exceptions and Variances. An exception or variance to the provisions of this code shall apply to property where no further land division is feasible. An exception or variance is permitted only when considered necessary to allow reasonable economic use of the subject property or to provide public benefit. 1. Exceptions. a. Properties which have existing structures or site development within an ASI on the effective date of the ordinance codified in this chapter, and which do not conform to the standards stated herein, shall be considered nonconforming. b. For existing platted lots where the location of an Upland Area of Special Interest results in a building area depth for a single -unit dwelling of 25 feet or less or a building envelope of 800 square feet or less, or a commercial building area depth of 100 feet, the front and side yard setbacks may be reduced up to 50 percent of the standard required for the applicable zone. c. For existing platted lots where the entire lot is located within an ASI, the property may be developed with permitted uses, subject to the applicable land use review, in a manner that will have the least impact to the ASI. d. The construction of public trails or paths that provide public access into the preserved Upland Areas of Special Interest. 2, Variances. A variance shall only apply to property where strict interpretation of the standards would preclude reasonable use of the land that could be expected to occur in the zone, and that the property owner would be precluded a substantial property right enjoyed by the majority of landowners in the vicinity. Criteria: No variance request shall be granted unless the applicant can establish: a. That special conditions exist which are peculiar to the subject property which make conformance to the standards of this chapter impractical. b. The variance is the minimal deviance from the standards of this chapter needed to accomplish the objective. c. The varied standard will conform to the purpose and objectives of the Bend Comprehensive Plan and this chapter. In any case, the granting of a variance shall not adversely affect the potential for public access into an Area of Special Interest, adequate provision for fire protection or the visual integrity of the Area of Special Interest. A variance to the standards of this chapter shall be processed as a "Land Use Permit" as defined in BDC Chapter 4.1, Development Review and Procedures. The Review Authority may attach conditions to any variance granted to ensure that the variance https://bend.municipal.codes/BDC/2.7_ArtVI 4/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone I Bend Development Code meets the objectives of the Bend Comprehensive Plan and this chapter. F. Areas of Special Interest Mitigation Standards. The development activities listed in subsections (B) and (D) of this section may trigger a requirement for mitigation. When a proposed development impacts an Upland Area of Special Interest by grading, excavation, or fill, the placement of impervious surfaces, or by the removal of vegetation, a mitigation plan prepared by a qualified professional shall be submitted to the Review Authority. The mitigation plan shall include the following: 1. The location of the impact, the existing conditions and area size of the resource prior to impact, the location and size of the proposed mitigation area, and a proposed mitigation plan that represents a 1:1 replacement value; 2. All proposed vegetation planted within the mitigation area shall be native to the region and similar to the vegetation removed. Species to be planted in the mitigation area shall replace those impacted by the development activity at a 2:1 ratio; 3. Additional mitigation measures may be required based on the nature of the impact such as: • Site reclamation. • Screening of structures, cuts or fills. • Increased vegetative quantities and/or sizes. G. Standards for Designating New Upland Areas of Special Interest. Any individual or organization may apply for designating new Upland Areas of Special Interest. Designation of new areas shall be coordinated with the affected property owners. An "Upland Area of Special Interest" designation may be imposed or modified pursuant to an ASI analysis. During January of each "odd numbered" calendar year, individuals may apply to the City for new ASI designations to be added to the Bend Comprehensive Plan and Zoning Maps. The City will process applications received during this time without fee. During the same time period, the City shall review City -owned properties for potential new ASI designations. A new designation shall be processed as a map amendment to both the Bend Comprehensive Plan and Zoning Maps pursuant to the City of Bend Procedures Ordinance and this section. 1. Procedure. a. The applicant shall file an application for a Bend Comprehensive Plan Map amendment and Zoning Map amendment on a form provided by the City and shall be accompanied by a filing fee, drawings and appropriate information. b. The Review Authority shall conduct an evaluation. Using the "ASI" Analysis Methodology, the outcome of the analysis must establish that the proposed sites merit resource protection as an "Area of Special Interest" in order to proceed. 2. ASI Analysis Methodology. The City shall evaluate potential Upland Areas of Special Interest using the 1999 Natural Areas Scoring System (NASS) developed by the Bend Urban Land Survey team. The NASS is a numerical ranking which represents the relative values of a natural resource site. The following nine criteria and scoring system are used to determine the totttlaistraisPmesiScamingSystem Criteria Score Explanation Existing Site Use 6 Undeveloped 4 Minor development 2 Significant development 0 Development that substantially reduces open space value htips://bend.municipal.codes/BDC/2.7_ArtVI 5/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone 1 Bend Development Code Criteria Score Explanation Habitat Value 6 Supports a broad diversity of bird and/or animal life 4 Supports moderate diversity of bird and/or animal life 2 Limited habitat value 0 Almost no habitat value Trees and Vegetation 6 Mature trees, quality riparian vegetation or other significant vegetation 4 Some trees, other lower quality vegetation 2 Little significant vegetation 0 Almost no vegetation Natural Features 6 Uncommon or outstanding natural features 4 Natural features of good quality 2 Natural features are not distinctive 0 Almost no natural features Conflict with Adjacent Land Use 6 No conflicts 4 Slight conflicts 2 Moderate conflicts 0 Severe conflicts Wildlife Linkages 6 Quality connections to other wildlife areas 4 Some connections 2 Minor connections 0 No connections Scenic Resources 6 Highly attractive scenic resources 4 Moderately attractive 2 Limited scenic value 0 Unattractive Public Access 6 Potential for high use 4 Potential for moderate use 2 Low potential for use 0 No potential for use Type of Water Present 6 Has a variety of flows 4 Year-round water source of good quality 2 Seasonal water 0 No water or low quality water source H. Delineation of New Upland Areas of Special Interest. The ASI delineation is a more precise determination of the location of the designated area. The delineation is determined by several factors including but not limited to the topographical contours, the presence of significant trees and an on -site field location conducted by the Review Authority. https://bend.municipal.codes/BDC/2.7_ArtVI 6/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone I Bend Development Code 1. Topography. The boundary of the designated area will be determined to be at the toe of the slope or slope transition for upland features as illustrated on an adopted map specific to each ASI unless otherwise determined by the Review Authority based on field observation. 2. Significant Trees. The ASI boundary may include significant trees as defined in this code measured at the outer edge of the tree canopy based on aerial photos and field observation. 3. Evaluation Methodology. A potential new site within the "Upland Feature" category would be evaluated using the following method: ASI No. 4 on the east side of 15th Street Upland features are natural areas consisting of geologic features and/or vegetation that provide visual and spatial breaks in the developed landscape. 4. Upland Features. a. Use the following three criteria: i. Scenic Resources. ii. Existing Site Use. iii. Natural Features. b. Apply the NASS scoring system for these criteria. c. The combined score must total a minimum of 10 points. Proposed new sites in the Upland feature category with a minimum score of 10 points would be subject to a second review using all nine NASS criteria. Under the second review, the site must total a minimum of 20 points to be further considered for adoption as an Upland Area of Special Interest. https://bend.municipal.codes/BDC/2.7_AdVI 7/8 1/4/23, 5:31 PM Ch. 2.7 Art. VI Upland Areas of Special Interest Overlay Zone 1 Bend Development Code Upland Areas of Special Interest City of Bond -r- \ z.,enAcildloaApbrfle'lArelsciealosl fl 'DATE Vgaornter 5, 2C01 Vetchtle. County MS [Ord. NS-2423, 2021; Ord. NS-2271, 2016; Ord. NS-2016, 2006; Ord. NS-1803, 2001] 30 If3er“:73 uevekodmen F. Code cqlrient 714Ug1 ch,Anance NS,24.56, pa5sed octobe.9, 2022, LAsclairner: The city recorder's office has the official version of the Bend Development Code. Users should contact the city recorder's office for ordinances passed subsequent to the ordinance cited above. City Website: www.bendoregongov Code. .. Rublistfing,cgmpany. https://bend.municipal.codes/B0C/2.7_ArtVI 8/8 From: To: Cc: Subject: Date: gonna Owens Patti Adair; Phil Chang; Tonv DeBone; Nick Lelack; Lee Randall bcamobelk bendoregon.gov; mkeblerCThbendoregon.gov; amendez(bendoregon.gov; mriley(abendoregon.gov; Alice Elshoff Worrell Wayside in 2023 and beyond Tuesday, December 27, 2022 5:14:21 PM [EXTERNAL EMAIL] Wishing you Seasons Greetings and Happy New Year! And to extend a thank you for revisiting the parking situation on the downtown County Campus. It should be no surprise that we are thrilled with the BoCC support of the recommendation from the parking analysis that our little Worrell Wayside County Park will not be needed for additional parking in the mid term. Over most of 2022, a community effort swelled to save Worrell Wayside from being redeveloped into parking. We know the work is just beginning; to weed, plant more native plants, work on the trails, level and repair picnic tables and benches; the list goes on. We would like to officially adopt the park and work with the BoCC and County Staff to develop a Master Plan and annual operating plan. We have many ideas and many volunteers who want to stay engaged and some who want to "get their hands dirty" by helping. There is also an opportunity during January of each "odd numbered" calendar year to apply to the City for a new Area of Special Interest designation to be added to the Bend Comprehensive Plan and Zoning Maps. Bend Development Code 2.7.700 outlines the process in more detail and its purpose is intended to protect valuable natural resources within the City of Bend's Urban Growth Boundary while ensuring reasonable use of the property. We would like to file an application with the City of Bend to create an Area of Special Interest (ASI) for Worrell Wayside Park. Any individual or organization may apply for this designation and of course we need to coordinate with Deschutes County, the landowner. It seems this would be a valuable designation and it provides an opportunity for the County to acknowledge ..."Bend is a community that values its natural features of trees and rocks..." Time is critical for the ASI process and we realize this is likely not a high priority for the County. We are committed to stepping up to volunteer to file the application with your support; additionally, to work with your staff to develop a Worrell Wayside operating plan for 2023 assuming you will welcome our offer to adopt Worrell Wayside. Thank you for considering items in this request and please advise if a different format is required and the best way to follow up. Happy New Year and Best Regards, Donna Owens 541-647-7079 owedonna(gmail.com Sent from Mail for Windows BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Request to repurpose an existing mediation full time position to support the School -Based Health Center (SBHC) RECOMMENDED MOTION: Move approval of repurposing position #1737 for assignment to the School -Based Health Center program. BACKGROUND AND POLICY IMPLICATIONS: As part of an effort to meet identified needs as outlined in the Central Oregon Regional Health Improvement Plan and based on national statistics regarding the mental health of youth and young adults, Deschutes County Health Services conducted a needs assessment which examined School Based Health Center (SBHC) data from the 2020-2021 school year and compared it to national averages. The data illuminates major staffing shortages for Redmond and Sisters for equitable access and identifies a need to expand access to mental health care. According to the Portland State University Population Research Center, Deschutes County has had a stunning growth rate of 28.9% from 2010-2021. Local data through the 2019 RHIP reports that 35.6% of 11th graders seriously considered attempting suicide over the past year. The 2020-2024 RHIP outlines the need to "expand access to primary care clinics (locations, hours such as night/weekends, school based health centers)." The RHIP further outlines the needs for equitable access to services, focusing on access to screening, early intervention services, substance abuse treatment and increased coordination with outpatient treatment providers through SBHC. Both Redmond High and Sister's SBHC currently have an allocated 0.5 FTE to their SBHC location. Data suggests that 2.3 FTE in Sisters and 6.5 FTE in Redmond are needed to support national averages. In order to close the identified unmet need we are proposing to increase support to both of these locations, making each position a 1.0 FTE through the utilization of an unfilled BHS-II 1.0 position previously allocated to the Mediation Program, which was transferred to the Circuit Court in 2022-2023 fiscal year. Repurposing this position does not increase Health Services FTE, and will help close the gap of unmet needs in SBHCs. BUDGET IMPACTS: With a start date of February 1, the position will cost $46,209 in FY23 and $121,937 in FY24. Both years will be covered by increases to capitation payments, which is expected in the 2023 PacificSource agreement. These increases to capitation are part of the requirements to PacificSource from the state to increase funding the Behavioral Health providers. ATTENDANCE: Shannon Brister, Behavioral Health Program Manager Holly Harris, Behavioral Health Deputy Director Deschutes County Health Services 2023 SBHC Needs Assessment "1 don't know who I would have gone to if 1 didn't find out about the health center. -SBHC client" School -Based Health Centers (SBHCs) are medical clinics that offer primary care services either within or on the grounds of a school. With easy access to health care in a school setting, SBHCs reduce barriers such as cost, transportation, and concerns surrounding confidentiality that often keep children and youth from seeking the health services, they need. SBHCs provide a full range of physical, mental and preventive health services to all students, regardless of their ability to pay. SBHCs have existed in Oregon since 1986, offering 78 certified SBHC sites throughout Oregon. Deschutes County Behavioral Health began providing School Based Health Services in 2011, offering seven (7) certified SBHC's in Sisters, Redmond (2), Bend (2), LaPine and Gilchrist. In 2021, Deschutes County SBHC provided a served 4,148 clients, and offering 5,420 total visits. According to the Portland State University Population Research Center, Deschutes County has had a stunning growth rate of 28.9% from 2010-2021. Local data through the 2019 Central Oregon Regional Health Assessment indicates that 35.6% of 11th graders seriously considered attempting suicide over the past year. Outlined in the 2020-2024 Regional Health Improvement Plan (RHIP) strategies outlines the need to "expand access to primary care clinics (locations, hours such as night/weekends, school based health centers).' The RHIP further outlines the needs for "Equitable Access to Services" focusing on access to screening, early intervention services, substance abuse treatment and increased coordination with outpatient treatment providers through SBHC. As part of an effort to meet, the identified needs outlined in the RHIP and based on national statistics regarding youth/young adults mental health needs we identified the need to increase support in both Redmond and Sisters SBHC's. Both Redmond High and Sister's SBHC have allocated a .5 FTE. In order to serve the unmet need identified we need to increase support to both of these locations by making each position a 1.0 FTE. Below we have taken the 2020-21 School Year Enrollment and compared that with the national averages. The data suggests that while 1 out of 4 youth report mental health challenges only 13.7% will seek treatment. It also proposes that based on our volume of Mental Health Services offered in SBHC's we are not able to meet the demand with current staffing levels. While data recommends that Bend/LaPine would need 37.1 therapists, we recognize that youth who live in Bend have better access to panel providers, services through outpatient clinics offered by Deschutes County Behavioral Health Clinics (Wall Street, Courtney, and Antler). The data illuminates major staffing shortages for Redmond and Sisters for "equitable access" and a need to "expand access "to mental health care. District Bend LaPine Redmond Sisters Total Enrollment 17,542 7,069 1,076 1 out of 4 w/MH Issues 4386 1767 269 13.7% or Average of Adolescents Seen for MH 2403 968 147 Deschutes County Health Services 2023 SBHC Needs Assessment SBHC Clients 384 239 62 % of Enrolled Served in SBHC Care 2% 3% 6% SBHC Visits 1215 1534 460 Average of Visits 3.2 6.4 7.4 FTE Requirement for Meeting National Average of 13.7 % Treatment* 37.1 14.9 2.3 In partnership with schools and medical providers as part of the integrated SBHC team the following additional information was offered to support the need: ➢ Parent Request - School counselors have lots of requests from parents/students asking for additional mental health resources. We just have such a limited number of community -based resources. This would be a blessing for our families! ➢ Resources - Substance use and mental health referrals to our partner Rimrock Trails have already proven to overload the system. There's a current waitlist and parents are desperate for support. ➢ Student Struggles - As a result of the pandemic, we are seeing lots of struggles. At the high school level, we are seeing lots of students struggling with eating disorders, anxiety, depression, panic disorders, substance use. ➢ Culture of Care - The SBHC at Lynch Elementary is a bustling pillar in the community. Community members and schools rely on their services and rely on someone being there full-time. We'd like Redmond HS's location to be the same. A part-time FTE makes it so difficult to really create a culture of care. We'd love for our community to know that we are available and ready to serve. ➢ Reliability - Part-time schedules change often and make it very difficult to be available for families. Families that may need a higher level of support may not come back a second time. ➢ Equity - It's would be great to have fully staffed SBHC like Lynch. ➢ Successful Outcome - I have chatted with counselors and parents that are utilizing Redmond HS's site and are so thankful. In a Kids Center meeting, it was shared that one of our kiddos was accessing support at Redmond HS's SBHC and it felt so good to have that student be able to walk to their appointment. "Without the health center — knowing how to handle myself in class and deal with my health issues would be immensely harder. The counseling services offered also offer a huge breath of relief. They've helped me figure things out and make things manageable as well as set up appointments for treatment and care outside of class time. Both the physical and mental health services we have are a huge benefit/asset to our school! -SBHC client" �0ES BOARD OF COMMISSIONERS AGENDA REQUEST & STAFF REPORT MEETING DATE: January 11, 2023 SUBJECT: Authorization to apply for a grant in the amount of $3.25 million from FEMA's Building Resiliency in Communities program and also for a $500,000 grant from the Oregon State Fire Marshall RECOMMENDED MOTION: Move to authorize staff to apply for a grant in the amount of $3.25 million from FEMA Building Resiliency in Communities and to also apply for a grant in the amount of $500,000 from the Oregon State Fire Marshall based on SB 762 legislation. BACKGROUND AND POLICY IMPLICATIONS: If awarded, the $3.25 million grant from FEMA's BRIC program would be used for a water storage and heat -activated sprinkler system on the High Desert Museum campus to protect irreplaceable museum articles and over 150 animals, some of which are threatened and endangered, from wildland fire. This grant would require a match of either 25% ($700,000) or 10% ($325,000); in either case, both in -kind and cash contributions will supply the necessary match, with no fiscal impact on the County. A 5% administrative allowance ($162,500) would be allowed for administering the grant. The $500,000 grant from the State's Fire Marshall Office has no match requirement and would include a 10% grant administration allowance. BUDGET IMPACTS: $162,500 administrative fees for the BRIC grant and $50,000 for the SB 762 grant. ATTENDANCE: Kevin Moriarty, County Forester Joe Stutter, Senior Advisor and Contact Administrator, Oregon Living With Fire Building Resilient Infrastructure Communities (BRIC) BRIC Notice of Funding Opportunity (NOFO) Intent: To support the adoption and enforcement of building codes, standards, and policies that will protect the health, safety, and general welfare of the public with long lasting impacts on community risk reduction. This includes critical services, facilities, and future disaster costs. FEMA will provide financial assistance to eligible BRIC applicants for the following activities: 1. Capability- and Capacity -Building (C&CB) activities — Enhance the knowledge, skills, expertise, etc., of the current workforce to expand or improve the administration of mitigation assistance. This includes activities in the following sub -categories: building codes activities, partnerships, project scoping, mitigation planning and planning -related activities, and other activities. 2. Mitigation Projects — cost-effective projects designed to increase resilience and public safety; reduce injuries and loss of life; and reduce damage and destruction to property, critical services, facilities, and infrastructure from natural hazards and the effects of climate change. 3. Management Costs — financial assistance to reimburse the recipient and subrecipient for eligible and reasonable indirect costs, direct administrative costs, and other administrative expenses associated with a specific mitigation measure or project in an amount up to 15 percent of the total amount of the grant award, of which not more than 10 percent of the total award amount may be used by the recipient and 5 percent by the subrecipient for such costs generally. 4. Applicant Eligibility — State, Local, Tribal or Federal Cooperators must apply on behalf of individuals, community members, or businesses. In the spirit of collaboration, they may not apply for BRIC funding independently as the primary applicant. Federal Award Information Application Closure January 13, 2023 to OEM Pre -Award Selection Summer 2023 Performance Period 36 Months from Receipt of Federal Award Available Funding for the NOFO: $1,900,000,000 State/Territory Allocation Total: Tribal Set -Aside Total National Competition Total $ 56,000,000 $ 25,000,000 $ 1,919,000,000 Cost Share 75 percent federal / 25 percent non-federal. This means federal funding is available for up to 75 percent of eligible costs. The remaining 25 percent of eligible costs must be derived from non-federal sources. The non-federal cost share may consist of cash, donated or third -party in -kind services, materials, or any combination thereof. Cash and third -party in -kind matches must consist of eligible costs (i.e., same eligibility as the federal share). If applying under an economically depressed rural community, cost share becomes 90 percent federal/10 percent non-federal. Hazard Mitigation Benefits: Natural hazards pose a serious risk to states, localities, tribes, and territories throughout the United States. These hazards include flooding, drought, hurricanes, 44,t, Oregon Living With Fire I www.oregonlivingwithfire.org coordinator@oregonlivingwithfire.org OREQON 1.I\1\<:,. A-ilti. Building Resilient Infrastructure Communities (BRIC) landslides, wildfires and more. Many natural hazards are expected to become more frequent and more severe. Therefore, reducing the impacts these hazards have on lives, properties and the economy is a top priority for many communities. Although the general population understands "that" this is a reality, they do not understand "how" to effectively respond or prepare for these events. FEMA has previously provided financial assistance to BRIC applicants for the following activities: 1. Colorado Springs Wildfire Mitigation — The community has taken actionable steps to mitigate against future damage by adopting a stronger fire -resistive building code, mapping wildfire risk, and participating in strategic community engagement. The City of Colorado Springs Fire Department collaborated with the Colorado Springs Housing and Building Association to identify ways to mitigate the impacts of wildfires on residential buildings. This information led to Ordinance No. 18-50, which amended the International Fire Code to address wildland/urban interface mitigation requirements for high -risk areas. Benefits include but are not limited to: a. Reduced physical damage to structures/contents as well as infrastructure. b. Life -safety benefits for areas with potential rapid wildfire risk. c. Improved air quality and community health due to a reduction of wildfire smoke/pollutants. d. Retained timber values and reduced fire suppression costs. e. As more structures are built with fire-resistant materials in the area, it decreases the cost for materials and installation. Total Project Cost: $1.33 Million Partnerships: City of Colorado Springs Fire Department, Colorado Springs Housing and Building Association, and FEMA 2. Camptonville Biomass Plant — The Camptonville Community Partnership is developing a 5.5- megawatt biomass plant in Camptonville, CA. This plant will support healthy forests by generating electricity from materials removed from forests that are overstocked or suffering from tree die -off. The project provides incentives for fuel reduction activities and otherwise utilizing forest waste. It includes a power -purchase agreement with the local utility (PG&E) to purchase electricity created by the biomass facility. This plant will provide a market focused on sustainable forest management projects, reducing forest fuels, and minimizing the threat of wildfire. This plant will provide a market focused on sustainable forest management projects, reducing forest fuels, and minimizing the threat of wildfire. Benefits include but are not limited to: a. Reduced physical damage to structures/contents as well as infrastructure in at risk areas. b. Life -safety benefits for areas with potential rapid wildfire risk. c. Improved air quality and community health due to a reduction of wildfire smoke/pollutants d. An alternative power generation source which also provides jobs in the community e. Potentially results for long-term wildfire fuels reduction without additional grants. f. Reduced fire suppression and emergency response costs. Total Project Cost: $5.1 Million Partnerships: Camptonville Community Partnership, Yuba Water Agency, and PG&E Community Benefits The above examples of BRIC funded projects can provide both short and long-tenn environmental, economic, and social advantages which improve a community's quality of life or make it more * + OREQO1' Oregon Living With Fire www.oregonlivingwithfire.org 1 coordinator@oregonlivingwithfire.org Building Resilient Infrastructure Communities (BRIC) attractive to new residents/businesses. BRIC prioritizes projects that mitigate risk to public infrastructure, community lifelines, incorporate nature -based solutions, and support modern building codes. The community benefits from these efforts may include: 1. Wildfire Smoke Mitigation (Improved Air Quality) — Hazardous fuels reduction work ensures that wildfires have less vegetation (fuels) to feed on. Less fuel means less opportunity for intense wildfire and smoke. Until landscape resiliency is achieved and maintained, Smoke Mitigation measures are likely an opportunity for the BRIC grant process. For example, Sonoma County in California was recently awarded $36.98 Million to develop a system within the Wildland Urban Interface (WUI). The system establishes zones containing an inner and outer core. The inner core is hardened by encouraging property owners to create and maintain defensible space around their homes to reduce the potential for ignition from embers, direct flame, or radiant heat. The outer core absorbs the impacts from wildfires before they get to this hardened inner core. This is accomplished by reducing vegetation in large -parcel infill sites and or wildland areas that abut communities. Infill sites are created to provide buffers to decrease fire spread and intensity, provide anchor points, and increase environmental benefits including improved forest health/wildlife habitats, improved water quality, less extreme wildfire, and effective smoke mitigation. 2. Economic Health — The utilization and removal of forest waste/fuel loading supports community economic health. As with the Colorado Springs Mitigation Project, these efforts have the capacity/capability to reduce damage to community lifelines and infrastructure due to less extreme wildfire or wildfire spread. Moreover, local job creation, property values, renewable energy, green building materials, and fire adaptive landscapes may increase. 3. Community Partnerships — BRIC is a firm believer in creating meaningful partnerships and community collaboration. Applicants are limited only by their imagination so long as they can successfully prove their proposal(s) have the capability and capacity to support the adoption and enforcement of building codes, standards, and policies that will protect the health, safety, and general welfare of the public with long lasting impacts on community risk reduction. The possibilities are only limited by our wiliness to work with one another toward a common goal. Thus, the list of potential shareholders in this effort are endless. Some examples may include: o City, State, Local, or Municipal Government(s) o Counties and County Leadership o Local Tribes and Tribal Leadership o Health Departments o Forestry Professionals, Representatives, and Associations o Community Organizations o Wildfire & Emergency Responders o Wildland Urban Interface (WUI) and related Councils o FEMA BRIC funded projects offer financial incentive to offset cost while providing a mechanism to enhance community lifelines and education to withstand damages resulting from disaster events. Think carefully, which project do you think would most benefit your community? Oregon Living With Fire I www.oregonlivingwithfire.org coordinator@oregonlivingwithfire.org SB 762 Grant Opportunity The OSFM is offering the Community Wildfire Risk Reduction Grant (Award) to assist local governments and organizations in accomplishing greater wildfire preparedness and increasing community resiliency to wildfire. A. Eligibility: 1. Counties, municipalities, non -governmental organizations, Oregon fire agencies, special districts, and Rangeland Fire Protection Associations (RFPAs). 2. Counties are allocated $5 million in competitive funds with a maximum award of $500,000 for any one county. a. If a county is acting as the administrator for another county or other organization for the purposes of this grant, only one award is eligible. 3. Municipalities and special districts are allocated $5 million in competitive funds with a maximum award of $250,000 for any one municipality. a. If a municipality or county or other organization is acting as the administrator for another municipality or other organization for the purposes of this grant, only one award is eligible. 4. Fire agencies and RFPAs are allocated $5 million in competitive funds with a maximum of $500,000 for any one fire agency. 5. Nonprofit, non -governmental organizations ("NGOs") are allocated $3 million in competitive funds with a maximum of $250,000 for any one agency. Nonprofit or NGOs are voluntary groups of individuals or organizations, usually not affiliated with any government, formed to provide services, or advocate a public policy. 6. The OSFM reserves the right to reallocate funds as agency needs dictate. 7. Applicants are encouraged to coordinate applications in the same jurisdiction, but each organization must apply separately for different aspects for the project. 8. All grants are for three (3) years or less, with grant funds spent by March 31, 2026. B. Allowable Costs: 1. Personnel costs for staff to manage the grant program activities, such as a program coordinator, program manager, or similar. 2. Projects should prioritize socially and economically vulnerable communities, persons with limited proficiency in English and persons of lower income as defined in ORS 456.055, critical or emergency infrastructure or schools, or hospitals and facilities that serve seniors. 3. Defensible space programs, including but not limited to: • A locally managed defensible space program for private landowners. • Direct contracts or work to create fire-resistant landscapes around residential, commercial, municipal structures, and/or other critical infrastructure. • Create or support existing community programs, such as Firewise USA sites. 4. Community common area projects, including but not limited to: Municipal or county properties or parks intended to be used for emergency evacuation centers, recovery centers, defensible space demonstration spaces, greenways, houseless camps or communities, or fire breaks around critical infrastructure. • Improvement of access, ingress, and egress route projects, including but not limited to planning of egress routes, including primary and secondary routes. • Brushing and clearing roads for defensible space/fire break. • Reflective address and road signage. 5. Educational projects, including but not limited to: a. Fire prevention and preparedness messaging campaigns and billboards. b. Community clean-up days for outdoor debris. c. Work with a community -based organization or other means to address fire safety education among people experiencing houselessness or people whose first language is other than English. 6. Vegetative fuel reduction and mitigation projects, including but not limited to: a. Prescribed grazing (e.g., goats) for fuel mitigation work around communities. b. Vegetation mitigation crews. c. Equipment for fuel reduction efforts such as chippers. This line item cannot exceed $75,000. d. Defensible space treatment around critical infrastructure. 7. Contracts for tree service and debris clearing companies to service areas of the jurisdiction. 8. Planning costs such as needed to update Community Wildfire Protection Plans. 9. Administrative costs, including management, payroll services, and supplies, up to 10% of the grant award. Please note, administrative costs are separate from personnel costs, except for management personnel costs. C. Unallowable Costs: 1. Fire suppression equipment, such as fire trucks or engines, or their maintenance. 2. Fire response equipment such as radios, water tanks, hoses, etc. 3. Direct firefighting equipment, such as personal protective equipment. 4. Prescribed burns. 5. Building infrastructure projects such as building or infrastructure hardening, water tank installations, utility line burying, etc. 6. Reimbursement of costs for projects completed before the grant application. 7. Road paving projects for egress. 8. Home hardening supplies and labor. 9. By the time this application is due, the OSFM will have made some strategic investments in consultation with local communities and fire agencies for fire risk reduction. These investments are considered pilot projects. If an applicant received the OSFM funds for a fire risk reduction pilot project, that project is not eligible for this grant. 10. A federal grant match for a project that matches the above criteria. 11. Contracting or funding a state agency. Applications must be received no later than 5 p.m. January 31, 2023, via the application form link. -0 - C C ro co -0 r6 c L •- -0 0 U •— O O 4� � ,_c c� 4-, �u Q O c O c6 c ct, 1.2 -0 O o U � c 4o O U V 0 .— -c c be rts Q. Tony DeBone v, VageMi W W u = W u N LL W O a �II CHARLES FADELEY STEVE GUNNELS SHANE NELSON STEVE DENNISON u L O 0 i zi O Q a) •W u = O na co to V N a3 O W L.3- = C .s 4J aV cu u°O � �O V bO co bA > i O D v < CZ S +-) 0- >, CU � 4) > ° a, WV) M _ O . ii V C •E CU • • 0 • 0 -@@@.•41 n?' , - ;'• r it c4.0...e.,..Lei @ ,AF :1 I I I t BOARD OF COMMISSIONERS BOARD OF COUNTY COMMISSIONERS MEETING 9:00 AM, WEDNESDAY, JANUARY 11, 2023 Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall St - Bend (541) 388-6570 I www.deschutes.org AGENDA MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and can be accessed and attended in person or remotely, with the exception of any executive session. Members of the public may view the meeting in real time via the public meeting portal at www.deschutes.org/meetings. To view the meeting via Zoom, see below. Citizen Input: The public may comment on any meeting topic that is not on the current agenda. To provide citizen input, submit an email to citizeninput@deschutes.org or leave a voice message at 541-385-1734. Citizen input received by noon on Tuesday will be included in the meeting record for topics that are not on the Wednesday agenda. If in -person comment from the public is allowed at the meeting, public comment will also be allowed via computer, phone or other virtual means. Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer. • To join the meeting from a computer, copy and paste this link: bit.ly/3h3ogdD. • To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the passcode 013510. • If joining by a browser, use the raise hand icon to indicate you would like to provide public comment, if and when allowed. If using a phone, press *6 to indicate you would like to speak and *9 to unmute yourself when you are called on. 4.1 Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, call (541) 388-6572 or email brenda.fritsvold@deschutes.org. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT: Citizen Input may be provided as comment on any topic that is not on the agenda. Note: In addition to the option of providing in -person comments at the meeting, citizen input comments may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be timely, citizen input must be received by noon on Tuesday in order to be included in the meeting record. CONSENT AGENDA 1. Consideration of Document No. 2022-946, an amendment to the contract with Youth Villages for crisis and transition services 2. Adoption of Board Order No. 2023-006 directing the La Pine Rural Fire Protection District to comply with the Deschutes County Ambulance Service Plan and Chapter 8.30 of the Deschutes County Code 3. Approval of BOCC meeting minutes for December 21 2022 ACTION ITEMS 4. 9:05 AM Consideration of approval to purchase two 2024 International Truck Tractors 5. 9:10 AM Sisters Area Chamber of Commerce Presentation 6. 9:25 AM City of Sisters ARPA Reserve Allocation Request 7. 9:40 AM Public Hearing: Oregon Department of Transportation Noise Variance 8. 9:55 AM Planning Commission Representation / Geographic Areas 9. 10:20 AM Public Hearing: Planning Division Long Range Work Plan for FY 2022-2023 10. 11:20 AM Board Order 2023-004—Decision whether to hear two appeals of a Hearings Officer's decision for a Thornburgh Resort modification request 11. 11:40 AM Authorization to apply for a grant in the amount of $3.25 million from FEMA's Building Resiliency in Communities program and also for a $500,000 grant from the Oregon State Fire Marshall LUNCH RECESS January 11, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3 Continued ACTION ITEMS 12. 1:00 PM Consideration of Administrative Policy GA-23, Removal of Unsafe Encampments Located on County -owned Property 13. 1:30 PM Courthouse Expansion Scope of Work 14. 1:45 PM Oregon Department of Energy Community Renewable Energy Grant Program 15. 2:05 PM Request and Discussion of Worrell Wayside Park Application for a City of Bend Upland Area of Special Interest (ASI) Designation 16. 2:20 PM Document No. 2022-939, amending the agreement with PacificSource for healthcare coordination services 17. 2:30 PM Request to repurpose an existing mediation full time position to support the School -Based Health Center (SBHC) OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN January 11, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3