2023-79-Minutes for Meeting February 01,2023 Recorded 3/3/2023Recorded in Deschutes County CJ2023-79
Steve Dennison, County Clerk
Commissioners' Journal
BOARD OF Q'
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
03/03/2023 1:33:23 PM
11131111111111111111111111111
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:00 AM
WEDNESDAY, February 1, 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 9:02 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
• Dorlee Kingen described a proposal to promote community living on land zoned MUA-
10 by permitting individual homes to be built at a density of one structure per acre, but
allowing the homes to be sited in close proximity to each other rather than be
dispersed. She explained this would promote security, friendship and neighborliness
and said she is seeking authorization from the State legislature for a pilot project.
Commissioners DeBone and Adair spoke to efforts to engage one or more State legislators on
this idea. Commissioner Chang noted that MUA-10 is a rural zone and advised consideration of
the potential results of allowing this type of use all over the county, which could affect
thousands of acres. He raised the question about possible impacts to other rural property
owners.
BOCC MEETING
FEBRUARY 1, 2023 PAGE 1 OF 11
Chair DeBone acknowledged the receipt of five citizen input emails regarding the Camping
Feasibility Study; one email supporting the availability of the COVID bivalent booster for
children aged six months to five years; and one email asking that the Bear Creek site be
removed from consideration for locating a new landfill.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
ADAIR: Move Board approval of Consent Agenda
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
1. Memorandum of Agreement with the Federal Highway Administration for the Chip
Seal of Cascade Lakes Highway - Mt Bachelor to Elk Lake
2. Memorandum of Understanding with Saving Grace: Justice for Families Program
3. Consideration of Board Signature on letters of appointment, reappointment and
thanks for various Special Road Districts
4. Approval of the BOCC meeting minutes for January 11, 2023
ACTION ITEMS:
5. Public Hearing: Board Review of Two Appeals of a Modification Request to
the Thornburgh Destination Resort's Fish & Wildlife Management Plan
Caroline House, Senior Planner, explained the procedure for the hearing.
The public hearing was opened at 9:17 am.
House next presented a staff report sharing the background of the proposed
project and the request from the applicant to replace its 2008 Fish & Wildlife
Management Plan (FWMP) with a new plan developed in 2022. That request was
denied by the Hearings Officer, and two appeals were subsequently filed —one
by the applicant, and one by Annunziata Gould. House explained the four
options before the Board following the conclusion of the public hearing, as
follows:
1. Continue the hearing to a date and time certain;
2. Close the oral portion of the hearing and leave the written record open to
a date and time certain;
BOCC MEETING
FEBRUARY 1, 2023 PAGE 2 OF 11
3. Close the hearing and commence deliberations; or
4. Close the hearing and schedule deliberations for a date and time to be
determined.
Commissioner Chang recalled he had asked whether other destination resorts had
been required to submit their FWMPs to the Oregon Department of Fish & Wildlife
(ODFW). House replied that all four destination resorts said ODFW reviewed the no
net loss standard as it pertains to fish and wildlife impacts, and the submitted
management plans were approved.
House concluded that the County has received more than 200 comments on this
matter.
Commissioner Adair noted that the "Three Rivers Irrigation District" referred to in a
footnote of the Hearings Officer's report should actually read the "Three Sisters
Irrigation District."
J. Kenneth Katzaroff, representing the applicants Central Land & Cattle Company and
Kameron DeLashmutt Pinnacle Utilities, introduced James B. Newton from Cascade
Geoengineering who supplied information on how the resort's reduced ground
water withdrawals will impact fish habitat. Newton said the applicant sought a
modification to the FWMP because more information is available now than in 2008,
and that new information allows for better mitigation measures. Newton described
the Upper Deschutes basin and the Deschutes formation aquifer including its size,
annual recharge area, total use of groundwater and surface water, and proposed
use by the Thornburgh development. He further explained groundwater flows and
discharge activity back to the Deschutes River, summarized the differences between
the 2008 and 2022 FWMPs, said Thornburgh is proposing a reduction in water use
from 2,129 to 1,460 AF, reviewed the technical analyses that have been conducted
by various consultants and agencies, and concluded that the proposed mitigation
measures will meet the required "no net loss" standard.
Kellie Vashe from Maxstep Aquatics elaborated on the expected thermal impacts of
the proposed mitigation plan on the Middle Deschutes River and Whychus Creek. He
provided an overview of the temperature modeling that was conducted over a six-
month period from April to October and said results indicate that very small changes
in river flow result in very small changes in river temperature.
Joseph Eilers, a professional hydrologist, spoke to the projected positive effects of
harvesting juniper on the resort property as well as on adjacent lands owned by the
Bureau of Land Management.
Katzaroff distribute updated copies of the FWMP, noting that section 2 includes the
mitigation measures and more detailed information on compliance and reporting.
The applicant requests changes to condition #38 to remove the language stating
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FEBRUARY 1, 2023 PAGE 3 OF 11
that 'The mitigation measures include removal of existing wells on the subject
propert, (sic] and coordination with ODFW to model stream temperatures in
Whychus Creek" along with a proposed new condition #40.
Commissioner Chang commented on the plans to thin and clear juniper and how
this will or will not affect groundwater levels. He questioned how the applicant will
ensure that the mitigation measures are delivered via clear, enforceable objectives.
Newton responded that the mitigation measures must be reviewed and approved
by the State before Thornburgh can pump any groundwater. The property owner
will provide annual reports to the Oregon Water Resources Department (OWRD).
• Austin Smith, Jr., manager for the Confederated Tribes of the Warm Springs,
sought time to confer with the applicant and OFDW and asked for 30 days to
allow such consultation and a review of the submitted information. Smith
referred to plans and Memorandums of Understanding with ODFW for hunting
and fishing rights and expressed concern regarding potential habitat impacts for
cultural resources.
• Ellen Grover, legal counsel for the Confederated Tribes of the Warm Springs,
spoke to the technical expertise needed to evaluate the modeling and said the
Tribe is experienced in developing fish passage and other resource conservation
plans to support and improve habitat and reintroduce key species. She said the
Tribe wants to understand the projected impacts to the Whychus River and
Crooked River and seeks also to make sure that the applicant has fully met its
burden to address potential impacts through mitigation. She asked that the
record be kept open following the public hearing for 30 or 60 days.
• Danette Faucera, water policy coordinator for ODFW, said ODFW has not yet
received sufficient information to determine that the modified plan and its
modeling results are valid, and therefore cannot determine that the no net loss
standard has been met. Faucera referenced the letter submitted by ODFW which
detailed still -unresolved concerns, including the reliability of water rights.
• Jerry George, ODFW district fish biologist for the Upper Deschutes watershed,
said groundwater pumping is expected to have impacts in the Crooked River, in
the Deschutes River downstream of Lower Bridge, and in Whychus Creek. He
said the species supported by these streams including trout and steelhead need
clean, cold water especially during the summer's elevated temperatures. He
noted increasing demands on groundwater from residential and agricultural
uses and said a serious decline in groundwater levels has occurred since 2008
due to new development.
Commissioner Chang emphasized that the County's standard is no net loss of
habitat quality or quantity, which means that any water offered as mitigation
must be currently being extracted from the river or the ground.
• Jennifer Bragar, representing appellant Annunziata Gould, argued that because
the Conceptual Master Plan (CMP) became voided in 2015, the applicant has no
BOCC MEETING
FEBRUARY 1, 2023 PAGE 4 OF 11
right to water and no fire suppression. She stressed that the County should not
issue building permits to a development that has no access to water. She added
that the applicant has not filed a complete application, has not shown that its
proposed new sources of water are available, and has not shown that the
project's negative impacts will be completely mitigated.
• Karl Anuta, also representing Gould, agreed that the resort does not have a
functional water right, although it is proposing an amendment to use different
water rights. He said the record does not support that it will meet the no net loss
requirement; rather, the analyses clearly show impacts to the Crooked River
basin and watershed. He encouraged the Board to uphold the Hearings Officer's
denial of the request.
• Bragar concluded that more time is needed to evaluate the proposed condition
change and proposed new condition of approval, especially as these changes
were drafted by the applicant. She asked that the record be kept open for 60
days.
• Annunziata Gould emphasized the need to protect fish and water, and said the
County Code requires the "no net loss" standard be met.
• Linda Swearingen referred to her past work for various destination resorts and
said Thornburgh is being required to meet a greater standard than any other.
She noted the resort market has changed dramatically over the years and
believed that ODFW lacked evidence to support its claims due to lack of staff and
resources.
• Joe Craig expressed concern about the pressure on the region's water supply
and asked that the County deny Thornburgh's appeal. He objected that the
resort outbid the City of Bend for water rights and said because conditions have
changed since 2008, the resort should submit a new application based on
current conditions, including the number of wells which are running dry.
• Jane Lesson urged the Board to deny the request, said the applicant must
solidify water rights before using them, and was concerned that the health and
welfare of the Deschutes River and all the life it supports be protected. She said
the County is on the precipice of a water crisis and believed it a waste of public
resources to spend time on this.
• Mary Fleischmahn opposed the approval of this appeal owing to concerns about
continuing loss of groundwater, climate change, and impacts on natural
resources. She encouraged developing a master land use plan to manage growth
and accommodate affordable housing, open areas and wildlife corridors.
• Bill Littlefield testified that the amount of water that recharges has dwindled
over time. He said for the last three years, he has paid for irrigation rights
without receiving any water, and noted that many property owners are having to
deepen their wells. He spoke to the need to protect fish and wildlife and
encouraged the Board to be mindful of current and longtime residents.
• Douglas Stout spoke on behalf of the Bend chapter of the Oregon Hunters
Association, himself and his family. He agreed that wells are going dry and
reported that subterranean water is down 38 feet from 1980 according to the
BOCC MEETING
FEBRUARY 1, 2023 PAGE 5 OF 11
USGS. He said it would be wrong to grant this proposal under those conditions
and emphasized the need to protect wildlife and their fragile habitat.
• Carol Macbeth, representing Central Oregon LandWatch, disputed the proof put
forward by the applicant in terms of water (G17036). She said the proposed
changes are substantial and require the submittal of a new application.
• Bob Buddenbohn shared his status as a landowner farmer and expressed his
support for an update of the wildlife inventory to address mule deer winter
habitat. He reported his previous objection to the sale of 400 acres from the
Oregon Department of State Lands to the resort and said while he has 100-year
water rights, the irrigation district is restricting those because sufficient water is
not available. He said in this deteriorating situation, the County should not
approve new service demands —instead, it should prioritize granting more rights
to existing irrigation districts for those who have longstanding financial interests.
• Lauren Cramer said she owns a small farm in Tumalo, and the lack of adequate
water has forced her to cut back on 50% of her water rights. She requested that
the County require the applicant to conduct a study to ensure the protection of
eagles and their habitat. She urged the protection of current residents and
wildlife, said that the County should not allow the transfer of water rights which
have not been used, and asked that the Board deny the appeal and choose what
is right for the community as a whole.
• Dirk Van Houweling agreed with and supported the appeal submitted by
Annunziata Gould and said a new Conceptual Master Plan is required due to the
substantial changes proposed. He encouraged the Board to consider the health
and welfare of the County's ecosystem today and ten years from now, especially
as the region is experiencing a water crisis. He objected that the resort wants to
take water from farmers.
• James Garner shared his high regard for the Thornburghs and their history and
love for this area. He said destination resorts are a desirable use and said growth
will continue to happen and should be done in a thoughtful way that limits
sprawl.
• William Larson agreed that removing junipers will not increase the amount of
water available for use. He questioned if the information put forth by the
applicant can be trusted and asked if building this resort will improve the current
water situation. He found the projected net increase in water availability
laughable and said the development would absolutely have a large impact on
neighboring properties, yet the applicant will not be on the hook to pay for
private wells that go dry and must be extended or replaced.
• Pam Monheimer said another water use is not ecologically sustainable and this
development would also stress mule deer along with other ecosystems. She
noted that the Wickiup Reservoir is nearly empty at the end of the irrigation
season and said the County does not need another golf course or resort but
rather needs farms as well as water for consumption and household use.
• Abby Kellner -Rode asked that the appeal be denied and this development
stopped. She commented on worsening drought conditions, said extravagant
BOCC MEETING
FEBRUARY 1, 2023 PAGE 6 OF 11
water usage is dooming, and spoke to the need for affordable housing and
farms, not this kind of development.
• Susan Burdick said because her well went dry in 2021 and could not be
deepened, she was forced to borrow money to dig another. She said this
development would negatively affect her water table along with others.
• Jacqueline Berger ask that the Board deny this request and instead require the
submittal of a new application since the applicant cannot prove a ten-year water
supply as necessitated by law. She supported protecting farming and ranching
opportunities as well as access to public lands, wildlife and open spaces, and
said the existing resorts are short-staffed with amenities not always available.
• Susan Hart asked that the appeal be denied and said the data presented by the
applicant is outdated. She referred to projections that show moderate to
extreme drought in Deschutes County, said 91.2% of people in the county are
affected by drought, and added that juniper trees serve as habitat for wildlife.
• Steve Greening said as a person who hunts, skis and fishes, he was concerned
that this project would take an incredible amount of water from the ground and
affect the Crooked River in addition to neighboring wells.
• Cate Haystad-Casad asked the Board to reject this this proposal, saying that the
applicant has failed to show that the no net loss standard will be met. She
supported coming together on behalf of all area irrigation districts and was
concerned about a lawsuit threatening water rights.
Commissioner DeBone acknowledged the receipt of citizen input emails on this
matter from Mary Fleischmahn, Denise LaBuda and Ruby Swanson.
J. Kenneth Katzaroff said no new water is proposed to be used; rather, the resort has
acquired current water rights. He said all of the arguments put forth by appellant
Gould have been rejected by the courts, and both LUBA and the Court of Appeals
have said the water right described under G17036 is available to the property
owner. He said the applicant has provided a great deal of information to ODFW and
further said that the mitigation measures in the 2022 modified FWMP will benefit
the Crooked River and Whychus Creek in contrast to the 2008 plan. He emphasized
that all of the water rights are currently owned and being used.
Jim Newton concurred that the plan does not involve new water. He explained that
changing an existing water right requires cancellation in lieu of a new use, and no
new use can be allowed without alleviating a previous or current use.
Commissioner Adair asked staff to confirm that the Pronghorn resort changed its
water source and did not have to address fish habitat management.
Commissioner Chang asked if all of the resorts were required to submit Fish and
Wildlife Management Plans, and if so, did those plans contain a fish habitat
component. He was not clear on how wet the water being offered up as mitigation
water is and asked for clarification on this. Specifically, he wanted to know if the
BOCC MEETING
FEBRUARY 1, 2023 PAGE 7 OF 11
water being offered as mitigation is being used now on a regular basis, and if so,
how much in terms of quantity and frequency of use.
Discussion ensued regarding the possible extension of the comment period and the
upcoming deadline for the County to issue a final decision on this matter. The Board
was in consensus to keep the record open for two weeks with a possible additional
extension. Parties can file a request for continuance of the initial two -week period
no later than Monday, February 13th. The applicant will notify the County no later
than Tuesday, February 14th whether any extension of the 150-day period will be
requested. On Wednesday, February 15th, the Board will decide whether to grant an
extension of the open record period.
The public hearing was closed at 12:36 p.m. and a break was announced.
The meeting was reconvened at 12:44 p.m.
6. Adult Parole & Probation Expansion Project, Skanska USA Building, Inc.
Change Order No. 4—DCSO Wellness Area
Lee Randall, Facilities Director, and Sergeant Blair Barkhurst and Captain Paul
Garrison from the Sheriff's Office presented the proposal to have Skanska
convert an existing dormitory in the DCSO's work center to a staff wellness area
(a fitness room and showers, among other facilities). The change order would
also allow for upgrades to the low voltage data and security camera cabling and
the replacement of HVAC equipment which has reached the end of its
serviceable life. The $717,762 cost of these changes is budgeted in Campus
Improvements Fund 463 for FY 2023, funded by a transfer from Sheriffs Office
Fund 255.
ADAIR: Move Board approval of Chair signature of Document No. 2023-130,
Change Order No. 4 to the Adult Parole & Probation Expansion Project
contract with Skanska USA Building, Inc. for the Work Center Wellness
Area Remodel, low voltage cabling upgrades, and HVAC equipment
replacement
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
7. 2022 Annual Report for the Prescribed Fire, Smoke and Public Health
Community Response Plan
BOCC MEETING
FEBRUARY 1, 2023 PAGE 8 OF 11
County Forester Kevin Moriarty summarized key items in the report, which
describes actions taken from December 7, 2021 through December 31, 2022
regarding the implementation of the Bend Smoke Sensitive Receptor Area
Community Response Plan.
Commissioner Chang offered to share this information with the County's
Congressional representatives when he travels to Washington, D.C. next week. He
asked if staff has any results, anecdotal or otherwise, on the impacts of these public
outreach efforts. Sarah Worthington, Climate & Health Coordinator, replied that she
has been working to compile statistics and accumulate baseline data regarding how
smoke affects people with asthma or other respiratory conditions.
8. Approval of the 2022 Title III Certification Form Related to Secure Rural
Schools Funds
Kevin Moriarty, County Forester, explained that this federal funding is used in
part to fund Search and Rescue efforts. It also helps pay for the Forester and Fire
Adapted Communities Coordinator positions.
Commissioner Chang noted the total amount of $120,000 received in Title III
funds for 2022 and asked about the stability of this revenue source. Moriarty
confirmed that staff expects this funding to continue to decrease as has been
happening in recent years.
ADAIR: Move Chair signature of Document No. 2023-136, 2022 Title III
Certification Form
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
9. Authorization to apply for a grant from the Patient -Centered Outcomes
Research Institute to address Health Systems Factors and Social
Determinants of Maternal Health
Anne Kilty, Manager of Clinical & Family Services, explained that Deschutes
County would be a sub -recipient of this grant and receive approximately $2.5
million of the total $20 million award over the next five or six years. The other
partner agencies will be Oregon Community Health Information Network's
research division (the primary applicant responsible for overall project
management and administration), and Oregon Health and Science
BOCC MEETING
FEBRUARY 1, 2023 PAGE 9 OF 11
University, which would be responsible for community engagement and the
collection and analysis of qualitative data.
For the project, DCHS would dedicate staff to enhanced postpartum services and
integration of health information technology tools to facilitate the coordination
of care.
CHANG: Move to authorize staff to apply for a grant from the Patient -
Centered Outcomes Research Institute to address health systems
factors and social determinants of maternal health
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
A recess was announced at 1:21 pm.
The meeting was reconvened at 2:00 pm.
10. FY 2023 Q3 Discretionary Grant Review
Stephanie Robinson, Grant & Operations Specialist, presented the funding
applications submitted to the County's Discretionary Grant Program for the third
quarter of 2022-23. The Board reviewed the requests and determined allocations.
OTHER ITEMS:
• Commissioner Adair announced she will view encampments in the China Hat
area tomorrow with Deputy Blaylock.
• Commissioner DeBone reported he will attend the COIC board meeting
tomorrow.
• Commissioner DeBone shared that he has offered to host a land use
leadership meeting for Oregon LandWatch on April 3rd.
Discussion ensued regarding allowing the use of Barnes & Sawyer in the
evening by outside groups. Commissioner Adair said if this is done, the
County should charge a fee. The Board asked that staff estimate the
potential cost of offering this service.
• Commissioner Adair said yesterday's COVA meeting included updates on the
organization's operations.
• Commissioner Chang reported that he testified on HB 2101 on behalf of the
County.
BOCC MEETING
FEBRUARY 1, 2023 PAGE 10 OF 11
• County Administrator Nick Lelack said Doug Riggs, the County's lobbyist, has
asked for the Board's top five issues to discuss with legislators this Friday.
The Board suggested rural ADUs, a behavioral health investment package,
homeless services facility investments, state investments in housing and
infrastructure (roads, water, sewer), and the enterprise zone bill.
Commissioner DeBone requested a spreadsheet or bill tracker be provided.
• Commissioner Adair attended the Redmond Chamber annual dinner event at
the Fairgrounds.
• Lelack reported that the County has issued the press release announcing two
upcoming vacancies on the Planning Commission —one at -large position and
one representing the Tumalo area.
EXECUTIVE SESSION:
At 2:39 p.m., the Board went into Executive Session under ORS 192.660 (2) (e) Real Property
Negotiations. The Board moved out of executive session at 3:01 p.m. to direct staff to
proceed as discussed.
At 3:02 p.m., the Board went into Executive Session under ORS 192.660 (2) (e) Real Property
Negotiations. The Board moved out of executive session at 3:16 p.m. to direct staff to
proceed as discussed.
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 3:16 p.m.
DATED this Day of AffLra2023 for the Deschutes County Board of Commissioners.
ATTEST:
tuw4 l6raL(
RECORDING SECRETARY
BOCC MEETING
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
Pity-
PHIL CHANG, COMMISSIONER
FEBRUARY 1, 2023 PAGE 11 OF 11
Angie Powers
From: Connie Peterson <cjp8784@gmail.com>
Sent: Saturday, January 28, 2023 10:22 AM
To: citizeninput
Subject: RFP for Studying Feasibility of New Camping Areas
Some people who received this message dont often get email from cjp8784@gmail.com. Learn why this is important
[EXTERNAL EMAIL]
Dear Commissioners,
It is my understanding from review of this issue that the. Request for Proposal (RFP) to initiate
feasibility studies to identify land in Deschutes County that would meet recreational camping needs
was not clear. That has resulted in the possibility of confused deliberation on Wednesday about what
kind of study the County wishes to fund. It seems there has been a mixing of two needs: one being
the very apparent need for additional campgrounds for tourists (many of whom are engaging in
dispersed camping in areas too close to our communities) and the other need being locations suitable
for persons who are houseless.
While both are legitimate needs, there are too many sites proposed and several of the sites put
forward are NOT appropriate for temporary outdoor shelters for persons experiencing homelessness.
Most of the proposed study sites are too far from from services and possible employment. And I
would hope you would all understand that it would be wholly inappropriate to consider mixing tourist
camping and outdoor shelter for the unhoused.
I believe that it is financially prudent for the County to focus this feasibility study on recreational
camping --most promising being sites 1, 3b and 7, and separate the need for additional
tourist camping locations from the needs of our houseless community. Such a study would be more
cost effective and actionable.
Thank you,
Connie Peterson
Bend
Angie Powers
From: Susan <cobishere@yahoo.com>
Sent: Saturday, January 28, 2023.12:22 PM
To: citizeninput
Subject: Camping Feasibility Studies Park Requirements
Some people who received this message >don 't often ge
[EXTERNAL EMAIL]
email from cobishere@yahoo corn, Learn why this is important
Dear Commissioners,
Please, consider including requirements for the new park(s) to accommodate off season
safe parking, winter sheltering and heat wave cooling stations facilities/amenities.
Why?
1. The climate crises of weather extremes is not abating anytime soon. Winters may not
have lots of snow, but we will continue to have severe temperatures with freezing rain
and strong winds. Also, the summers are hotter longer.
2. The unhoused populations are increasing - everywhere. Preparing opportunities for
safety in our county for people with less, is the humane thing to do.
3. People die of cold or heat exposure in our county for lack of a place to be. That is not
acceptable. Governments serve and protect. Shelters do both.
Deschutes County Commissioners, please, determine ways to assure our new county
parks are required to offer options to address these risks to human lives.
Be Well & Safe
Susan Cobb
Sisters, Oregon 97759
541-400-8312 (call or text)
Angie Powers
From:
Sent:
To:
Subject:
Michele McKay <michemckay@gmail.com>
Sunday, January 29, 2023 1:16 PM
citizeninput
Camping Feasibility Study RFP
Some people who received this message don't often get email from michemckay@gmail.com.'Learn why this is important
[EXTERNAL EMAIL]
Deschutes County Commissioners;
I'm writing to comment on. Deschutes County's Camping Feasibility Study RFP.
I understand the need for additional campgrounds to accommodate visitors and cut down on dispersed
camping in areas near communities.
And I understand the need for authorized camping areas and transitional housing for homeless people.
However, I do not believe the two should be combined, as they are entirely different concerns.
Visitor/tourist campgrounds are about outdoor recreation, and do not need to be located adjacent to towns..
Outdoor shelter and camping areas for the homeless need to be near services and employment.
My understanding is that 3 property site options would meet the needs of recreational/visitor camping:
1) 540 acres north of Cooley Road outside Bend (Fort Thompson Rd Property)
3b) 5 lots on the southwest edge of La Pine (City of La Pine 3rd St Properties)
7) 50 acres upstream of Lower Bridge adjacent to BLM land (Crooked River Ranch)
I urge the County to focus on feasibility analysis of these properties for tourist camping, while continuing to,
pursue sites for authorized camping and transitional housing for the homeless
Camping opportunities for visitors and for those without homes should be developed separately and
appropriately.
Thank you,
Michele McKay
Bend, OR
Angie Powers
From: Hal DeShow <haroldwershow@gmail.com>
Sent: Sunday, January 29, 2023 4:37 PM
To: citizeninput
Subject: Camping Feasability Study
[EXTERNAL EMAIL]
Hello,
My name is Harold DeShow, I am a resident of Deschutes County, and I am writing about the Camping
Feasibility Study. I think it is important for the Commissioners to recognize two facts; one, we have a huge
under -supply of recreational camping in our region; and two, shelter options for houseless folks are not helpful
if they are far from necessities like food and jobs. Yet, most people who want to go camping for fun would
prefer to be far away from normal services. It seems that conducting a Feasibility Study to cover these two
very different situations is a waste of money. Why not one feasibility study for recreational camping and a
separate study for sheltering folks who lack adequate housing?
Thank you for your consideration,
Harold DeShow
Angie Powers
From: John Heylin <jheylin@gmail.com>
Sent: Monday, January 30, 2023 6:45 AM
To: citizeninput
Subject: Camping RFP and Other Items
Some people who received this message don't often get email from jheylin@gmail.com Learn:why this is important
[EXTERNAL EMAIL]
Dear County Commissioners,
As someone who struggles to find affordable camping options in Deschutes County for friends and family, I
appreciate you looking into and possibly approving new campsites in the area. I have looked at the locations on
the Camping Feasibility Study website and believe that the following locations would make for great
campgrounds.
1. Fort Thompson Property: Not only is the sheer size of this potential property huge (540 acres) but it is
also located in an easily accessible spot that would make it easy for travelers to locate and also be close
to Bend and Redmond respectively. With all the new construction going on for the 97 bypass and the
new Costco going in, the location is great and easy for people to get to and from Bend and Redmond, I
do have concerns about getting on and off 97 but I'm not sure if that's relevant with the by-pass being
constructed. If this property is also going to be managed by the County itself it could be a great
opportunity to relieve the pressure on smaller campgrounds in the area while also showcasing how
amazing Deschutes County is. Just think of the hundreds of families camping, buying locally, going to
concerts, hitting up the Gambler'500, etc. This place would be a game -changer.
2. While smaller, the Stillwell Street Area just West of La Pine on 3rd would be a great location for
camping as well. It's within walking distance of Ray's which is a great grocery store with lots of options,
but also the businesses like Badland's Distillery.. Also it's within a short trip of Paulina Lake which is
BEAUTIFUL, Their campgrounds are always full so this would be a big help.
Crooked River Ranch area. This location would help to highlight our less known and also incredibly
beautiful area in North Deschutes County. Not only is it remote but it's also on a cliff overlooking the
river and the beauty of the High Desert (I mean Eagle Rock, woah!). Additionally it's right near Faith
and Hope Vineyard which has amazing wines and live music, but also right near Terrebone which is a
criminally under visited town in a' great location. Plus with Smith Rock being packed nonstop it would.
help relieve the stress on camping facilities there (I'm sure fly-fishers would love it too).
All in all I like the 540 acres North of Bend the most and hope it will be County -run.
Thornburgh Resort: How dumb will we look if we approve this development and then they run out of water.
Look at the National attention Arizona is getting for a neighborhood running out of water, now imagine they are
all millionaires and angry that they can't play golf or take showers in the desert anymore. Think "SF building
sinking into the ground and tipping over" level of lawsuits and courtroom battles. "Why did they approve this if
they knew water was in short supply?!" This will be a nightmare for anyone working in the County 10 years
from now.
Thank you for the work that you do and please keep in mind that we need to plan for 10+ years in the future for
what will be a drastically different environment.
Thanks,
John Heylin
Bend Resident
m. (510) 761-5230
Angie Powers
From: Monte Dammarell <kmriverhaus@gmail.com>
Sent: Tuesday, January 31, 2023 8:26 AM
To: Board; citizeninput
Subject: Why no Covid bivalent booster for young children in Bend?
Some people who received this message don't often get email from kmriverhaus@gmail.com, earn why this is important
[EXTERNAL EMAIL]
The SARS-Covid 19 bivalent booster for children aged 6 months-5 years was approved by the FDA and CDC
early in December of 2022. Why is this important vaccine for our younger children STILL not available in
Bend? It's not available at the Deschutes County. Health Department. It's not available at the offices of local
pediatricians. The current closest availability to Bend is at the Jefferson County Health Department. Please
engage and get this essential vaccine available HERE in Bend.
SIncerely,
Kathy Dammarell RN (retired)
Angie Powers
From: gladys biglor <gbigior@gmail.com>
Sent Tuesday, January 31, 2023 11:12 AM
To• citizeninput
Cc gladys biglor
Subject Proposed Landfill (dump) site #181300
Attachments: 2023_Iandfill.docx
Some people who received this message don't often get email from gbigior@gmail.com. Learn "why this is jmportant
[EXTERNALEMAIL]
Please include attached citizen input in Deschutes County Commission meeting that is scheduled
for February 1, 2023.
i
Date:
January 30, 2023
To: Deschutes County Board of County Commissioners
From
:
Gladys I. Biglor
62139 Cody Rd
Bend OR 97701
Re: Citizen Input on Consideration of Bear Creek Rd #181300 for Future County Landfill
Commissioners,
I urge you to remove the Bear Creek # 181300 from consideration for placement of the future Deschutes. County
Landfill (Dump).
Numerous reasons why this site should be eliminated from consideration can be found in recent SWAC meeting
notes/the written record to date. I wish to speak to what I believe is one of the most critical reasons why a future
landfill/dump should not be considered in this area; namely the proximity of the current proposed site to the
Bend Airport.
As background I want you know that in 1988/1989 Deschutes county considered placement of a;landfill on
county property located at the corner of Byrum and Bear Creek Rd. The proposal was dropped after enormous
input by neighbors who would be negatively affected. At that time there weren't nearly as many homeowners
and neighborhoods as there are now; 35 years later.
The serious concern I wish to highlight involves the close proximity of the Bend Airport to Bear Creek site
#181300. It is my understanding one, if not all of you, have discussed the possibility of seaking to relax current
rules that govern location of landfills within proximity of airports. I suggest, to do so would be putting citizens
at risk: neighbors, Life Flight, and all categories of air operations that operate in and out of the Bend Airport.
We have lived at our current location for 35 years. During that time the amount of airplane and helicopter flights
from Bend Airport have tremendously increased. What also has tremendously increased are the flocks of
starlings in and around the Bear Creek, Cody Rd, Cody Jr Rd, and Donna Lane neighborhoods. We've never
experienced as many as we are now, generated most likely from the current landfill that is some 7 miles away
from us:
The location
of site # 181300 is only 4 miles away form these neighborhoods.
As a reminder, it is well documented that bird strikes are a serious hazard to aviation which is why the FAA
prescribes rules governing wildlife hazard management. Many neighborhoods (people, families, Deschutes
County taxpayers) within proximity of #181300 will be put in harms way should government officials, at all
levels, relax aviation standards and place this proposed landfall at Bear Creek Rd:
Oh and you might need to know that an actively producing Bald Eagle nest is located at the corner of the
intersection of Bear Creek and Byrum Rd.
Sincerely,
Gladys I Biglor
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: February 1, 2023
SUBJECT: Consideration of Board Signature on letters of appointment, reappointment and
thanks for various Special Road Districts
RECOMMENDED MOTION:
Move approval of Board signature on the following:
• Letter reappointing Bruce Stendal to the Beaver Special Road District for a term
commencing January 1, 2023 through December 31, 2025.
• Letter appninting Russ Reed to the River Rand Snarial Rnarl Dictrirt fnr a term
commencing January 1, 2023 through December 31, 2025.
• Letter reappointing Mike Kutansky to the River Bend Special Road District for a
(retroactive) term commencing January 1, 2022 through December 31, 2024.
• Letter appointing Jim Close to the Deschutes River Recreation Homesites Special
Road District #1 for a term commencing January 1, 2023 through December 31,
2025
• Letter thanking Bill Inman for service on the Deschutes River Recreation Homesites
Special Road District #1
BACKGROUND AND POLICY IMPLICATIONS:
N/A
BUDGET IMPACTS:
None
ATTENDANCE:
N/A
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: February 1, 2023
SUBJECT: Public Hearing: Board Review of Two Appeals of a Modification Request to the
Thornburgh Destination Resort's Fish & Wildlife Management Plan
RECOMMENDED MOTIONS:
None.
BACKGROUND AND POLICY IMPLICATIONS:
On February 1, 2023, the Board will conduct a public hearing to review two appeals of a
Hearing Officer's decision denying a Modification request to the Thornburgh Destination
Resort's FW M P.
BUDGET IMPACTS:
None
ATTENDANCE:
Caroline House, Senior Planner
Anthony Raguine, Principal Planner
William Groves, Planning Manager
Legal Counsel
TES
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Board of County Commissioners ("Board")
FROM: Caroline House, Senior Planner
DATE: January 25, 2023
RE: Public Hearing: Board Review of Two Appeals of a Modification Request to the
Thornburgh Destination Resort's Fish & Wildlife Management Plan ("FWMP")
On February 1, 2023, the Board will conduct a public hearing to review two appeals of a Hearing
Officer's decision denying a Modification request to the Thornburgh Destination Resort's FWMP.
I. BACKGROUND
The Deschutes County Code (DCC) establishes a three -step review process for all destination resorts
as shown in Figure 1 below. Each step builds on the previous step and the review process becomes
increasingly more detailed. Additionally, the DCC has several code provisions that establish the
process(es) and requirements for a resort developer to modify an approved Conceptual Master Plan
(CMP), Final Master Plan (FMP), Site Plan, or Tentative Plan (i.e. a subdivision approval).
As part of the CMP and/or FMP review process, destination resorts are required to develop
mitigation plans to demonstrate any negative impacts on fish and wildlife resources will be
mitigated to ensure there is "no net loss" of habitat pursuant to DCC 18.113.070(D). This standard
is frequently referred to as the County's "no net loss" standard. In this case, the Thornburgh Resort
("Resort") developed several mitigation plans, including the existing FWMP ("2008 FWMP"), to
address the "no net loss" standard.
The Resort's FWMP establishes a set of requirements designed to mitigate impacts on fish habitat.
These mitigation measures address both water quantity (volume) and quality (thermal) impacts on
nearby streams and rivers from the Resort pumping groundwater for its on -site use.
117 NW Lafayette Avenue, Bend, Oregon 97703 I P.O. Box 6005, Bend, OR 97708-6005
e (541) 388-6575 (ia cdd@deschutes .org qi www.deschutes.org/cd
Figure 1 - Three -Step Review Process for Destination Resorts
Conceptual Master Plan (CMP)
The P provides t
ork for
development of the
Resort and is intended
o ensure teat the
resort the
requirements of
County's Destination
Resort zone.
Step 1
Final Master Plan FMP
Site Plans & Subdivisions
The FMP it corporates a
requirements of CMP
approval.
Step
II. SUBJECT APPLICATION
Each dement or
developrn rat phase o
tl e Resort must be
approved as part of a
Site Plan or Subdivision
approval,
Step
0
cton
,01ES
In August 2022, the developer of the Resort ("Applicant") applied for a Modification to replace the
2008 FWMP with a new FWMP ("2022 FWMP"). After the initial public hearing, a Hearings Officer
denied the Resort's Modification request based on the following two key issues:
1. The Hearings Officer found input on the 2022 FWMP from the Oregon Department of Fish &
Wildlife ("ODFW") is a relevant evidentiary consideration in determining if the "No Net Loss"
standard is met. However, the Resort did not provide ODFW enough time to review the 2022
FWMP and submit a meaningful response.
2. The 2022 FWMP does not contain clear, objective and enforceable compliance language, and
for this reason, there can be no assurance that the 2022 FWMP is likely or reasonably certain
to succeed at achieving the County's "No Net Loss" requirement.
As part of this decision, the Hearings Officer made a number of interpretative decisions that will
likely impact future development of the Resort and potentially other land use applications in
Deschutes County.
W. APPEALS
The Applicant and Annunziata Gould ("Appellant") both filed appeals of the Hearings Officer's
decision. Please refer to the attached Notices of Appeal for the specific appeal issues each party has
raised.
247-22-000678-MC / 247-22-000984-A / 247-23-000003-A Page 2 of 3
VI. SCOPE OF REVIEW
The Board has agreed to hear the appeals de novo. This means the Board can consider the record
developed as part of the initial Hearings Officer's review and consider new evidence and testimony
submitted by the Applicant, Appellant, parties and interested persons.
V. BOARD OPTIONS
At the conclusion of the Public Hearing, the Board can choose one of the following options:
1. Continue the hearing to a date and time certain;
2. Close the oral portion of the hearing and leave the written record open to a date and time
certain;
3. Close the hearing and commence deliberations; or
4. Close the hearing and schedule deliberations for a date and time to be determined.
VI. 150-DAY LAND USE CLOCK
The 150th day on which the County must take final action on these applications is March 12, 2023,
unless the Applicant requests an extension of the 150-day land use clock.
RECORD
The record for the subject application and appeals is as presented at the following Deschutes
County Community Development Department website:
https://www.deschutes.org/cd/page/247-22-000678-mc-thornburgh-destination-resort-
modification-cmpfmpfwmp
Attachments:
1. Hearings Officer Decision - 247-22-000678-MC
2. 2022 FWMP
3. Notice of Appeal - Applicant
4. Notice of Appeal - Gould
247-22-000678-MC / 247-22-000984-A / 247-23-000003-A Page 3 of 3
HEARINGS OFFICER DECISION
FILE NUMBER: 247-22-000678-MC
Mailing Date:
Tuesday, December 20, 2022
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-desti nation-resort-
modification-cmpfmpfwmp
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
BOCC Hearing Attachment 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
BOCC Hearing Attachment 9
Figure 1— Thornburgh Destination Resort Location Map
1I11i2RIX 4tiYi%CtT,
SITE DESCRIPTION:
1512OOIX3O77O1
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 facilities3 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
BOCC Hearing Attachment 1
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.
4
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
April 22, 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
BOCC Hearing Attachment 1
5
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 OrApp 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
a nenlod by (;n,,lrl The ('niinty'c nnnrniinl mine nffirmowl by I IIRA (I I IRA No. 2n1R-002 August 21
pM 1 ! NM' JJ•• � . I.-.-.-. , , yam...,. ,
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
BOCC Hearing Attachment 1
6
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 nnnrnunl fnr n IA/elrnme Cantor, (;ntohnuco (;nlf CIubhnuce nnrl Cnmmunitu HMI n,ithnri7arl
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-
BOCC Hearing Attachment 1
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 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. 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
BOCC Hearing Attachment 1
The "summary letter," in full, is set forth below:
8
"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:
BOCC Hearing Attachment 1
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 1,217 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 redLiced Thornburgh Resort .Hater 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
BOCC Hearing Attachment 1
"...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 20th 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
BOCC Hearing Attachment 1
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:
11
"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
BOCC Hearing Attachment 1
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 ,f 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.
12
Procedural Issue #4: County Delay in Submitting Items to Public Record
BOCC Hearing Attachment 1
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:
13
"'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."
BOCC Hearing Attachment 1
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.' 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 suhmit nn application t,i mr 1ify anal restart the 1 SQ-flay time rl,irk,"
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
BOCC Hearing Attachment 1
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):
15
"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."
BOCC Hearing Attachment 1
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 lffirer will address tha "cuihctnntachanba..." icd i in latar findings. I-lr, Mvar
,
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
BOCC Hearing Attachment 1
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
BOCC Hearing Attachment 1
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, Report (page 43), that the Hearings Officer "determine what authority, if
in the Staff ��cpvr � requested ng, y,
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
BOCC Hearing Attachment 1
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
BOCC Hearing Attachment 1
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
+ dependent ent i The FMP the + document that document iivt ^cpcnucii� upon any prior approval. 1IIe FMP, uic second step, i5 a uv�uiiienL uial. 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
BOCC Hearing Attachment 1
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 .uu:f.y. the Thornburgh rvn/runn 11relation to IVnn/runn 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
BOCC Hearing Attachment 1
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." ent " However, +I,.. Hearings Officer finds that I,-,+ nrr '10 11 2 non l-,...,..-,..e "of +L,.,
ueveiuf./111C1 it. I IVVVCVOI, the I ICQ11115J VIIII,er finds UIP1. what Vl.l. 1V.11J.VVV language V1 1.1 Id
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
BOCC Hearing Attachment 1
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 CI IP/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
BOCC Hearing Attachment 1
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.
P..L • I--.._ i#1 A. nrr 22 3 A 0
Substantive Issue ft1'F: L/l.l. LL.Ju.U4U
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
BOCC Hearing Attachment 1
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 FVvrviP. 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
BOCC Hearing Attachment 1
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 oul Idil Ig properties" issues in the findings for DCC 22.36.040 (B) above. Those lose 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
BOCC Hearing Attachment 1
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 +I... An.,.-.-;.,.,, `A!.,t,-+,,r Onli.,., dicti.,.,-,r., "� formal + +;.,., f
UCI IIICU 111 UIC MCI 1 IQllr VV GNJICI Online dictionary y as G IVI IIla1 assessment or examination Vtl 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
BOCC Hearing Attachment 1
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
BOCC Hearing Attachment 1
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:
29
Opponent Gould argues, at Bragar OR, p. 15, and Bragar Rebuttal, p. 8, that FMP Condition 1 on its
ton
own requires u` 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.
BOCC Hearing Attachment 1
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.
�_ Conn Condition forth the land
Applicant, in the comments quoted above, suggests �rvir wncaiuun 37 sets uuse process
that applies in this case.' 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
BOCC Hearing Attachment 1
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/of 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:
31
"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
BOCC Hearing Attachment 1
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
BOCC Hearing Attachment 1
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 VVIllikely occur during the summer IUItlJ. T/CloFUrC, the L
CU/IIgJ
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
BOCC Hearing Attachment 1
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 LandWatch 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:
34
"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. (GSFlow).
3. Flow and Temperature Modeling of the Middle Deschutes River, Part II -Impacts of GSFlow-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 teFish 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.
BOCC Hearing Attachment 1
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 RSI 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
..L.....t nt ple,te.., .,I.......-i..., discussion of that evidence. A ppli .-...r's
UV not represent Q complete or comprehensive CI id WIVC VIJI.UJJIVII of that CVi0Cl iLC. f\1JfJIII.QI II J summary
follows:
35
"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
BOCC Hearing Attachment 1
o 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 - - current understanding
of the 70 2 Mitigation Proposal, it :s unclear if 70 2 will
on our LVLL rluNu�u�, �� yet unclear the GUGG 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:
36
• 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
BOCC Hearing Attachment 1
• 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'
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
BOCC Hearing Attachment 1
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 1.....d use decisions) that the 9UUo FWMP mitigation obligations
over dllU IJJUCU at least five I IIVI IIVU1�11 land UJC decisions) Llidl the LVVO rwrnr nnugauvn uull�auunJ
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
BOCC Hearing Attachment 1
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 r__a:... r� .. dbli.L .. of �. the Applicant
al__
l rle LULL rvvivir JCL1IUII V df.l L/CdIJ tV eJ Ld UlIJll d series of 0pti0IIS open t0 LIIe Nf plll„dllt 1.0 uItel. 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
BOCC Hearing Attachment 9
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
BOCC Hearing Attachment 1
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
cumpiiance and sole reiiance on 011 RD well and strearnfiow 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
BOCC Hearing Attachment 1
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 1 1 2022) •ded 4L.......L ,.l to rlrfr\A! comments. T Flea.- Offs ...r ..I,.,.
IVUVC111ue1 .L+, LULL provided a LI IUUSI II.I UI response IJC to L'LJ VV The I ICC11111sJ 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
BOCC Hearing Attachment 1
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.
Gregory J. Frank
Deschutes County Hearings Officer
43
BOCC Hearing Attachment 1
EXHIBIT 1
Page 1 of 28
Summary Letter
CAS CAD E
G E O E N G I N E E R I N G
21145 Scottsdale DR, Bend, Oregon 977ot
360-907-4162 newtonjim@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, r.L., 1\.V., l.VV.l\.L.
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 9770i 360-9o7-062 w ww.cascadegeoengineering.com
BOCC Hearing Attachment 2
EXHIBIT 1
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
vv �ATER USE AI:'Nl;AL �dOL%#I","E
Golf Courses 501 AF
Irrigation 111 AF
Reservoir Maintenance 51 AF
Other Q/M 797 AF
TOTALS
CONSUMPTIVE USE
451 AF
66 AF
43 AF
319 AF
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.
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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
ThornburghResort usage andsuperior mitigation of future Resort Resort waterusage auger iur rcesort 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 977oi 360-9o7-4162 w ww.cascadegeoengineering.com
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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
BOCC Hearing Attachment 2
EXHIBIT 1
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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.
I1. 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
1 This is a Deschutes County standard only.
Cascade Geoengineering, LLC
21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
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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 GSFlow)
2 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
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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.
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BOCC Hearing Attachment 2
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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
4 Now that the Tree Farm transfer has been approved this LL may not be required.
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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 (lul) and Quality (at) rnitigation) 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 AFS. 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.
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EXHIBIT 1
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FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
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November 7, 2022
7
permit.6 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.
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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 Rivers. 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
8 This was the temperature Tetra Tech, a key consultant for Thornburgh Resort, utilized to
calculate thermal impacts during the 2008 FMP proceedings.
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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 less 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 i-vviviP 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.
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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.
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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 seeps'. 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 SySteill, diiU JCGVr1U, 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 farmers 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.
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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 loss 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 downstream16. 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.
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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
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.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
meaningful'$. 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 compiiance 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.
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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.
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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.
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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:
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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.
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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, irririnmg thousands of acres LUUIU 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
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BOCC Hearing Attachment 2
EXHIBIT 1
Page 23 of 28
FISH AND WILDLIFE MITIGATION PLAN - 2022 FWMP
RELATING TO POTENTIAL IMPACTS OF T HORNBURGH'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
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21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
BOCC Hearing Attachment 2
EXHIBIT 1
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 loss/degradation standard
set by DCC 18.113.070(D).
Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
BOCC Hearing Attachment 2
EXHIBIT 1
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 GSFIow
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.
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BOCC Hearing Attachment 2
EXHIBIT 1
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 applications25.
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 GSFlow. 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.
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BOCC Hearing Attachment 2
EXHIBIT 1
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
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BOCC Hearing Attachment 2
EXHIBIT 1
Page28of28
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
..__ _f __.___ -L the ...-t__ .-_.-.--:tt_d by G- 7036 pending the .__--lut:-._ _f the _-._tested
use of some of ure water permitted by 0-iiwo pending the resolution of 1ne 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.
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BOCC Hearing Attachment 2
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: (541-30-8479
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: Totyn04 15 Range 12 Section 00 Tax Lot See below
Appellants Sign. ire:. �• �_.P_ _ r �i Date: 12/30/2022
J
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
BOCC Hearing Attachment 3
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.
BOCC Hearing Attachment 3
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@S CH WABE, 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.
BOCC Hearing Attachment 3
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 Iand 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
BOCC Hearing Attachment 3
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.
11. REASONS a 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.
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BOCC Hearing Attachment 3
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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 1' YY 1v11 , W ti disagree with the requiredprocess. At page GV, theHearings 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).
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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 Iearings 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
address the compliance 1, ♦t, 2022 VU T! tD "'We believe at..,. be d
specifically. auul i; the issue 'J CumPiiain. with the 'J L. i vv ivii . ry . J VV V c this can be u011L
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
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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 onthe record hearing. This would require legal briefing ofissuesin the record only, thereby
y
substantially simplifying the Board' review process and administrative burden.
Very truly yours,
SCHWABE, WILLIAMSON & WYATT, P.C.
Kenneth Katzaroff
Enclosures
PDX\ 135849\262760\JKKA\3 5533075.1
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BOCC Hearing Attachment 3
RECEIVED
J.AN 03
LUW,)
A(H LFppDeryryschutesCounty ODD g I��
CI l•Y Y�.,/i M i `vl Fr 4r D f Vv E �I_ �4 p M E t U f
~aA-i -d S- obcz)0 T -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 .� bro,, Qr
Land Use Application Being Appealed: 247-22-00068-MC
Phone: ( 541 )420-3325
City/state/Zip: Bend, OR 97703
-omas+IP aA. rcrm
Section 00
Appellant's Signature; vtN.' rt- _ CZ+A
ACS
Property Description: To nship 15 Range 12
Tax Lot
See List on Following Page
Date: - ,2-02-3
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
BOCC Hearing Attachment 4
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.
BOCC Hearing Attachment 4
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:
ECEIV
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
BOCC Hearing Attachment 4
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,' 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.
BOCC Hearing Attachment 4
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.
BOCC Hearing Attachment 4
TOMASI BRAGAR DUBAY
January 3, 2023
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• 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 Hearings 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
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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.2 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.
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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.
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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.
' 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).
BOCC Hearing Attachment 4
TOMASI BRAGAR 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
BOCC Hearing Attachment 4
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 inn. Thank y'o
u.
Sincerely,
Jennifer M. Bragar
Enclosures
cc: (by e-mail)
client
Carol Macbeth
BOCC Hearing Attachment 4
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
Renews: 1/1/2025
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
As reorganized on
January 31, 2023
Project: 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
August 16, 2022 (As reorganized on January 31, 2023)
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") 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.
The mitigation requirements and enforcement measures are set out in Section II, below. The
following section discusses the results of the mitigation measures. The remainder of the
document provides background information and scientific analysis based of thermal modeling
and analysis by highly qualified experts and an expert analysis of the effects of pumping and
mitigation on fish and other wildlife that are dependent on the quality or quantity of Deschutes
Basin rivers and streams.
II. Thornburgh Mitigation: DCC 18.113.070(D) - The No Net Loss/Degradation
Standard ("No Net Loss").
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 four categories including:
A) Reduce water use and thus reduce impacts on the aquatic 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) Comply with the No Net Loss standard of DCC 18.113.070 (D) (Items 2-5 below):
2. Use 1,211 AF of existing 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, COID mitigation, 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. Thornburgh has provided 1.51 cfs of water in a quantity of no less than 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. Nothing more is required here.
Cascade Geoengineering,LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
3
C) Provide advance or excess mitigation which is not required to meet DCC
18.113.070(D)(items 6-7 below).
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 thousands of acres of Juniper forests onsite and on BLM Lands.
D) Compliance and Reporting measures.
8. Detail what constitutes compliance with this FWMP and what reporting actions
are required and who will be entitled to receive them.
Section A:
1. Limit Pumping To 1,460 AF Annually:
Groundwater 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.
Section 8:
2. Use OWRD Water Rights Certificates, Permits & Transfers for Pumping or
Mitigation:
For the purposes of this FWMP ("2022 FWMP") and compliance with DCC
it assumed certificated water
rights below will
18.113.070(D), is the certificated ll,d ICU IlgillJ in #a-d below Wlil be
transferred to and used at the Thornburgh property. Certificate 89259 (#e, below) is
being cancelled in -lieu of mitigation for any Thornburgh groundwater permit granted by
OWRD. The Temporary Credit from Deschutes Resource Conservancy (f) have been
leased since 2013 and may continue until such time that Thornburgh does not require
them, and the Three Sisters Mitigation water (g) has been transferred instream in
Whychus Creek.
None of these water rights require additional OWRD mitigation under OWRD's
mitigation program. Thornburgh presently owns items a-e which are existing water
rights. Rights a-d are being transferred from their original point of appropriation (POA),
which would be a groundwater well, or point of diversion (POD), which would be a
diversion from surface water, to wells at the Thornburgh property, while e is being
cancelled in lieu of mitigation consistent with the Deschutes Basin Groundwater
Mitigation rules. 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. Cancelling a right is done as
mitigation and results in placing water back in the system by cancelling the legal right to
use the water at the original point of appropriation.
While OWRD requires no mitigation for transfers, as they only change the point of
appropriation ("POA"), or point of diversion ("POD"), transfers can change the point of
impact where the withdrawals will be felt in the stream from one location to the other.
Cascade Geoengineering, LLC 21 145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
4
The change from where the stream was impacted under the original POA to the points
of impact from the Thornburgh wells is the only element that could affect the No Net
Loss standard and compliance with DCC 18.113.070(D). As such, CGE assessed whether
changes in the POA would change the location where impacts are felt in the stream, and
if so, how and to what degree that change could affect the no net loss standard and
compliance with DCC 18.113.070(D).
a. Surface Water Certificate 95746 (4/30/1902) and Transfer application T-13857
(LeBeau) —Thornburgh owns this certificate authorizing 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. An application for a permanent transfer, T-13857, has requested the POD
of this right currently at River Mile 56 on the Little Deschutes arm of the Deschutes
River to be transferred to a POA on wells located at the Thornburgh Resort, located
generally west of RM 143, roughly 1051 river miles from the point on the Deschutes
River closest to the Thornburgh Resort. These proposed changes to the certificated
water right do not require OWRD mitigation. Pumping has ceased and this water is
currently in the river 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.
Compliance with this is certificate occurs as described in Section D Compliance, 1(b)
IJCIVVV dealing VVIUI surface water.
b. 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). Applicant currently owns this certificated water that presently authorizes the
use of 4 acre-feet of surface water per acre of irrigated lands from Deep Canyon
Creek onto of 153.7 acres of land, for a total volume of 614.8 AF of water. This
certificated water requires no OWRD mitigation. The POAs of this water are wells
located at Big Falls Ranch. Pumping was stopped on 90 acres of this water in
September 2021 and the water was assigned to Thornburgh on September 23, 2021.
Pumping was stopped on the remaining 63.7 acres in 2022 and a deed conveying
this water to Pinnacle Utilities, LLC, was executed on November 30, 2022. (See
Exhibit A.) An application has been filed to transfer all 153.7 acres of water to wells
at the Thornburgh Resort. Compliance with the FWMP has been achieved.
All 153.7 acres of this water is in the ground at Big Falls Ranch to increase flows of
11 degree C groundwater into the stream reaches affected by the BFR wells that are
also impacted by Thornburgh Pumping. This is increased flow of cool groundwater
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.
2 In 2021 Thornburgh this water placed this water instream (lease) to benefit fisheries habitat. In 2022 it was
temporarily transferred to North Unit Irrigation District to provide drought relief to farmers.
Cascade Geoengineering, I.LC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
5
provides thermal benefits cooling the rivers and creeks. While our analysis does not
rely on the flows provided by Deep Canyon Creek to achieve compliance with the No
Net Loss standard, changing the mitigation source from 13-degree surface water
flows in the creek (2008) to 11 degrees C groundwater flows (2022 FWMP) into
areas 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.
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 Canyon Creek from where it could be transferred to an instream right with
mitigation credits issued groundwater or limited license applications. Also, if this
proposed transfer is not approved, and the transfer of the water below in c. is
approved, Thornburgh will replace this water with more of the BFR groundwater
rights that are not Deep Canyon Creek rights. Similarly, if the transfer in c. below is
not approved, but this transfer is approved, Thornburgh may replace the water in c.
with this water in (b). As both are being pumped from the same ground wells, there
is no effect which certificate is used to appropriate the water. This water can also
be cancelled in lieu of mitigation, or it can be transferred to instream use for
mitigation of permit G-17036, or the alternate permit. Neither action impacts the
efficacy of this plan.
Compliance with this FWMP regarding these certificates appropriated from the
ground is completed as described in Section D: Compliance, 1(a).
c) Ground Water Certificate 87558 (BFR) — Applicant currently owns 18.9 AF of this
certificate authorizing the appropriation of groundwater from wells located at Big
Falls Ranch to irrigate 6.3 acres. A quantity deed conveying this water to Pinnacle
Utilities, LLC, was executed on November 30, 2022. An application for transfer has
been filed to transfer all 18.9 AF to wells at the Thornburgh Resort. Thornburgh has
filed an application to transfer all 18.9 AF to wells at the Thornburgh Resort. This
certificated water requires no OWRD mitigation. Leaving this 11 degree C
groundwater in the ground at Big Falls Ranch has increased flows in the same
manner as the BFR water in (b) above. As noted above it cannot be converted to an
instream right the same way surface water rights can although it could be cancelled
in lieu of mitigation for any GW permit serving the resort as described in (b) above.
Compliance with this FWMP regarding this certificate appropriated from the ground
is completed as described in Section D: Compliance, 1(a).
d) Ground Water Certificate 94948 (1/30/1995), Transfer T-13703 (Tree Farm) —
Applicant currently owns roughly 327.5 AF of water authorizing the appropriation of
0.453 cfs Year -Round for Quasi -Municipal. This certificated water right does not
require mitigation. A temporary transfer T-13703 was approved by OWRD which
Cascade Geoengineering, L1,C 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
6
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. A permanent transfer has also been applied for and is in process. Pumping
ceased in 2021 increasing the flow of cold 11 degrees C groundwater into the
streams. The Final Order approving this transfer was issued on December 7, 2021.
At present it can be used per the transfer order, or in the alternative it could be
cancelled in lieu of mitigation for any groundwater permit or Limited License serving
the resort.
Compliance with this FWMP regarding this certificate appropriated from the ground
is completed as described in Section D: Compliance, 1(a).
e) Ground Water Certificate 89259 (3/18/1998) — Dutch Pacific — Applicant currently
owns this certificated water right allowing the use of 3 AF of water to irrigate 16.5
acres or 49.5 acre-feet of ground water 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. Pumping ceased in 2019 allowing all 49.5 AF of water
to remain inground to flow to Indian Ford Creek and into Whychus Creek. It is
presently being cancelled in -lieu of mitigation. This 16.5 acres of irrigation (49.5 AF)
of cool water will provide thermal benefits to the stream that will cool the creek and
mitigate for most all the impacts to Whychus Creek from Thornburgh pumping (see
Table o above). Leaving this VVO+G,in the stream IS like leaving +nc 106 AF If below)
of Three Sisters Irrigation District (TSID) water (13 degrees C) in the creek in the
same area. The TSID mitigation was shown to cool Whychus Creek from its point of
diversion to the Mouth.
Compliance with this FWMP regarding this certificate appropriated from the ground
is completed as described in Section D: Compliance, 1(a).
f) Temporary Mitigation Credits (DRC) — 6 acre-feet of temporary mitigation 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 groundwater as mitigation for permit G-17036. Excess mitigation has
been accumulating since then, further discussed in Section C page 8 below.
Thornburgh may cancel the use of these temporary credits at some point in the
future, although that is not required by this plan. They are not considered in the
efficacy of this 2022 FWMP in meeting the No Net Loss standard.
Compliance with this FWMP regarding these credits are completed.
g) Three Sisters Irrigation District ("TSID") Mitigation Water: Applicant has already
completed the arrangements leaving 106 acre-feet (1.51 cfs) of Whychus Creek
irrigation water (surface) permanently in Whychus Creek. This is surface water
diverted at the TSID diversion near the town of Sisters. See Map 2, pp., 5. It has
Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 9'7701 360-9(17-4162 www.cascadegeoengineering.coni
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
7
been permanently transferred instream at that point and is providing 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
200-300 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. As noted above, Thornburgh has completed
the required arrangements and this TSID mitigation is presently in the creek.
Compliance with this FWMP regarding this certificate is completed.
3. Comply w/OWRD Mitigation Rules: Provide Mitigation Before Pumping:
Mitigation required for any groundwater permit 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 ,....face water rights t_ :...,.L....d.,... rights n... providing mitigation wet_._ from
CXIJUIib' surface WdtCl rights W instream Cdlll II�'IItJ. By L1I VVIU 111�' IIIIU�'d tlVll WdlCl 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 Section 11-2. 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. 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; iv) Temporary
credits such as the 6 AF from Deschutes River Conservancy ("DRC"), or v) other
ground or surface water or credits that 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
Cascade Geoengineering, LLC 21145 Scottsdale DR, Bend, Oregon 97701 360-907-4162 www.cascadegeoengineering.com
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
8
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.
5. Provide 106 AF of Additional Whychus Creek Mitigation (TSID):
Thornburgh will provide 106 AF of Three Sisters Irrigation District water for
additional mitigation in Whychus Creek. This was required by Condition #39 of the
FMP approval. Thornburgh has provided documentation evidencing the funding
arrangements required, satisfying condition #39. TSID has completed the project
and the water is permanently protected in Whychus Creek. This mitigation was
previously proven to result in thermal and flow benefits from the TSID diversion
above Sisters throughout Whychus Creek. With the extra water from Certificate
89259, flows are further increased, which is expected to lower temperatures further
throughout Whychus Creek and in the Deschutes River onward to Lake Billy
Chinook.
Collectively, the measures in 1.-5. above will demonstrate Thornburgh Resort's continual
compliance with Deschutes County's No Net Loss standard in DCC 18.113.070(D), specifically as
it pertains to impacts to fisheries and aquatic habitat. The measures discussed in 6.-8. below
will provide excess mitigation that provide additional net benefits to the fisheries resources.
Seca:_.- ,.
Section L..
6. Leave Water Rights Instream or In the Aquifer Until Needed for Resort Uses:
Thornburgh intends to pump water only as needed. When not needed, it will allow
water to flow in the stream, or leave it in the ground, 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. The CGE memo
dated August 12, 2022, discusses the accumulation of excess mitigation. Table 5A of
that memo shows that Thornburgh, between now and 2071, will provide
"mitigation" benefits of 71,771 AF while reducing streamflow by 47,117 AF. This
creates excess "mitigation" benefits of 24,674 AF (or more) or the equivalent of
roughly 17 years of full pumping of 1,460 AF. Of that excess mitigation, more than
17,000 AF, or nearly 12 years of full pumping by the resort is provided from
groundwater.
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. Thornburgh
will request OWRD concurrence and permission from the County to periodically
allow it to use its excess mitigation water to provide drought relief to farmers
impacted by water shortages resulting from drought, the Habitat Conservation Plan,
Cascade Geoengineering, 1..LC 21 145 Scottsdale DR Bend, Oregon 97701 :360-907-4162 www.cascadegeoengineering.com
FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
9
or other extraordinary circumstances causing water shortages for farmers. 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 water to farmers severely impacted. 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.
7. Thin Juniper Forests Onsite and On BLM Lands.
Thornburgh is thinning substantial areas of Juniper forests both on site and on BLM
managed lands. Juniper is a native species that, with an increase in European
settlement in Oregon, has increase substantially throughout Oregon as a result of
increased human settlement within Oregon. With this increased human settlement,
and the associated changes to the environment through agricultural and livestock
grazing practices, 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
strung curreiation 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. Over the last 100 years there has been
large expansion in the acres covered by Juniper, which may be impacting water
levels. Deschutes and Crook Counties are both looking at Juniper removal as a
method to benefit water.
Deschutes County has received Federal funding for Juniper removal and is
promoting residents to utilize the funding to remove Junipers. Crook County is
looking at the construction and operation of a biomass plant to facility the removal
of some of the 600,000 acres of Juniper increases since the 1930's. Over the same
time, Crook County officials report an estimated reduction in water flow of 160,000
AF. 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. Crook County hopes to reduce Juniper
coverage and subsequently increase stream flows and return some of the 160,000
AF that has been lost from Crooker River flows.
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.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
Section D:
10
Compliance: The purpose of this section is to clarify what constitutes compliance with
this updated 2022 FWMP, whether during the review of Resort land use applications, as
reported as part of annual monitoring, or for any other purpose. As noted above
Thornburgh' owns 1,211 AF of water rights to be used for pumping or mitigation and
pumping at the point of diversion or appropriation of the certificate has been
discontinued. For the reasons discussed herein compliance with this FWMP has been
met for rights b-f, and will be met for the TSID water (g) in the manner discussed in this
Section, 1b below. For any additional water rights that are acquired compliance will be
met as described herein.
1. Compliance with this FWMP will occur differently for water appropriated from a
surface water Point of Diversion (POD) versus a groundwater Point of Appropriation
(POA) or for a mitigation credit as follows:
a. POA — Groundwater: For any future rights that may be acquired, compliance
occurs upon the cessation of pumping of the rights and along with any of the
following: deed evidencing the transfer of ownership, a submittal to OWRD of
any of the following: (i) an assignment of the water right to Thornburgh, (ii) an
application that seeks OWRD approval of a transfer to pump at the Resort
property, or (iii) a cancellation in -lieu of mitigation.
b. POD — Surface Water: Once acquired, Compliance occurs upon the cessation of
pumping at the source and submittal to OWRD, and OWRD issues a final order
(or its equivalent-) approving any of the following: tI/ an application that
transfers to pump at the Resort property, (ii) an application that transfers the
water to an in -stream lease, (iii) the cancellation in -lieu of mitigation, or (iv) an
application to transfer to obtain mitigation credits, permanent or temporary.
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 to use the credits as mitigation.
Thornburgh also agrees to the following measures to provide mitigation benefits over
and above the benefits achieved by the mandatory measures described above.
Noncompliance with these measures shall not, however, be grounds for declining
approval of a Resort development permit because these measures are not required to
meet any Resort approval criterion, including the no net loss standard:
2. Thornburgh will discontinue the exempt use of all three exempt wells located on the
Resort property (referred to as the Kem, Bennet and Price wells) prior to the
completion of Phase A-1. Where required for development purposes any of these
wells may be physically abandoned and sealed but that is not required for
compliance with this FWMP.
3 Pinnacle Utilities, LLC an affiliated company is the Resort's water provider.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
11
3. Discontinue the use of all purchased water rights listed in Section B2 a-e above (Pg.
3-6) until they are used by the Resort as a transferred water right or as mitigation
for pumping groundwater for Resort uses. The following exceptions apply: (1)
purchased rights may be pumped if necessary to avoid forfeiture; and (2) purchased
rights may be transferred for use by farmers, including those in the North Unit
Irrigation District or other party if used for farm use purposes as defined by ORS
215.203 (whether in an exclusive farm use zone or otherwise), if OWRD authorizes a
temporary transfer to help address the needs of farmers. Currently, such transfers
may be allowed by Executive Order of the Governor declaring a State of Drought
Emergency.
4. The Resort has already committed in its FMP to remove and/or thin thousands of
acres of Juniper trees from the Resort property and BLM lands to enhance wildlife
habitat values. The thinning and removal of Juniper trees can have a dramatic
reduction on the consumption of water, potentially saving hundreds of AF of water
per year.
Reporting: In addition to any reporting required by OWRD pertaining to water use or
mitigation, Thornburgh will provide annual reporting (no later than December 315t of
each year) to Deschutes County, with a copy to ODFW's local field office, of the
following information:
1. The status of each of the certificated water rights discussed in Section II-B2,
including the status of any transfer or cancellation applications affecting any of
those rights.
2. Copies of any annual reporting filed with OWRD.
3. An accounting of the total amount of water pumped under any of the water rights
discussed in Section II-B (2) between November 1— October 31 of the prior year.
4. An accounting of the total amount of a) groundwater left in ground, b) surface
water left instream (permanent or temporary), or c) water held as mitigation credits
(permanent or temporary) in accordance with this Section D, paragraphs a, b & c.
5. The accounting referred to in #'s 3 and 4 of this section will be maintained both
annually, and on a cumulative basis.
6. An accounting of the amount and certificate # of any water provided to farmers for
drought relief.
7. The amount and source of any OWRD mitigation used to mitigate for the pumping in
#3 of this section.
8. Any change in the status of any of the three exempt wells including whether they
have been abandoned to date.
9. Consistent with the 2008 FWMP, no additional reporting is required during the
review of any land use application related to the Resort.
III. 2022 FWMP Results
Results of Section II -A: Item 1.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
12
Thornburgh, after listening to the concerns of its neighbors as they pertain to water, has taken
dramatic steps to reduce its water footprint. The main point of this 2022 FWMP, is that
Thornburgh is voluntarily reducing it water usage from 2,129 AF annually to 1,460 AF annually, a
reduction of more than 31%. This reduction reduces every impact that Thornburgh's water
usage could create and is the driving principle behind this amended 2022 FWMP.
Results of Section II-B: Items 2-5.
Implementation of the elements of this FWMP described in 2.-5. above and the related OWRD
requirements as described herein are expected to result in replacement flow, or mitigation of
more than the resorts consumptive use of 882 AF per year at full build -out and to fully mitigate
for all impacts to the fisheries resource in accordance with the No Net Loss standard of DCC
18.113.070 (D). At least 1,323 AF (1,211 owned, 6 AF leased and at least 106 AF transferred
instream) of this replacement or mitigation water is already owned or leased by Thornburgh,
who has ceased pumping all of the water from its original place of appropriation. Where
needed Thornburgh has already filed transfers to change the POAs, the PODs, and the places of
use of the water rights presently owned. 1,123 AF of this water is already providing the FWMP
mitigation called for in this FWMP in advance of pumping.
Thornburgh retained experts to complete and exhaustive analysis of the impacts to stream flow,
along with the thermal impacts from Thornburgh's pumping on fisheries habitat and
commissioned over 15 technical reports or memo's detailing that analysis. A summary of results
includes
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. In most cases reduce net stream temperatures in the Deschutes River',
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. Increase habitat quantity in the Little Deschutes River,
4 Thornburgh's 2008 mitigation measures estimated an increase in temperature change of 0.00 degrees C
at Lower Bridge, 0.10 degrees C at Steelhead Falls, and 0.1 degrees C below the mouth of Whychus Creek.
The hearing officer approved these increases which is DEQ's legal threshold for measurable change.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
13
j. Increase habitat quantity and improve habitat quality in virtually all areas of Whychus
Creek and the Deschutes River, and:
k. Reduce the thermal impacts in the Crooked River as compared to the 2008 FWMP to
levels immeasurable, including in spring areas noted by ODFW, and not likely to cause a
change in the quality or quantity of fish habitat.
These elements a-k, 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 which may not occur for decades into the future after Thornburgh's
pumping begins. Measure C below discusses the excess or advance mitigation being
provided to the fisheries resource.
Results of Section C: Items 6-7.
Excess Mitigation: 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 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. 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.
Juniper Thinning: As the resort is developed it will both clear and thin Junipers from the
Thornburgh lands. It will also thin in conjunction with the BLM, approximately 3,400 acres of
Junipers on BLM lands.' The benefits to the watershed from Juniper reductions can be
substantial and there are concerted efforts to reduce human induced Juniper expansion that has
occurred in many areas of the west, including Deschutes and Crook Counties. Many of these
efforts are supported and financed by Federal funding. While it is difficult to quantify the exact
benefit to the watershed in terms of increased stream flows, the reduction in Juniper coverage
has been shown to be positive. When studies show 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.
' 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.
6 Thornburgh will thin roughly 3.5 acres of Junipers for every acre of land it develops on the Thornburgh
site. At the time of the WMP Thornburgh estimated that about 900 acres would be developed.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
14
A technical report issued by Resource Specialists, Inc. dated January 31, 2023 estimated
Thornburgh's removal and thinning of Juniper trees could save as much as 304 AF of water
annually from when thinning occurred. See Exhibit B.
Comparison of Thornburgh's 2008 FWMP vs. the 2022 FWMP.
All the OWRD mitigation in the prior FWMP was surface water flows benefitting only Whychus
creek from Sister to the Deschutes River and the Deschutes River between Bend to Lake Billy
Chinook. Of that mitigation water 0% was groundwater (coldest), while 62% (was 13 degrees C)
Deep Canyon Creek water, with the remaining 38% being warmer, (26 degrees C) surface water
from COID that provides little thermal benefits. The average temperature of the 2008
mitigation was 18 degrees C. By contrast, this 2022 FWMP is comprised of roughly 84% cold
groundwater (11 degrees C), and 200 AF of LeBeau surface water (20.4 degrees C) for an
average of 12.5 degrees C.
The current plan, like the 2008 FWMP, leaves cool water in the stream to mitigate for thermal
impacts from the reductions of groundwater discharge into the river. The current plan,
however, substantially increases the percentage of cool water mitigation from 62% to 84% and
provides benefits into the affected streams, including Whychus and Deschutes included in the
2008 FWMP but also the Little Deschutes River, Indian Ford Creek, and the Crooked River that
received no benefits in the prior FWMP.
In short, the current plan will increase summertime flows in the critical areas while at the same
reducing average stream temperatures. Regardless of where the remaining 243+j- AF (1,460-
1,217) of water rights or mitigation comes from this plan has already mitigated for the full
impacts to seeps and springs.'
IV. Background and Baseline
The Thornburgh Resort (the "Resort" or "Thornburgh") 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 determination was made by OWRD in connection with its evaluation and
approval of Thornburgh's original water right 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 projected flow reductions in the "zone of impact" identified by OWRD, in
7 206 AF of surface water including the 6 AF of DRC credits. Both plans have an additional 1.51 cfs (at
least 106 AF) of cool 13 degree C TSID surface water.
8 If all 249 AF of additional water was from a surface water source the resulting % of total mitigation comprised of
groundwater would be 69.2%, still greater than the 0% of groundwater and 61.7% of cool Deep Canyon water in the
2008 FWMP.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
15
this case the "General Zone" of impact, consistent with OWRD's Deschutes Basin Groundwater
Mitigation Program.
Separate from this mitigation and, to meet Deschutes County's own No Net Loss standard found
at DCC 18.133.070(D), Thornburgh voluntarily agreed to address both flow and water
temperature concerns, which was to serve as a component of the mitigation measures for the
original FWMP. Those measures are set out in Section V. Mitigation and Enhancement Measures
of the FWMP. These and other measures added to the 2008 FWMP during the review of the
Final Master Plan ("FMP") were determined to fully mitigate for any negative impacts on habitat
and to achieve compliance with DCC 18.113.070(D).9
The core component of the 2008 FWMP was adding cooler water to the river upstream of areas
that were important for fish habitat. Thornburgh identified Deep Canyon Creek as a source of
this cooler water, which had a temperature of approximately 13 degrees C. This water,
however, has historically been pumped directly from the creek for irrigation purposes before it
reached the Deschutes River. Thornburgh committed to purchasing these water rights and
placing them in stream to improve flows and to cool the river.
In 2008, the use of this cool water made up just 62% of the total mitigation promised by the
FWMP, but was found sufficient to fully mitigate for 100% of the thermal impacts to the
Deschutes River (and to Whychus Creek as well according to Oregon Department of Fish and
Wildlife ("ODFW")) attributable to Thornburgh's pumping. Additional impacts of 1.87 cfs10 to
seeps and springs were identified in the 2008 FWMP, which planned mitigation by leaving 1.97
_L_ (equal a_ 1037 _1 the impacts) 01 the Deep Canyon
cfs �eyuai w tu�io of the nnNau�) u1 the Deep �,anyun water in the river upstream of areas
identified as critical fish habitat. Additionally, this mitigation was determined by the 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 that 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 proven to meet the No Net
Loss standard and to provide additional benefits to habitat resources in Whychus Creek. This
mitigation project has been completed.
V. Resort Water Supply and OWRD Mitigation
A. Resort Water Needs and Supply
Thornburgh's water supply is groundwater from the General Zone of the Deschutes Basin
Regional Aquifer and is pumped from numerous wells located within the Resort boundaries.
'This is a Deschutes County standard only.
10 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.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
16
This has not changed since the Resort was first approved in 2006. The original plan anticipated
6 groundwater wells would be installed. Presently, there are 8 potential groundwater wells.
However, changes to Resort infrastructure may require additional well locations to be added or
moved. As was noted from David Newton in a memo dated August 24, 2021, (Exhibit C) 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.
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. Thornburgh uses to be served 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
OtherOther V97 IVI 1 AC 200 AC
� / -JUL, /1l
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 as shown in table 2 below.
The source of Thornburgh water remains groundwater from the regional aquifer to be supplied
via groundwater wells located on the Thornburgh property. All the wells Thornburgh will pump
from are within the boundaries of the Resort and are pumping from the same regional aquifer,
the Deschutes Formation Aquifer. The location of wells within the resort have no change to the
potential effects of groundwater pumping.
2. Reduced Water Use at Full Resort Build -Out
WATER USE ANNUAL VOLUME CONSUMPTIVE USE
Golf Courses 501 AF 451 AF
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
Irrigation 111 AF 66 AF
Reservoir Maint 51 AF 43 AF
Other Q/M 797 AF 319 AF
TOTALS
1,460 AF 882 AF
3. OWRD Alternates to Transferring Thornburgh's Water Rights.
17
Thornburgh has numerous applications, permits and other certificated water rights, as listed
below for use as part of the Resort's water plans that may be used for consumptive water or
mitigation water purposes. In addition to transferring certificated water rights to the
Thornburgh property, alternatively, they can be used to mitigate for pumping of groundwater
reported under any groundwater permits, or Limited License. OWRD mitigation must be in the
form of legally protected water for instream use which can be accomplished in different ways
acceptable to OWRD, including: i) transferring existing surface water rights for irrigation use into
protected instream use; and ii) voluntary cancellation of either surface or groundwater permits
in lieu of mitigation. Each method results in the full amount of pumped water allowed under
the certificate to be protected permanently instream. OAR Chapter 690, Division 505 (the
Deschutes Basin Groundwater Mitigation Program). Thornburgh can use a surface water
certificate either way but can only cancel groundwater certificates "in -lieu" to create OWRD
mitigation. Regardless of the methodology for meeting the mitigation obligation, the result is
similar: the authority to pump water in one location ceases and allows water to be pumped
from wells at the Thornburgh property. Mitigation is discussed in detail below.
Using the certificated rights for mitigation by either cancelling the right in -lieu or transferring it
instream provides at least equal benefits to streamflow and temperature as transferring the
water to the Thornburgh property. Either method of providing OWRD mitigation will provide
sufficient benefits to fish habitat such that there is no net loss or degradation of the resource.
4. Groundwater Permits, GW, and LL Applications:
a. 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 as the initial mitigation
and the permit was issued. Due to unforeseen delays, Thornburgh was required to
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
18
apply for an extension of the permit, which was granted in 2018 with OWRD issuing a
Proposed Final Order and Final Order granting approval. Ms. Gould subsequently filed
suit 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 has protested this PFO and is seeking a contested case
hearing.
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.
b. 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 by Ms. Gould. 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.
c. 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.
d. 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.
The source of water pumped from groundwater wells located at Thornburgh is the regional
aquifer residing under the Resort and throughout much of Central Oregon. The source and
method of supply —or the impacts generated from withdrawal of water —does not change based
upon which permit, or certificate(s) Thornburgh reports its groundwater pumping under (i.e., a
transferred right, permit G-17036, or an alternate permit or certificate). OWRD rules and
regulations govern the withdrawal of water from the aquifer regardless of permit or certificate
number, and the impacts to that aquifer are the same regardless of the legal mechanism for
withdrawal of the resource.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
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B. OWRD Mitigation Requirements for New Groundwater Permits
19
Mitigation is required for new ground water permits in the Deschutes Basin under ORS 390.835
and related administrative rules in OAR 690-505-0500 et seq. This does not apply to certificated
water rights that have been fully developed and need no further mitigation. 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.
Under OWRD rules, all new ground water uses within the USGS study area are presumed to be
in hydraulic connection with the Deschutes River system. The rules require mitigation to offset
the impact of ground water pumping on surface water flows. In reviewing applications for new
ground water rights, OWRD determines the total quantity of water to be diverted from
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 within the surface water system in which the
of
impact 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). Water Watch 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. The application for the replacement
permit, permit application G-19139 uses the same consumptive use rates applied by OWRD
because of 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.
C. Thornburgh OWRD Mitigation Plan
Applicants proposing municipal or quasi -municipal water use have the option of providing
mitigation in incremental units tied to specified phases of development; however, the mitigation
obligation for each phase of development must be provided in full before water use may begin
for that phase. Thornburgh submitted several versions of its "Incremental Mitigation Plan"
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RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
20
("IMP") to OWRD as allowed by OWRD rules. Changes to the IMP may occur in the future
without need for amending this plan. The IMP describes the proposed timing for meeting the
mitigation obligation for Permit G-17036, developing the 2,129 AF of water uses and mitigation
over several phases extending out to 2035.
Because of extensive and protracted litigation and challenges to land use and water permit and
transfer applications and the delays in processing the contested case on the extension of the
permit, Thornburgh developed extensive additional water resources as noted in Section B
above, that can be used to comply with the No Net Loss standard. Thornburgh completed
funding for the TSID mitigation that has been determined to fully mitigate for groundwater
reductions projected to occur to Whychus Creek based on the water use studied by Mark Yinger
that overstated the water use of the Resort. This mitigation has already been provided by TSID
and is described in B.6. above.
At this point it is unclear how much water will be pumped from G-17036 or any alternate "NEW"
groundwater or limited license permit.11 What is clear, however, is that the Resort has agreed
to reduce its water use from 2,129 AF with a consumptive use of 1,356 AF to 1,460 AF with a
consumptive use of approximately 88212 AF. More importantly, this FWMP has accounted for
the maximum amount of pumping that could occur of 1,460 AF and is providing mitigation that
meets or exceeds the no net loss standard. Thornburgh will be required to provide mitigation for
this amount of water when due, which is before pumping consumptive water for an approved
resort use. Thornburgh's maximum water use is capped to 1,460 AF, which is less than 1/100th of
1% of all current water use (approximately 750,000 AF) in the Deschutes Basin.
The certificated, fully mitigated water rights above, except for the Dutch Pacific water rights,
have been or are being transferred to the Thornburgh wells. The transfers will change the place
of appropriation and use. The first of these, Transfer T-13703, was approved transferring 327.5
AF of quasi -municipal water from a well in west Bend to the Thornburgh wells. The total
amount of the planned transfers, including T-13703, if approved, is 1,161 AF. In the alternative
the 1,161 AF of certificated water rights could be cancelled (both the groundwater and surface
water rights) or transferred instream (just the surface water rights) for mitigation credits. All
this water would comply with the OWRD mitigation rules if used in that manner.13 Certificate
89259 (2. E. above) for 49.5 AF is being cancelled in lieu of mitigation. When all the transfers or
cancellations are done, Thornburgh will need to obtain a relatively small amount of additional
water rights to transfer to its property or to use as mitigation. Because of the efficacy of the
present plans, most critically is the fact that the 1,217 AF14 already mitigates for 119% (w/out
the TSID or 198% with it) of the impacts to springs and seeps15, and that the source of remaining
1 It is unnecessary to determine this at this time as the source of water must remain the same, the
Deschutes Regional aquifer. DCC 18.113.070(K). However, the mitigation for impacts to habitat based
upon withdrawal from that source are the subject of this document.
12 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.
13 As the basic premise of the mitigation program was to halt expansion of water use in the Deschutes basin, it cannot
allow for expansion of use and must instead be permanently instream.
14 Including the DRC credit.
15 This is regardless of how the water is used. The analysis of the ratio of cool water mitigation is provided below.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
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August 16, 2022 (As reorganized on January 31, 2023)
21
water coming from within the General Zone of Impact will not create an adverse impact on the
fisheries habitat.
Of the certificated water rights described above, Thornburgh owns 1,211 AF16 that at the time of
this report it is not pumping. 200 AF of that is surface water that is not being pumped from the
river south of LaPine while 1,011 AF 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" accumulates for years until the impacts are fully felt in the stream. As is discussed in
more detail below this excess mitigation accumulates to a substantial amount.17
D. Groundwater Withdrawals and Quality Mitigation
In other resort approvals, OWRD mitigation only18 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 despite
the fact that 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 (groundwater mitigation) or by leaving water
in the stream (surface water mitigation) which typically has the benefit of reducing river and
creek temperatures.
Increasing streamflow is the main purpose of the OWRD mitigation program. It is 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, opponents have focused on the
location of the impacts to the area below Lower Bridge on the Deschutes River and lower
Whychus Creek. However, these areas are where discharge of significant amounts of cold
groundwater discharge into the Deschutes River, Crooked River and Whychus Creek,
dramatically lowering stream temperatures and resulting in improved water quality.
16 The 937 AF currently left instream presently does not include the 106 AF of TSID water in Whychus Creek currently
flowing from the TSID diversion to the mouth of the creek and into the Deschutes River.
17 Thornburgh may allow farmers 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.
18 Meaning standard mitigation credits issued in conjunction with the Deschutes Groundwater Mitigation
program.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP) 22
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
In the original FWMP, groundwater withdrawals were mitigated for by providing surface water
in the Deschutes River and its Deep Canyon Creek and Whychus Creek tributaries. In the case of
the Deep Canyon Creek mitigation, surface water mitigation was justified in the 2008 FWMP
because the creek itself is spring fed. While it is true that this water is cool, the surface water is
heated (from approximately 11 degrees to 13 degrees) as it flows down the creek prior to
discharge into the Deschutes River. In 2008, Tetra Tech's Mass Balance Analysis19 reported
minor thermal impacts (temperature increases) may occur in the Deschutes River. With
Thornburgh's 2008 mitigation measures, Tetra Tech's analysis estimated a temperature change
of 0.00 degrees. C at Lower Bridge, 0.10 degrees C at Steelhead Falls, and 0.1 degrees C below
the mouth of Whychus Creek. Even though there was an 0.1 degree C increase in temperature
(impact) in the critical fish habitat at Steelhead Falls and below Whychus Creek, the mitigation
plan was approved as meeting the No Net Loss standard.
In the case of Whychus Creek, project opponents argued that slight groundwater withdrawals
that occurred in both the upper and lower parts of the Creek impacted lower Whychus Creek.
Opponents claimed it to be an area of critical fish habitat because it receives substantial cold
groundwater discharges from the regional aquifer. The 2008 hearings officer expressed
concerns about the creek during the peak summertime temperatures. While Thornburgh
disagreed that mitigation was needed for Whychus Creek, it offered a solution to increase flows
with the use of surface water. The solution was to leave 106 AF of cool mountain water in the
creek from a point south of Sisters that would otherwise be pumped by TSID. The use of this
TSID mitigation was challenged by a single project opponent. It was, however, approved
because it was shown to achieve compliance with the No Net Loss standard based on an analysis
of the impact of TSID mitigation water on temperatures in lower Whychus Creek. This
mitigation also provides substantial additional thermal benefits to the middle and upper parts of
the creek that were not even considered to meet the standard due to the limited scope of the
review on remand. 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 4/1,000ths of a degree 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 or 1/1,000th of a
degree, again in an amount too small to be measured)20. Three Sisters Irrigation District has
completed the project, and Thornburgh has fulfilled its agreement to provide this the water
which is now instream.
While Yinger 2008 noted roughly 13% of the flow reduction impacts would be felt in the
Crooked River, 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
19 Tetra Tech overstated impacts by allocating 100% of the impacts of 1,356 AF consumption into the
Deschutes River which was not accurate. Yinger 2008 report stated lower % impacts, and when corrected
the result is lower thermal impact.
20 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.
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REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
23
Osborne are warmer (between 11.6 and 13.7 degrees C21) than the discharges noted into the
Deschutes or Whychus (around 11 degrees C). See Exhibit 6, OWRD Spring Temp. Still, to
better understand any thermal impacts to the Crooked River from Thornburgh pumping,
Newton undertook mass balance analysis of the 2008 mitigation plans comparing that to the
current 2022 plans.
In the CGE memo dated August 12, 2022, impacts to the Crooked River were analyzed based on
the Yinger 2008 report using both the 2008 FWMP mitigation and Thornburgh's current plans.
Both scenarios used the OWRD temp data, Yinger 2008 impacts, and recorded flows at Opal
Springs and Osborne. The 2008 FWMP had no Crooked River mitigation. All mitigation was
Deschutes River and Whychus Creek surface water mitigation. The 2008 plan resulted in very
slight temperature increases of between 0.0001 to 0.0017 degrees C. The 2022 plan used the
same inputs but included mitigation that came from the cessation of pumping BFR groundwater,
some of which impacts the Crooked River. As a result, the 2022 plan results in even smaller
temperature increases, ranging from between 0.0000 to 0.0004 degrees C. Although the 2008
FWMP allows more than 4 times the thermal impacts of this 2022 Plan, the thermal impacts
range from between ZERO to 4/10,000ths of a degree C. None of these amounts can be
measured and as such are considered as no change scientifically. They have been described as
having no impact on fish habitat22. Subsequent analysis was done by Four Peaks and Newton to
detail the impacts on the Crooked River. The resulting thermal impacts are 0.00 degrees C at
both Opal Springs and Osborne Canyon. In both cases, the resulting benefits are too small to
physically measure.
E.
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. This plan takes
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:
21 As recorded by OWRD staff and noted in Exhibit 6.
22 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.
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
"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 "[ajny
negative impact on fish and wildlife resources will be completely mitigated so
that there is no net loss or net degradation of the resource." 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."
24
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/Degradation standard.
That standard is based solely on impacts created by Thornburgh's pumping which were
acknowledged to be negligible in 2008.
In early correspondence on this issue, ODFW identified concerns about potential impacts on
cold water springs and seeps in the Whychus Creek sub -basin because of Thornburgh's
groundwater use. Following consultations with OWRD staff and the Department of
Environmental Quality and their own internal review, ODFW determined the type of habitat
potentially affected by the Resort in Whychus Creek would be classified, for purposes of
commenting on the Resort's FMP application, as Habitat Category 2. This conclusion was based
on ODFW's determination that temperature impacts to stream flow, if present, can be mitigated
with appropriate actions. As used in the ODFW Mitigation Policy, "Habitat Category 2" describes
essential habitat for a fish or wildlife species. Mitigation goals for this category of habitat,
standards that do not apply to the County's review of the FWMP, are no net loss of either
habitat quantity or quality and to provide a net benefit of habitat quantity or quality. OAR 635-
415-0025(2). 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. This led to legal challenges from
Annunziata Gould who claimed the mitigation water was "hot water" that would harm fish
habitat in lower Whychus Creek. Ms. Gould also argued on appeal of the FMP and 2008 FWMP,
without success, that temperature impacts (of .1 degree C) to the Deschutes River violated the
no net loss standard.
As a result of the Gould challenges, NCI undertook extensive mass balance analysis in 2015-2017
of the impacts on Whychus Creek without mitigation that showed maximum thermal impacts of
0.004 degrees C in Whychus Creek under the peak summertime temperatures and the lowest
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP) 25
RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
summertime flows. It also provided an analysis of the TSID mitigation. The analysis showed that
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 downstream23. 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 adopted in this 2022 FWMP. From the point that
surface water withdrawals cease and aren't being pumped from surface water and from the
point where previously pumped groundwater no longer being pumped is discharged into rivers
and streams, increasing flows reduce thermal impacts, which in turn lowers stream
temperatures from that point of discharge on downstream.
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 Toss 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
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.
23 The TSID mitigation reduced temperatures slightly throughout Whychus Creek starting from the TSID
diversion where the water was left in stream.
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RELATING TO POTENTIAL IMPACTS OF THORNBURGH'S
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August 16, 2022 (As reorganized on January 31, 2023)
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
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
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FISH AND WILDLIFE MITIGATION PLAN - ADDENDUM #2 (2022 FWMP)
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REDUCED GROUND WATER WITHDRAWALS ON FISH HABITAT
August 16, 2022 (As reorganized on January 31, 2023)
27
and aquatic habitat. As such this 2022 FWMP will exceed the no net loss/degradation standard
set by DCC 18.113.070(D).
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Thornburgh Proposed Revisions to FMP Conditions
File No. 247-22-000984-A; 247-23-000003-A
Current FMP Condition 38: "[Thornburgh] shall abide by the April 2008 Wildlife
Mitigation Plan, the August 2008 Supplement, and all agreements with the BLM and ODFW for
management of offsite mitigation efforts. Consistent with the plan, [Thornburgh] 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 propert, and
coordination with ODFW to model stream temperatures in Whychus Creek."
Proposed Revised FMP Condition 38: "[Thornburgh] shall abide by the April 2008
Wildlife Mitigation Plan, the August 2008 Supplement as amended by the 2022 Plan, and all
agreements with the BLM and ODFW for management of offsite mitigation efforts. Consistent
with the plan, [Thornburgh] 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 propert, and coordination with ODFW to model stream
temperatures in Whychus ICreeld."
Proposed NEW FMP Condition 40: Thornburgh shall comply with the 2022 Fish and
Wildlife Mitigation Plan, including its compliance and reporting mechanisms found in Section II
oft that plan.
Commented [KK1I: Propose to delete because:
I) It describes what measures were in the 2008 Plan;
2) Termination of exempt use of wells remains in the 2022
Plan; and
3) Modeling of Whychus Creek with ODFW has been
completed and so this portion is satisfied.
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject:
Name sAti i v ca,-""
Address O l c Cal S' b A Ck , i SL qt0
Phone #s " g 1 ` 7,0 Q
joio,47)6(Vi4 1` e 4 (<416,,
Neutral/Undecided
E-mail address
Tn Favor
1 (11 J [ .1), J/' —7\40 N
Date: Z J \ 17-3
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
Deschutes County
February 1, 2023
Presented by Jennifer Bragar on behalf of Annunziata Gould
121 SW Morrison Street, Suite 1850, Portland, OR 97204
jbragar@tomasilegal.com
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* Water right application G-16385 (applied for by Thornburgh Utility Group LLC) became Water Right Permit G-17036
Full discussion, citations and references to source material in the record for Slides 6-10 are provided in my letter November 7, 2022, pp. 18-28
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* Water right application G-16385 (applied for by Thornburgh Utility Group LLC) became Water Right Permit G-17036
Full discussion, citations and references to source material in the record for Slides 6-10 are provided in my letter November 7, 2022, pp. 18-28
The Findings of Fact for the FMP approval were also based on this same water right.
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* Water right application G-16385 (applied for by Thornburgh Utility Group LLC) became Water Right Permit G-17036
Full discussion, citations and references to source material in the record for Slides 6-10 are provided in my letter November 7, 2022, pp. 18-28
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BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: Date:
Name i'?/'
Address
Phone #s
E-mail address
P-- 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
Subject:
Name
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
o,c7E0.."?.-At(�
Address ZS Off' L\ -Cn 5(-Ds -bR-wc_
6R_ 9,—no3
Phone #s 1'/D
E-mail address v-- 5 1<.'6
In Favor
Neutral/Undecided
Date:
I
Opposed
Submitting written documents as part of testimony? >( Yes 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: e/f- ki): id I 74141
Name U axle,
Address D /--) let vis
(77-e- klei-L
Phone #s 3) H) "7 LF
E-mail address rtivte, I e fo-v\,,,z0 5 MaiL-14 ny'Vfrt__
In Favor
Neutral/Undecided 116 Opposed
Submitting written documents as part of testimony? Yes 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:
Name ..,00, (A 9 imo.•'t
Address L,1 .Td CO/wk.--0
Date:/ �' a` 3
Phone #s ,l — 3I'-' 7 Y
E-mail address °N\ ki u' _ co. Ce zLe CANYL
In Favor
Neutral/Undecidedpposed
Submitting written documents as part of testimony? Yes RrNo
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: ...~` �2��gi`
Name 8iL d L Il / ` 62-- (
Address 6,6 e9 0 W J L-t Sd-
cgefra 0 le 972
Phone #s 5 / l
E-mail address
In Favor
Neutral/Undecided giOpposed
Submitting written documents as part of testimony? Yes X No
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
Subject:
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Name V 00
Addres_
\66 PO'
60'1 C 1360 k),c_
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Nn,�n�K, �41- �Y�JI/€)2&7fl?/i E,,,T,l,��,�,.,. �uc�P�l too
Date:
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.
154, Opposed
No
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: orA144/
Name
Date:
Address (f��/ b.
Phone #s
E-mail address
In Favor
(:XT
Neutral/Undecided /U' Opposed
Submitting written documents as part of testimony?' U 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: ✓ W,JJi'
Name
Date:
Address / 66 C -1N/� 6e, MA ai ;`�
Phone #s et
E-mail address �Q `� f
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:
ilit(Wif\\°"Wr"-(-1
Name
Address �''':
Date:
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In Favor
AA.-e GArcuAk
Neutral/Undecided 1-1/Opposed
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
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BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: --W / S C.,—,4W-ilk.
Name ....(.- v'U
Address c � V o-C,Lu- _ 1 t C1
Phone #s 5-474 41- ' `1
E-mail address ci A .14-P
In Favor
Neutral/Undecided
Opposed
Submitting written documents as part of testimony? Yes No
If so, please give a copy to the Recording Secretary for the record.
c_.2._ C, 4A/A J !�
SUBMIT COMPLETED REQUEST TO
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BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: _ Date:
Name
Address )0
Phone #s .O
E-mail address
In Favor
Neutral/Undecided
Opposed
Submitting written documents as part of testimony? Yes [411No
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
Angie Powers
From: Mary Fleischmann <maryriverwoman@bendcable.com>.
Sent: Monday, January 30, 2023 4:38 PM
To: citizeninput
Subject: Thornburg
Attachments: COBB Thornburg comments -appeal Feb. 2023 (003).pdf
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important
[EXTERNAL EMAIL]
Please accept our written comments regarding the appeal process for Thornburg Resort. Thank You, Mary Fleischmann
FAR
January 30, 2023
Caroline House, Senior Planner
Commissioner Tony DeBone
Commissioner Patti Adair
Commissioner Phil Chang
Subject: Public Comment regarding the appeal for Thornburg Resort
Dear Ms. House, Commissioners DeBone, Adair and Chang,
I am a long time resident of central Oregon as well as the leader of the local chapter of
the Great Old Broads for Wilderness - Central Oregon Bitterbrush Broads. Due to my
advocacy .y work and stewardship J in central I ILI aI Oregon, 1 have .watched iisd the continued
increase of population growth in Deschutes County and the steady decline in our natural
resources including surface and groundwater supplies from over appropriation. Central
Oregon has been in a state of extreme drought for several years. We have not received
a normal snow pack in as' many years which is critical for restoring our groundwater and
aquifers. Because of these concerns Deschutes County must deny Thornburg further
development.
They want you, the commissioners, to make a decision that only the Oregon
Department of Fish and Wildlife as well as BLM is qualified to address since they have
recommended denial of permits due to large natural resource impacts.. We request that
the county order a cease and desist with Thornburg to stop all developments that they
are doing while they continue to appeal decisions being made. The developers of the
proposed destination resort have repeatedly asked for permits since 2004 and now is
the time to stop this endless process:
Mr. Delashmutt believes that because they are willing to reduce water use from 2129
acre feet per year down to 1460 acre feet per year that he has made a reasonable
concession... but a drop of 669 acre feet is continued over appropriation of our precious
central Oregon water resources.
In addition, the resort was approved in 2008, but was never completed in the past 14
years and all permits and plans are now outdated. At this point, in 2023, there are
further considerations with weather and drought conditions which have deteriorated
water supplies since 2008 and climate change will continue to worsen.. The USGS
stated in a 2013 report that there has been a steady decline of groundwater levels from
the mid 1990's to the mid 2000's and especially in the Redmond area, which had
declined by as much as 14 feet in 2008. With the extreme drought conditions and
further ground water pumping in the upper Deschutes basin, ground water levels have
declined even more. Further development using up our groundwater is simply not
acceptable:
The resort's water rights expired in 2018, when they failed to "prove up" the water right
in five years. The Thornburgh developers apparently are spreading misinformation that
is not true. The Oregon Water Resources Department has stated that those water rights
are no longer available to them. Claims by the developer making any kind of
concessions regarding water is ridiculous.
In addition to the water supply issues, the proposed resort will have large impacts on
other natural resources important to central Oregonians. The resort would be
detrimental to the quality of life in the area. Many visitors and residents prefer to
recreate on wild lands and not be surrounded by golf courses and wasteful manmade
lakes. The proposed resort will destroy native wildlife habitat. Wildlife species need
more habitats in desert areas to meet their needs for maintaining healthy populations.
The area is especially important as big game winter range. The project will further
fragment habitat as developments are barriers to wildlife movements critical to meet
their life history needs throughout the year. There will be further impacts to recreation
and loss of areas for hikers, bikers and equestrians. Outdoor recreation away from
developments is important for the mental and physical healing aspects of nature. There.
would be losses of water recreational opportunities due to draw down of water
resources for springs, seeps, riparian areas and native fish species,
The Broads believe that there should be a master plan for land use and managed
population growth in Deschutes County. What is the maximum reasonable water use in
this area, looking ahead 100 years? What are the planned open areas and wildlife
corridors that must remain open for the next 500 years for the health of nature? What
ecosystem services do people count on and how do we manage central Oregon growth
in order to let these services continue to function?
The county's approval of expanding Thornburg is like finding a way around urban
growth boundaries. Land use planning was established to set limits to manage growth
and allow wild landscapes to function as they must for future use and enjoyment and
the health of our region. New developments must be restricted until intelligent plans are
in place and manage for the greater good, not wealthy people looking for a second
home.
The county is already trying to deal with affordable housing for people who live and
work here full-time. We currently have many other destination resorts in central Oregon
and do not need or want any more which impact a large rural landscape popular for use
by the public. The many other resorts we currently have are Sunriver, Black Butte,
Brasada Ranch, Eagle Crest, Mount Bachelor Village, Pronghorn, Seventh Mountain,
Tethrow and Riverhouse on the Deschutes. Again Central Oregon needs affordable
housing and not high -end expensive homes for people who want a second home from
elsewhere. The proposed resort would also have a huge impact on the county's
infrastructure and services such as police, schools and hospitals which are paid for by
local residents.
Thank you for the opportunity to comment on this issue and we hope that the
Commissioners make the right decision and deny Thornburg's appeal.
Sincerely,
wlary Freischmann/electronic signature
Mary Fleischmann, Bitterbrush Broadband chapter leader
Great Old Broads for Wilderness
Angie Powers
From: denise labuda <dmlabuda@gmail.com>
Sent: Monday, January 30, 2023 5:36 PM
To: citizeninput
Subject: Public Hearing: Board Review of Two Appeals of a Modification Request to the
Thornburgh Destination Resort's Fish & Wildlife Management Plan
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[EXTERNAL EMAIL]
Dear County Commissioners,
I am writing today to ask you to say NO to the latest application for the Thornburgh Resort. Please deny the
proposed change to the Fish and Wildlife Management Plan for Thornburgh Resort,
Cheers,
Denise LaBuda
Bend Homeowner
"As you grow older, you will discove
Hepburn
that you have two hands — one for helping yourself, the other for helping others. " - Audrey
Angie Powers
From: Ruby Swanson <riverrubyjoy@gmail.com>
Sent Tuesday; January 31, 2023 7:56 PM
To; Caroline. House; citizeninput
Subject Thornburg/wildlife inventory/water rights
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[EXTERNAL EMAIL]
To ALL the commissioners,
I think it's fair to say that Thornburg is made to be accountable to the wildlife standards and water conservation
issues. Deschutes Co. citizens do not want Thornburg here.
Wildlife are more important to our community. Please support the people and not the developers and their
greed!
Ruby Swanson
riverrubyj oy@gmail.com
541 420 8879
60451 Umatilla Cir.
Bend, OR 97702
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject:
Name
Phone #s
E-mail address
Tv\
"put)
In Favor Neutral/Undecided Oppos d
Submitting written documents as part of testimony? Yes No
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
Subject:
Name
Address
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
�t�fp� 9�tJ
Pe,k)--o 1 /-)s
6-71
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 t e record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: February 1, 2023
SUBJECT: 2022 Annual Report for the Prescribed Fire, Smoke and Public Health
Community Response Plan
RECOMMENDED MOTION:
None; information only.
BACKGROUND AND POLICY IMPLICATIONS:
This report is provided to meet the requirements of OAR 629-048-0180 (3)(f) in order to
maintain the exemption from the one -hour air quality threshold in the Oregon Smoke
Management Plan, granted on December 7, 2019 for the Bend Smoke Sensitive Receptor
Area. This report describes actions taken from the period of December 7, 2021 through
December 31, 2022 regarding the implementation of the Bend Smoke Sensitive Receptor
Area (SSRA) Community Response Plan (CRP).
BUDGET IMPACTS:
None
ATTENDANCE:
Kevin Moriarty, County Forester
Sarah Worthington, Community Health Specialist
2022 ANNUAL REPORT FOR:
CITY OF BEND
PRESCRIBED FIRE, SMOKE, AND PUBLIC HEALTH:
A Community Response Plan for the Bend Smoke Sensitive Receptor Area
Introduction
This report is provided to meet the requirements of OAR 629-048-0180 (3)(f) in order to maintain the
exemption from the one -hour air quality threshold in the Oregon Smoke Management Plan granted on
December 7, 2019 for the Bend Smoke Sensitive Receptor Area. This report describes actions taken from
the period of December 7, 2021 through December 31, 2022 regarding the implementation of the Bend
Smoke Sensitive Receptor Area (SSRA) Community Response Plan (CRP).
Overview of the 2022 Prescribed Fire Year
In the early part of 2022, firefighters conducted pile burning operations. Brief windows of favorable
conditions existed for some small-scale understory burning in late winter. The majority of understory
burning began in April and lasted through mid -May. Near the end of May, the Forest Service took an
agency -wide pause to review prescribed burning procedures. In the fall, persistent dry weather
prevented understory burn operations. Firefighters conducted pile burning ignitions starting near the
end of October and continuing through December.
The following sections (A-D) are intended to address OAR 629-048-0180 (3)(f) (A) - (D) which states:
... SSRAs that have received an exemption must demonstrate they are implementing their community
response plan through an annual report provided by the local health authority detailing:
(A) Compliance with requirements in [629-048-0180)(2);
(8) A summary of methods used to communicate to the public and vulnerable populations;
(C) A log of dates and times the community initiated their response plan;
(D) A record of local meetings to discuss or update the community response plan.
(A) Compliance with Requirements The approved Bend SSRA CRP continues to be relevant and
reflective of the smoke and public health issues in Bend. Implementation of the CRP revolves
around the Central Oregon Fire website and the prescribed fire and health information it
contains, along with other complimentary efforts. The Central Oregon Fire website as described
in the CRP has been maintained and updated with new information throughout the year
covered by this annual report, this includes the blog or newsfeed, interactive maps as well as
prescribed fire and health information.
Smoke and your health campaign
In order to increase community awareness and understanding of how to minimize health risks
presented by wildfire smoke, Deschutes County (DC) entered into a contract with a creative firm
in December 2021. The contract was to develop collateral and strategy for a campaign to
increase educational awareness of what residents can do to protect their health during times of
elevated smoke. Deliverables include: develop a media and educational campaign, make
improvements to the Central Oregon Fire website, and develop print, display, broadcast and
social media ads. The target audience for these materials is the general public, healthcare
providers, Spanish-speaking residents and populations that are more vulnerable to smoke.
Funding for this project was provided through a competitive grant from DEQ.
The campaign materials developed include:
• Updates and changes to the wireframes of the Central Oregon Fire website
• Three PSA's
o Spanish 45s PSA: https://vimeo.com/734849008/b83d3a7298
o English 30s PSA: https://vimeo.com/732081410/486fa4e186
o English 90s PSA: https://vimeo.com/722721789/28d3556c86
• Posters (Spanish and English)
o Protect Your Health (Spanish)
o Monitor Your Health (Spanish)
o Keep Indoor Air Clean (Spanish)
o Be Prepared this Fire Season (Spanish)
• Email outreach campaign
• Social Media posts
The contract has been completed and DC has access to the majority of original materials. Printed
copies of the posters have been delivered and are available to distribute to health care offices,
community settings, and with community partners.
In June and July, Deschutes County Health Services (DCHS) posted several of the graphics from this
campaign to increase awareness of how to be ready for smoke. Social media postings were shared
on Facebook, Instagram, and Twitter. An email marketing campaign was also developed for DCHS
email subscribers that opted in to a 4 message series with additional resources. Ads were placed on
local TV networks as well as Facebook and Instagram. The creative firm reported over 4,000 visits to
the Central Oregon Fire website in the month of July were referred from social media, along with a
total of 55,000 impressions across all channels.
There will be a strategic plan to disseminate these materials in alignment with prescribed fire season
and throughout wildfire season in 2023.
(B) Summary of Communication Methods
The Central Oregon Fire website continues to serve as the centerpiece of the communication
strategy. All partner agencies that request access are granted permission to access to the
website so each agency can post relevant information they wish to make available to the public
(Deschutes National Forest, Bureau of Land Management, Oregon Department of Forestry). The
website is used throughout the year to keep the public and vulnerable populations up to date on
when and where to expect prescribed fire and associated smoke, both through a news feed on
the main page as well as interactive maps that are updated as burns are planned and
implemented. Comprehensive information about smoke and health is now part of this website,
with the videos and graphics referenced previously in the report.
The user data collected for the website is incomplete for the year 2022. We don't any recorded
users from January 1- April 25th. Unfortunately the reason for the data lapse is unknown but
may be partly related to the redesign of the wireframes. The analytics we have for April -
December show a total of 1,169,232 visits from 275,095 users to the website overall. The most
visited pages in order are the home page with 161,204 visits from 47,888 users; the interactive
maps page showing air quality and burning activity reports received 159,649 views by 56,161
users.
We continue to use text alerts to alert subscribers to new activity that will result in visible
smoke, such as high profile understory burns. Currently 15,661 users are subscribed to these
text alerts — an increase of 4,000 from twelve months ago.
Printed rack cards and business cards continue to be distributed to the public through partners
across the community.
In addition to the methods described above, traditional news releases are used to alert the
community to upcoming prescribed fires, particularly when those planned fires are near the
community. Each news release also links to the Central Oregon Fire website if the reader is
looking for more information or wants to view the interactive maps. Sixteen news releases
alerting the public and partners about pending prescribed fires were issued in the previous 12-
month period.
Supplemental posts outlining various phases of prescribed fire operations, including test fire,
ignition progression and completion of ignitions are added to the account for high -visibility
understory burns.
The Central Oregon Fire Info Twitter account (@CentralORFire) has 17,176 followers and is used
to supplement information provided on the Central Oregon Fire Info website. For example, the
public is notified of daily pile burning updates not captured by a press release via Twitter posts.
Links to press releases are posted to the Twitter account. The Twitter feed displays on the
website to provide access to those who are not Twitter users.
During wildfire smoke events, DCHS sends updates on air quality advisories, health/safety
guidance, and local resources including clean air shelter locations (when applicable) on social
media channels.
The smoke and public health collaborative effort that oversees implementation of the CRP also
connects to other partner organizations to increase the reach of information being made
available to the community. There is a growing effort to reach vulnerable populations and non-
English speaking households. The Deschutes Collaborative Forest Project (DCFP) is rebuilding
an active webpage specifically explaining why our forests need fire; DCFP helps to spread word
of upcoming prescribed fire through their information channels including a Facebook page in
addition to their website blog. DCFP has recently added an Outreach Coordinator position as
well as a Project Coordinator. With increased capacity, partnership with DCFP will continue to
support local efforts to increase community resilience to smoke. Oregon Living With Fire (OLWF)
helps ensure that information sharing and opportunities for engagement are happening through
their channels and with partners like local, state and federal agencies, community groups,
Project Wildfire in Deschutes County, the Central Oregon Fire Chiefs Association and Central
Oregon Fire Prevention Cooperative among others.
2022 also saw the distribution of industrial air scrubbers and residential air purification units
throughout Central Oregon, thanks to funding from Senate Bill 762 and the efforts of partners
with OR Department of Human Services (ODHS) and the Oregon Health Authority (OHA).
Multiple partners were engaged in this work to establish clean air shelters at local schools and
libraries, and to provide home units for medically vulnerable individuals. 13 air scrubbers and
750 residential air filters were distributed in Central Oregon. Additional scrubbers are being
stored to support emergent needs for deployment in case of wildfire smoke events.
(C) Initiation of Community Response Plan
It is recognized and acknowledged that 629-048-0180 (3)(f)(C) requires an actual log of dates the
community initiated their response plan. So, even though the CRP is truly a year-round effort
logged, below
dates
without a start or stop time that can be IVggCU, the VCIVVv summary of were when
information was shared with the community related to prescribed fire. In addition, note that
prescribed fire happening throughout the region are summarized, as the strategy in the CRP is
regional in nature even though the SSRA is specific to the City of Bend. Smoke from other areas
not directly adjacent to Bend have the potential impact the Bend SSRA, so burning throughout
the region is summarized below.
Month
Prescribed fire
activity type
Jurisdiction
CentralOregonFire.org
Posts
Deschutes NF
press releases
Number of
text alerts
January,
2022
Pile Burning
Deschutes
NF
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
Total: 2
Total: 2
Total: 0
February,
2022
Understory
Prescribed
Burn
Deschutes
NF
1
1
1
Total: 1
Total: 1
Total: 1
March,
2022
Understory
Prescribed
Burn
Deschutes
NF
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
Total: 2
Total: 2
Total: 0
April, 2022
Understory
Prescribed
Burn
Deschutes
NF
1
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
Total: 4
Total: 4
Total: 1
May, 2022
Understory
Prescribed
Burn /
Interagency
Training
Deschutes
NF
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
1
Wildfire
Awareness
Month
Deschutes
NF
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
1
Understory
Prescribed
Burn
Deschutes
NF
1
1
2
Understory
Prescribed
Burn
Deschutes
NF
1
1
2
Total: 8
Total: 8
Total: 8
June, 2022
0
0
0
July, 2022
0
0
0
August,
2022
0
0
0
September,
2022
0
0
0
October,
2022
Pile Burning
Deschutes
NF
1
1
Pile Burning
Ochoco NF
1
Understory
Prescribed
Burn
BLM
1
Total: 3
Total: 1
Total: 0
November,
2022
Pile Burning
Deschutes
NF
1
1
Pile Burning
Deschutes
NF
1
1
Pile Burning
BLM
1
Pile Burning
BLM
1
Total: 4
Total: 2
Total: 0
December,
2022
Pile Burning
Deschutes
NF
1
1
Total: 1
Total: 1
Total: 0
Year End
Total
Year End Total: 26
Year End Total:
22
Year End
Total: 10
Prescribed burns did not take place in West Bend in 2022; there were no intrusions to report.
(D) Record of Local Meetings Regarding Community Response Plan
The first 2022 meeting of the Smoke and Public Health coordination group was held on April 18tn
The group held a meeting to discuss the upcoming prescribed fire (broadcast burning) season. An
update on the DEQ grant to Deschutes County also provided. The group discussed various ways to
get support from members including new members from Public Health to tailor and inform
messaging and outreach strategies, and to collect any data to illustrate an understanding of known
health impacts related to intrusions in Central Oregon.
Due to the early end to prescribed fire season, the group did not meet mid -summer. The County
Forester left the County in August, and a Fall meeting was not convened during the transition before
a new Forester was hired.
However, additional collaboration, meetings and outreach took place in support of the CRP
deliverables. DCHS staff attended the Wildfire Smoke Coordination calls as they were scheduled
throughout fire season. DC staff work with the DC PIO to ensure messaging was disseminated in
conjunction with smoke advisories on social media. PH staff also delivered educational
presentations about how to protect health during smoke to clinical health partners in the
community. An in -person presentation was offered at the Bend office of the Latino Community
Association with Spanish translation. Topics covered included how to stay safe during smoke events
and how to be prepared for evacuations. These are just two examples of the multiple various means
of outreach that are taking place during smoke and wildfire season in our region.
A series of meetings to discuss the DEQ's 50 acre burn size limit also took place in 2022. Greg
Svelund with Governor Brown's office/DEQ convened the discussions on August 12th, November 3ra
and December 1st. Invited guests and attendees at these meetings included DC County
Commissioner Phil Chang, along with staff/members/representatives from DNF, Oregon DEQ ODF,
DCFP, The Nature Conservancy, DCHS, and the US EPA. These meetings are being convened to
inform a consensus and direction for forest treatments and prescribed burns both planned and
underway in the West Bend tracts. Currently the consensus is to proceed with implementing up to
1,500 acres for prescribed burns in this high priority area in 2023. However, further dialogue will
need to take place as plans are in development.
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: February 1, 2023
SUBJECT: Authorization to apply for a grant from the Patient -Centered Outcomes Research
Institute to address Health Systems Factors and Social Determinants of Maternal
Health
RECOMMENDED MOTION:
Move to authorize staff to apply for a grant from the Patient -Centered Outcomes Research
Institute to address health systems factors and social determinants of maternal health.
BACKGROUND AND POLICY IMPLICATIONS:
Despite decreasing globally, maternal mortality in the United States continues to increase.
Recent data suggest that more than 80 percent of pregnancy -related deaths are
preventable. Severe maternal morbidity, defined as unintended consequences of
pregnancy that result in significant short- or long-term consequences to a women's health,
also continues to increase and affects more than 50,000 women per year in the U.S.
Importantly, significant disparities in maternal outcomes persist for Black, Hispanic,
American Indian/Alaska Native, rural, and low income populations and for people with
disabilities.
The Patient -Centered Outcomes Research Institute (PCORI), an independent, nonprofit
organization which funds patient centered outcomes research, seeks to fund rigorous,
high -quality studies that address the comparative effectiveness of multicomponent,
multilevel interventions to improve maternal outcomes for individuals from populations
highly affected by maternal health disparities. PCORI seeks to fund studies in which
community organizations are full partners in the work, are in study leadership roles, and
are partners in critical decision making alongside research organizations.
Deschutes County Health Services (DCHS) is seeking approval to partner with Oregon
Community Health Information Network (OCHIN), who will be the primary applicant, to
apply for a PCORI Partnering Research and Community Organizations for Novel Health
Equity Research: Addressing Health Systems Factors and Social Determinants of Maternal
Health grant. Additional key partnering organizations include Oregon Health and Science
University (OHSU).
For the project, DCHS would provide dedicated project personnel to provide enhanced
postpartum expansion, and integration of health information technology (HIT) tools to
facilitate care coordination. OCHIN, a Tong -term partner with DCHS for HIT, has a research
division that would be responsible for overall project management and administration.
OHSU would be responsible for community engagement/facilitation, qualitative data
collection and analysis, and provide subject matter expertise on reproductive health, which
includes the perinatal and post-partum.
Outcomes of interest include:
• Timely prenatal care uptake (within first trimester), engaging in postpartum care
(within 6 weeks post -delivery), and metrics around postpartum Emergency
Department visits (within 6 weeks postpartum) ; and
• Incidence of clinically significant maternal morbidity outcomes, such as postpartum
hypertension and hemorrhage, post-partum depression, breastfeeding, family
planning engagement and utilization of other community health resources detected
during routine care within 6 weeks postpartum.
Evidence of the enhanced Perinatal Continuum of Care (PCC) model's effectiveness will
inform PCC and obstetric providers about their efforts to improve maternal health and
mitigate maternal morbidity and mortality, as well as allow transfer of the model to other
rural counties.
The maximum award is $21 million with a grant term of six years; up to one year for the
planning phase and up to five years for the research phase. Earliest project start is March
2024. DCHS would use funding to support 1.0 FTE Public Health Educator II, 1.0 FTE
Specialist,
_l: n 1 FTE S. and n 1 FTE Clinical and Family
Administrative Support �Necianst, U. I FTE C HS Supervisor, U. I FTE � �..Ilili%al raiii�ily
Services Program Manager for the term of the grant. Additionally, funding would cover
training, travel, computer equipment, supplies and 10% indirect costs.
BUDGET IMPACTS:
Approximately $2.5 million revenue.
ATTEN DANCE:
Anne Kilty, Manager, Clinical & Family Services
Janice Garceau, Director, Health Services
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: February 1, 2023
SUBJECT: FY 2023 Q3 Discretionary Grant Review
RECOMMENDED MOTION:
N/A
BACKGROUND AND POLICY IMPLICATIONS:
Each quarter, the Board of Commissioners reviews applications submitted to the
Deschutes County Discretionary Grant Program and makes awards accordingly. On
February 1, 2023, the Board will consider requests made for activities to take place
beginning or about the third quarter of 2022-23.
BUDGET IMPACTS:
Discretionary
isU Ct7Udr„ Grants are made available through the Video Lottery Fund, vvhnich is
supported by state lottery proceeds. Discretionary Grant funds available during the third
quarter were budgeted for FY 2022-23.
ATTENDANCE:
Stephanie Robinson, Administrative Analyst
TES
BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, FEBRUARY 01, 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.
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. Memorandum of Agreement with the Federal Highway Administration for the Chip Seal
of Cascade Lakes Highway - Mt Bachelor to Elk Lake
2. Memorandum of Understanding with Saving Grace: Justice for Families Program
3. Consideration of Board Signature on letters of appointment, reappointment and thanks
for various Special Road Districts
4. Approval of the BOCC meeting minutes for January 11, 2023
ACTION ITEMS
5. 9:05 AM Public Hearing: Board Review of Two Appeals of a Modification Request to
the Thornburgh Destination Resort's Fish & Wildlife Management Plan
6. 10:35 AM Adult Parole & Probation Expansion Project, Skanska USA Building, Inc.
Change Order No. 4—DCSO Wellness Area
7. 10:50 AM 2022 Annual Report for the Prescribed Fire, Smoke and Public Health
Community Response Plan
8. 11:05 AM Approval of the 2022 Title III Certification Form Related to Secure Rural
Schools Funds
9. 11:15 AM Authorization to apply for a grant from the Patient -Centered Outcomes
Research Institute to address Health Systems Factors and Social
Determinants of Maternal Health
10. 11:25 AM FY 2023 Q3 Discretionary Grant Review
February 01, 2023
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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
February 01, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3