central land and cattle, llc - deschutes county, oregon...1 central land and cattle, llc november...

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Central Land and Cattle, LLC

November 22, 2017

Hearing Officer Dan Olsen

Deschutes County Community Development

Re: File Nos. 247-17-00761-A, 247-15-000529-A, M-07-2, MA-08-6

Remand of Thornburgh FMP

Dear Hearing Officer Olsen,

This will serve as a final argument by Kameron DeLashmutt on behalf of himself and Central

Land and Cattle Company, LLC. Liz Fancher is providing additional materials to serve as final

argument as well.

I. WHAT THE EVIDENCE SHOWS:

A. The 2008 hearing officer approved Thornburghs mitigation plan even though it showed

impacts under Steady State Conditions of more than; i) .1 degree Centigrade in the

Deschutes River, and; ii) .01 degree Centigrade.

B. Steady State Conditions present a worst case scenario which will only be realized

decades after pumping begins. Newton October 30, 2017 & testimony of Scott Yankey,

October 30, 2017 hearing. Steady State conditions overestimate the short to medium

term impacts. Tetra Tech October, 2017, pg. 2. Once pumping begins, impacts to

streamflow increase very gradually until the aquifer equalizes under Steady State

Conditions. This period of gradual increase is known as Transient Conditions. (Newton

2015 & 2017).

Comments from Gould’s Experts: Gould’s experts do not dispute the applicant’s

contention that Steady State Conditions present the worst case scenario. Gould’s

experts do not dispute that Steady State Conditions overestimate the short to medium

term impacts as noted by Tetra Tech and Yankey. Yinger states that it won’t take

decades for full impacts to be realized yet his own chart on page 6 of his report shows

that it will take roughly 3 decades for that to happen. It will take significantly more

time for impacts to actually occur because the resort development will be phased and

will occur over a long period of time after Thornburgh’s first well begins operation.

Yinger claims the authors of the Newton Report don’t understand steady state

conditions. As will be shown in the following section it’s ridiculous for Yinger to

claim David Newton doesn’t understand Steady State Conditions. David Newton has

issued comments in rebuttal to this claim. (Newton 11/20/17, Rebuttal, pg. 16).

C. Under Transient Conditions while the impacts to streamflow are increasing, the cone of

depression is expanding. After 10 years the cone will have stabilized such that seasonal

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variations are no longer discernible. As a result summertime impacts will peak in year 10

and not be felt thereafter. The 2004 USGS report referenced by the Yinger Strauss report

provides an example at year 10 the impacts felt at the stream are equal to just 58% of the

total impacts.

Comments from Gould’s Experts: Yinger says the percentage of impacts at 10 years

(58%) was specific to a well east of Redmond, 7.5 miles away from Thornburgh, and

because of the distance the wells at Thornburgh wouldn’t necessarily have the same

results. Newton disagrees and issued rebuttal. (Newton 11/20/17, pg. 16). Yinger

provided additional model runs using USGS 2013 that he states resulted in a higher

percentage impact to streamflow at year 10 (approximately 75%). While applicant

disagrees with the results of Yinger’s new modeling for reasons discussed below,

Newton undertook additional mass balance calculations using Yinger’s new results as

is discussed under Yinger below.

D. The volume of Thornburgh’s Whychus Creek mitigation exceeds its usage during the

peak summertime period. Thornburghs mitigation during July, when peak usage occurs,

is approximately 24% of the 106 acre feet of TSID mitigation while the resort’s July

usage is approximately 21% of the annual total.

Comments from Gould’ Experts: Gould’s experts do not dispute any of applicant’s

claims regarding any specifics of usage or mitigation in the peak month of July.

Perreault claims that the mitigation during the irrigation season was not sufficient. In

support of his claim he notes that Yinger’s new impacts are .2 cfs and that our

mitigation is only for .145 cfs. But he then correctly notes that the mitigation is only

deployed during the 6-month irrigation season at the rate of .297 cfs, which is

obviously greater than the .2 cfs impacts claimed by Yinger. While Perreault proves

himself wrong, his argument doesn’t account for the fact that nearly 24% of the

mitigation amount is deployed in the peak month of July while about 21% of the

resorts water usage occurs in July further disputing his claim.

E. Mitigation is equal to 25.19 acre feet in the peak month of July. With pumping of 2,129

acre feet, assuming 100% pumping begins on day 1, the total impacts in July of year 10

would be 11.42 acre feet, which is equal to only 0.54% of the total impacts. Under

Thornburghs phased development plan, the maximum impact to lower Whychus Creek in

July of year 10, is 4.82 acre feet, or 0.22% of total pumping. Assuming 1,356 acre feet of

consumption the impact drops to just 3.32 acre feet or 0.16% of total pumping. (Newton

10/30/17, figure 3b).

Comments from Gould’s Experts: Gould’s experts provided no comments and no

evidence that dealt with the impacts during the period of peak summertime use.

Neither Yinger nor Perreault disputed any of the results for impacts to streamflows

noted above. Yingers only related comments dealt with the impacts from the USGS

2013 model where Yinger claims the impacts were .2 cfs to lower Whychus Creek

from pumping of 2,129 acre feet and .13 cfs from consumption of 1,356 acre feet.

F. The increased thermal mass of Whychus Creek resulting from the additional mitigation

water results in the creek having a lower temperature as it enters lower Whychus Creek.

Newton, Tetra Tech, and Yankey have all provided comments, evidence and testimony

regarding the thermal mass and its cooling effects from the TSID diversion downstream

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to lower Whychus Creek. Substantial evidence from the Upper Deschutes Watershed

Council supports this.

Comments from Gould’s experts: Gould’s experts do not respond to the concept of

thermal mass (law of physics) as it relates to adding more cool water at the TSID

diversion. Yinger and Perreault claim the extra mitigation adds more of this hot

water (or warm) that increases the streams temperature and the inputs to their mass

balance equations treat this as a settled fact. Yinger still refers to the hot water.

Right on the heels of that comment, Yinger states that the primary reason the

temperatures and the resultant impacts in Yinger’s mass balance equations have

dropped so much is because of the increased stream flow that has occurred over the

last 10 years. Perreault refers to, and provides a link to a paper he co-authored while

he worked for the USGS pertaining to the impacts of diversions and streamflow

restoration. Perrault’s report draws conclusions similar to the UDWC that increasing

streamflows will reduce temperatures. Further details are included in the Yinger and

Perreault sections below.

G. Newton ran Mass Balance October 30, 2017: Calculations were completed for numerous

scenarios with 1,356 acre feet of consumption, and both 2,129 acre feet, and 2,355 acre

feet of pumping. All scenarios were calculated with and without mitigation, and

assuming both; 100% pumping on day 1, and usage under the phased development plan.

Newton 2017 used the same format as the mass balance calculations that were done in

Newton 2015. In both Newton used the UDWC flow and temperature data from the 2014

Whychus Creek Monitoring report for flows from 2-200 cfs. Inputs are shown in Newton

2015 with additional details shown on Exhibit A of the Newton memo.

Comments from Gould’s Experts: After 9 years Yinger has finally dropped the 2,355

acre feet computations. This is discussed more under Mark Yinger below. Perrault

urges the hearing officer to disregard all of Newtons mass balance calculations on the

grounds that Newton used as its inputs the data that is included on Figures 5 and 6 of

the Newton 2015 Report. Newton did not use these figures in it mass balance works.

This comment is discussed more in Paragraph H below and in Newton’s prior

submittals in this and the 2015 proceedings.

H. Under all scenarios, Newtons October 2017 report shows that the impacts of the resorts

peak summertime water pumping without mitigation were less than the 0.01 degrees

Centigrade. Under all scenarios, with the added 106 acre feet of TSID water the

temperatures of lower Whychus Creek will be reduced. Results of the resort’s use of

1,356 acre feet and 2,129 acre feet are discussed below:

a. 1356 af of consumption:

i. 100% pumping from day 1 without mitigation the thermal impacts to

lower Whychus Creek will be less than 0.0047 degrees Centigrade.

ii. 100% pumping from day 1 and WITH mitigation the stream

temperature of lower Whychus creek will be reduced by at least 0.02

degrees Centigrade.

iii. With Phased Development but without mitigation the thermal impacts

to lower Whychus Creek will be less than .0014 degrees Centigrade.

iv. With Phased Development and WITH mitigation the stream

temperature of lower Whychus Creek will be reduced by at least .007

degrees Centigrade.

b. 2,129 acre feet of pumping:

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i. 100% pumping from day 1 without mitigation, the thermal impacts to

lower Whychus Creek will be less than 0.0070 degrees Centigrade.

ii. 100% pumping from day 1 and WITH mitigation the stream

temperature of lower Whychus Creek will be reduced by at least 0.007

degrees Centigrade.

iii. With Phased Development but without mitigation the thermal impacts

to lower Whychus Creek will be less than .0031 degrees Centigrade.

iv. With Phased Development and WITH mitigation the stream

temperature of lower Whychus Creek will be reduced by at least .0032

degrees Centigrade.

Newton has completed calculations for all flow volumes between 2-200 cfs at for

each of the three locations, Alder Springs, between Alder and River Mile .62, and

from RM .62 to the mouth. Newton 10/30/17 charts 1a-b, 2a-b, and 3a-b show

those results. On each chart dots indicate a bare minimum flow rate for each

location that is noted as 10 cfs for Alder Springs, 18 cfs below Alder, and 36 cfs

below RM .62. These were calculated as follows: the 10 cfs at Alder took

Yinger’s incoming flow from 2008 of 10.85 cfs that Newton rounded down to 10.

For the incoming flow below Alder 8 cfs for Alder spring was added to the 10 cfs

to account for the Alder Springs flow which resulted in 18 cfs. Another 18 cfs

was added to the RM .62 flows of 18 cfs to result in 36 cfs which is the incoming

flow below RM .62. While this was done to provide a very conservative analysis,

these flow rates are lower than the reasonable amounts given the restoration

efforts that have taken place.

Reflecting improvement in streamflow, Yinger November 12, 2917 cites the

lowest summertime flows into lower Whychus Creek of 27, 34, or 41 cfs. Using

Yinger’s minimum flows into lower Whychus Creek and adding the discharge

rates quoted by Huntington result in minimum incoming flows of 27 cfs @ Alder

Springs, 36 cfs below Alder to RM .62, and 54 cfs below RM .62. These are

substantially greater than minimums assumed in the Newton 10/30/17 report, the

Tetra Tech report of 10/30/17, and the Newton material of October 30, 2015

which showed results for flow rates of 20, 25, 30 and 35 cfs regardless of the

location. This Newton 2015 chart was based on Steady State conditions so the

results are not relevant to this remand. Further the 2015 Newton chart didn’t

account for the added groundwater discharge flows that will occur. The

November 6, 2015 chart shows a slight increase in temperature at the mouth with

mitigation that is offset by the added flows throughout lower Whychus Creek and

the reduction in temperatures at Alder Springs and most of the rest of lower

Whychus Creek. As shown here, a flow rate at the mouth of even 35 cfs is

unlikely to ever occur in the locations charted by Newton 2015.

Comments from Gould’s Experts: Perreault states that the applicant is using .145 cfs

as the impact of the resort when we should have used the updated losses of .2 cfs

based on 2,129 acre feet of water use from Yinger’s new modeling, which was not

shared with the applicant until November 13, 2017. (Perreault pg 6). Yinger and

Dewey make similar comments. Yinger’s work shows an impact of .13 cfs, from the

consumptive use of water but neither Yinger nor Perreault use those results in

predicting stream temperature impacts. Both Perreault and Yinger ran mass balance

calculations using the .2 cfs and .145 cfs figures (2008 results) and determined results

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of their own that Applicant believes are not responsive to the remanded issue and are

flawed as is discussed in the Yinger and Perreault sections below.

Perreault discusses Newton’s Figures 5 and 6 from October 30, 2017. Mr. Perreault

argues that Newton’s entire report should be disregarded because a data identification

error occurred in presenting information about flow data from a stream monitoring

location just upstream from the TSID point of diversion on Whychus Creek. Data on

Figure 6 was mislabeled as being data from Sisters City Park and was then used in

Figure 5 for 2016 and 2017. While this means the trend shown on Figure 5 is not

accurate, it says nothing about the mass balance equation work. As shown on charts

labeled by scenario number 1a-b, 2a-b, 3a-b of the Newton October 30, 2017 report,

and as explained elsewhere, the Newton mass balance work modeled impacts for

flows from 2 to 200 cfs using UDWC temperature data for each of those flows.

Newton did not base its work on the flows reported on Figure 6. Perreault is wrong to

assume differently.

I. Mass balance calculations using Yinger’s numbers.

Following Yinger, Perrault and Dewey claiming that we should have modeled the

impacts based upon the results of Yinger’s modeling of the 2013 USGS report Newton

did so, modeling the impacts for impacts of .2 cfs for 8 different scenarios, all calculating

the peak summertime usage in July in the 10th

year after pumping begins. Results have

been cited from minimum flow rates of 27 cfs at Alders Springs, 36 cfs below Alder

Springs (RM .62) and 54 cfs below RM. 62 (Mouth). The 8 different scenarios include

the following scenarios calculated both with and without mitigation:

4A: Impacts of 1,356 acre feet w/phased development and Newton’s pro-rated

impacts to lower Whychus Creek,

Without Mitigation: The maximum impact for each location under this scenario

is .0022 degrees Centigrade at all flow rates between the minimum flow rates

cited above for each location and 200 cfs.

With Mitigation: With the mitigation Thornburgh will reduce the water

temperature at all flow rates above the minimums up to 200 cfs. The average

reductions are; (.0193dC) at Alder Springs, (.0146dC) at RM .632, and (.0069dC)

at the mouth.

4B: 1,356 acre-feet w/phased Development and Yinger’s 50/50 impacts to lower

Whychus Creek,







at the mouth.

5A: 1,356 acre feet w/pumping of 100% on day 1 and Newton’s prorated impacts to

lower Whychus Creek,




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at the mouth.

5B: 1,356 acre feet w/100% pumping on day 1 and Yinger’s 50/50 allocation to lower

Whychus Creek.






reductions are; (.0164 dC) at Alder Springs, (.0079dC) at RM .632, and (.0031dC)

at the mouth.

6A: Impacts of 2,129 acre feet w/phased development and Newton’s pro-rat impacts

to lower Whychus Creek,







at the mouth.

6B: 2,129 acre-feet w/phased Development and Yinger’s 50/50 impacts to lower

Whychus Creek,






reductions are; (.02dC) at Alder Springs, (.0116dC) at RM .632, and (.0116C) at

the mouth.

7A: 2,129 acre feet w/pumping of 100% on day 1 and Newton’s prorated impacts to

lower Whychus Creek,







at the mouth.

7B: 2,129 acre feet w/100% pumping on day 1 and Yinger’s 50/50 allocation to lower

Whychus Creek.

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at the mouth.

Only one scenario shows an impact greater than .01 degrees Centigrade, and then only for

Alder Springs and RM .62, and without mitigation, and then only for a limited lower flow

rates. Further Scenario 7B is based on usage of 2.129 acre feet with 100% pumping on

day 1, and Yinger’s allocations of 50/50 which applicant strongly disagrees with. This is

a scenario that will not happen and can be disregarded.

With mitigation Thornburghs mitigation reduces the temperature of Whychus Creek

across the board. Even with the use of the Yinger impacts of .2 cfs and .13 cfs

Thornburghs mitigation plans still meet the no net loss standard, particularly when

factoring in the added flows that provide additional benefits to the streamflow.

J. Impacts to Fish Resources (Tetra Tech October 30, 2017):

a. Tetra Tech cites official data from the federal government that says fish are

not impacted by changes under 0.25 degrees Centigrade whereas most of the

temperatures modeled here are 1-2 orders of magnitude greater.

b. Thornburgh’s peak use of water in the summer isn’t likely to result in net loss

or degradation of fish resources in lower Whychus Creek.

c. The 106 acre-feet of increased flow is positive while the reduction in

temperature improves habitat quality.

Comments from Gould’s Experts: Gould presented no expert evidence disputing John

Knutzen’s (Tetra Tech) expert opinion. Mr. Knutzen is a highly experience fish

biologist. The only comment from team Gould are Perreault opinions that aquatic

species look for cold water refugia so they can “ride out the storm.” (Perreault pg. 7).

Perreault is not a fish biologist and offers no evidence of expertise in this area.

Dewey simply states the oft-repeated mantra about “death by a thousand cuts.” This

offers nothing of substance to the no net loss/degradation debate.

II. DEWEY CLAIMS GOULD’S EXPERTS ARE MORE CREDIBLE THAN THE

APPLICANT’S EXPERTS:

In his letter dated November 13, 2017 Mr. Dewey states that reports provided by Mr. Yinger and

Mr. Perreault have consistently provided more credible information and analysis than has been

provided by the applicant’s experts. Mr. Yinger has claimed the authors of the Newton Report

don’t understand Steady State Conditions. Mr. Perreault claims CLCC’s experts don’t

understand the unique hydrology of the Upper Deschutes Basin. For the reasons I will outline

here, these are bold statements that take unique mindsets to make. Thornburgh’s experts in this

FMP remand case (2015 and 2017) encompass more than 150 collective years of experience in

disciplines relevant to this remand, including:

Tetra Tech experts with 55 years of combined experience include: Chris James, Hydrologist and

John Knutzen Fisheries Biologist.

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Mr. Chris James: Mr. James has a Masters in Hydrology from the University of

Washington, and 15 years of Hydrology experience. In 2008 Mr. James coordinated Tetra

Techs work for Thornburgh that included himself, Mr. John Knutzen, Fisheries Biologist,

and Mr. Brian Graham, Hydrologist.

Mr. John Knutzen: Mr. Knutzen, obtained his Masters Degree in Fisheries from the

University of Washington in 1977. He has accumulated 40 plus years of fisheries

experience. In 2017 Mr. Knutzen wrote the Tetra Tech memo with support from Mr. James.

As his resume shows Mr. Knutzen has extensive experience in of evaluation the effects of

development on aquatic resources. Select relevant experience includes:

Stream temperature modeling, temperature monitoring and assessing potential effects,

The research and technical review of reports being developed to evaluate the potential

for reintroduction of anadromous fish in six sub-basins that are to be used to plan

reintroduction and restoration efforts by the Confederated Tribes of Umatilla in those

six sub-basins.

Assessment of historic, current and potential future habitat and passage for salmon,

steelhead, bull trout, and other fish species.

Provided senior review of all fisheries reports and Biological Assessments for a

project that addressed impacts to Endangered Species Act (ESA) listed bull trout and

steelhead.

Lead fisheries biologist for the Bonneville Power Administration evaluating effects of

developing and using small acclimation ponds for juvenile hatchery smolts of

Chinook Salmon and summer steelhead in the 7 locations on the Methow and

Wenatchee Rivers, tributaries to the Columbia River (like the Deschutes River).

Given his extensive experience and highly relevant work history, Mr. Knutzen was the lead

fisheries biologist for the Thornburgh Resort project. In 2008 he assisted Mr. James in the

evaluation of the groundwater model, MODFLOW, and subsequent reporting. He assisted

Mr. James in modeling, evaluating and documenting if changes in flow and temperature in

the Deschutes River associated with Thornburgh pumping and mitigation activities during

the irrigation season and non-irrigation seasons were likely to cause a net loss in either fish

habitat quantity or quality. He provided fisheries related coordination of all documentation,

professional opinions, responses and communications for the evaluation of the groundwater

model and changes in flow and temperature. For the present 2017 remand proceedings Mr.

Knutzen has written the technical report provided by Tetra Tech.

Newton Consultants with 95 years of experience include: Jim Newton, Geologist and Engineer,

Scott Yankey, Geologist, and David Newton, Engineer.

Mr. Jim Newton: Is a Registered Geologist, a Registered Engineer and a Certified Water

Rights Examiner with over 16 years of relevant experience. Mr. Newton worked on the

Thornburgh project in 2008 and again during the 2015 remand proceedings. Jim Newton is

the third generation of Newtons whose focus is on water in the Upper Deschutes River Basin.

Mr. Scott Yankey: Is a Registered Geologist with 30 plus years of professional experience.

Mr. Yankey worked on the 2015 remand proceedings and again in this 2017 proceeding.

Mr. David Newton: Has over 45 years of experience in a broad range of relevant disciplines.

David is a Registered Environmental Engineer (Oregon), a Certified Water Rights Examiner

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(Oregon), a Geological Engineer (Idaho), an Engineering Geologist (Oregon and California),

a Civil Engineer (Oregon and Washington) and a registered Hydro-geologist (Washington).

In addition David served on the Board of Directors of the Upper Deschutes Watershed

Council, the Oregon Water Resources Congress Board of Directors, the Oregon Department

of Fish and Wildlife, Fish Passage Task Force, the Advisory Committee of the National Fish

and Wildlife Foundation where he reviewed funding applications for streamflow restoration

and water conservation projects, and the Chairman of the Fisheries Restoration and Irrigation

Mitigation Act Advisory Committee reviewing funding for fish passage and screen projects

proposed by Irrigation Districts.

In 2000, David was a Participant and led a work group in the Deschutes Ground Water

Steering Committee. David provided technical, geologic and groundwater insight to the

Committee in order for them to understand the hydrologic system for mitigation of ground

water pumping impacts. David compiled the work group findings and prepared the report

“Evaluation of Infrastructure Alternatives in the Middle Deschutes River Basin for

Mitigation of Potential Groundwater Withdrawal Effects on the Deschutes River” dated

August 21, 2000. David subsequently presented the report to the full Committee along with

Marshall Gannett of the USGS and Ken Lite or OWRD, who together are the authors of the

various USGS reports that Yinger, Perreault and Dewey refer to.

In 2004, David managed completion of five water resources planning studies for the

Deschutes Water Alliance that dealt with “Water Resources Planning Studies to Develop a

Framework and Program to Provide Reliable Water Supply for Agriculture, Municipal

Needs and Streamflow for Fish, Wildlife and Water Quality Improvements.” Around that

same time David started consulting for Thornburgh, assisting with a wide variety of water

related tasks. In addition, David grew up in Redmond. His father was in the water supply

business focused on large irrigation and well systems, a business that until recently was run

by David’s brother, Keith.

Mr. Dewey has compared Thornburgh’s experts, listed above, to his who include: Jeff Perreault,

Amy Stuart, and Mark Yinger.

Jeff Perreault: From 1980 to 1998 Perreault was a Programmer and Analyst, First at Pacific

Gas Transmission and then at Bank of America, both in San Francisco. In 1999, he attended

college and in 2003, he received his bachelor’s degree in General Science. In 2004, he began

work at the USGS in Honolulu, Hawaii. His resume states that he was a hydrologist at the

USGS from 2004 – 2012.1 His letter of November 11, 2017 states that he has extensive

experience studying environments and the impacts of diversions, and because of that he

claims to be intimately familiar with situations analogous to the Thornburgh proposal. For

support Perreault directs the reader to his resume.

Any comparison between David Newton and Jeff Perrault highlights how inexperienced

Perreault is. On his resume, Perreault lists a mere 8 years of experience, with none of it in, or

even close to Central Oregon. His only experience, albeit very limited, is confined to the

Pacific islands of Oahu, Maui, American Samoa, and Saipan.

1 It seems doubtful that someone that had just recently graduated from college with only a degree in General

Sciences (not hydrology or geology, etc.) and whose only previous work history was as a programmer would be hired as a hydrologist, much less have the technical expertise to be one. It’s probably safe to assume Perreault was hired, and assumed, at least initially some form of entry level staff position.

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For the 18 years prior to 1999, Perreault was a programmer and analyst. In 1999, he went

back to school. In 2000, at about the time David Newton was leading the work group for the

Deschutes Ground Water Steering Committee and its groundbreaking work to develop an

overall mitigation program that the State of Oregon then adopted and made law, Perreault

was taking his Sophomore prerequisite classes. Perreault graduated in 2003 with a degree in

General Science and began his entry level job with the USGS in 2004. At that time David

Newton was overseeing the series of five wide ranging studies for the Deschutes Water

Alliance, the results of which would form the basis for numerous policy decisions. David

Newton has eight official engineering and geological registrations (listed above). Perreault

lists none.2 David has over 45 years of experience, the vast majority of it on groundwater

related projects in Central Oregon. Perreault has 8 years of experience with none of it in

Central Oregon. To apply a sports analogy to the differences between Newton and Perreault,

as it relates to the Hydrology of the Upper Deschutes Basin, David Newton is Babe Ruth

while Jeff Perreault is starting his second season of T-Ball. David Newton is a legend. Jeff

Perreault still needs the little post as he can’t quite hit a slow pitch yet. That Perreault would

claim David Newton doesn’t understand the unique hydrology of the Upper Deschutes Basin

is astounding.

Even if Perreault was qualified, which we dispute, he certainly isn’t an independent third

party expert. Perreault is a member of the Board of Directors, of Central Oregon Land

Watch, the activist organization founded and led by Paul Dewey. Land Watch is well known

in Central Oregon for its land use activism against a wide range of development targets,

including destination resorts. Mr. Dewey in his letter of November 20, 2017 states that any

appearance of directors of Land Watch is in this case is in their personal capacity. He also

claims that all Land Watch directors have extensive involvement in a variety of conservation

work outside of Land Watch, indicating they are not objective and disinterested

professionals. In other words, they are biased. Perrault’s environmentalist agenda seems to

blind him to facts of this case.

Further, Mr. Dewey’s statement that Perreault is providing comments in his personal capacity

is troubling. Perreault doesn’t have standing in this case in his personal capacity. He was

not on the short list of people in 2015 with standing to provide evidence or testimony on their

own behalf because he didn’t participate in 2008. He isn’t a Registered Geologist nor does

he have any other official registration so he does not have the legal ability to prepare reports

and analysis of geological issues for a private client such as Gould. ORS 672.525 (1) & (7).

He has no experience in Central Oregon and very little relevant experience elsewhere.

The “extensive experience” he cites as analogous to the Thornburgh proposal seems to be

work done on the noted above on Oahu and Maui. Included is a project on Maui in 2008 (the

Maui Project) where he “partnered” with Delwyn Oki to develop a surface water network to

characterize the effects of diversions from native stream and the potential for benefits to

habitat resulting from full or partial restorations of flow. The Maui Project looked at a

number of streams on Maui, and the effects of irrigation diversions on those streams which

flowed from the mountainous areas to the ocean. The results were published by Mr. Oki,

Rueben Wolff and Jeff Perreault in 2010 at http://pubs.usgs.gov/sir/2010/5011 (the Maui

Report).

While Perreault claims this is analogous to the Thornburgh proposal, it should be noted that

Thornburgh isn’t proposing to divert water from any stream for irrigation. In that core

2 Both Newton and Yankey have discussed the fact that Perreault isnt licensed to provide expert advice.

http://pubs.usgs.gov/sir/2010/5011

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respect this study is completely different. On the other hand, there are some similarities

between the Maui Project and the ongoing streamflow restoration efforts of Whychus Creek,

and by extension Thornburgh’s use of the TSID mitigation. For example, the evidence

shows that for many years prior to restoration efforts began in Whychus Creek irrigation

diversions would virtually eliminate the flow of Whychus Creek, during the heaviest

irrigation periods which would leave the creek virtually dry and which eliminated the ability

of migratory species to travel upstream. The applicant has provided evidence showing the

restoration of streamflow in Whychus Creek has had a positive impact that is addressing this

quantity problem. The Maui report speaks to the same issue, that irrigation diversions can

divert up to 100% of the creeks streamflow, stating:

“Maintaining continuous surface flows from the mountains to the ocean in the Na Wai

Eha area may be important for upstream migration of native stream fauna.” (See Maui

Report pg. 74).

In this respect both situations mirror a similar problem; that irrigation diversions reduce

streamflows so that migration is hampered. And both situations reflect that increasing

streamflows by reducing diversions improves the quantity problem. Both Whychus and the

Maui Project experience an issue with stream temperatures. When irrigation diversions

reduce streamflows temperatures rise. At certain temperatures fish in both situations are

negatively impacted.

As to this remand, the applicant has taken the position that by increasing the streamflow of

Whychus Creek via the addition of the TSID mitigation, the stream temperatures will be

reduced as Whychus Creek flows downstream. Extensive evidence supports this contention.

It seems from the Maui Report Perreault co-authored 3concurs with this same assessment

stating:

“Downstream increases in temperature potentially could be reduced if no water is

diverted from the stream. For example, during June 15–20, 2007, photographic data

indicate that water diverted from Waihe‘e River by the Waihe‘e Ditch was returned to

Waihe‘e River about 400 ft downstream of the diversion intakes, and the restored flow

continued past the lowest measurement site near an altitude of 45 ft. During this period,

measured temperatures decreased by about 2–3°C, relative to the period just before the

flow restoration, at sites downstream of where water was returned to Waihe‘e River.”

(See Maui Report Pg. 119).

In sum, the Maui Report concludes that by reducing the diversions and leaving the natural

streamflow in the stream (exactly what is happening with the TSID mitigation water) and

thus increasing the streamflows, temperatures will be reduced by as much as 2-3 degrees

Centigrade. In addition to this Perreault, in his report dated November 11, 2017 states that

“… flows can make a temperature difference …” (See Perreault, November 11, 2017, pg.

15.) It’s clear that Perreault understands that increasing streamflow reduces the temperature

of Whychus Creek but he makes no effort to account for the reduction that will happen in

stream temperature from the addition of the TSID mitigation to Whychus Creek in his mass

balance calculations, as Newton and Yankey have. Nor has he explained why he refuses to

do so. Instead, Perreault (like Yinger) simply ignores the elephant in the room.

3 The authors are listed as Delwyn Oki, Rueben Wolff, and Jeff Perreault.

12

Perreault Mass Balance Calculations Are Flawed And Not Responsive to Issue on

Remand:

Perreault has completed mass balance calculations that are included in his report. Much

is made about doing things the way that Tetra Tech did them in addressing the increased

benefits of mitigation water during the irrigation season and the fact he did them in a

similar way. (Perreault pg. 2). The basic problem with Perreault’s approach is that Tetra

Tech didn’t account for peak summertime use. The hearings officer appears to have

agreed with Tetra Tech’s approach to address impacts of the average daily use of water

(Steady State Conditions), but felt additional mitigation was needed for the peak

summertime use in lower Whychus Creek. As a result, Newton has done extensive

modeling of thermal impacts to lower Whychus Creek directed specifically at the

question on remand. In contrast, Perreault’s mass balance calculations have not

addressed the issue on remand. Specifically, 100% of the calculations that have been

done by Mr. Perreault were done with the following assumptions:

1. Steady State conditions. Perreault’s mass balance calculations use steady state

conditions, with 100% of the impacts being calculated. Those impacts will not

occur until some point decades into the future.

2. Steady State conditions don’t account for the fact that the cone of depression

expands and that seasonal variations that are not felt after 10 years. Further, the

resort’s mitigation plan was approved in 2008 under steady state conditions. This

is an attempt to relitigate a settled issue. The issue is limited to the peak usage.

3. Perreault uses annual figures (sometimes referred to as average daily flow). This

does not account for peak summertime impacts which for the month of July are

only 21% of the annual total. As a result, Perreault’s calculations are not

responsive to the remanded issue.

4. Perreault, like Tetra Tech, split his analysis into the irrigation season and the non-

irrigation season (he concluded there was no impact for the non-irrigation season).

The problem with Perreault’s method is that the 2008 hearings officer approved

the resort’s impacts under the irrigation season, in both the Deschutes River and

Whychus Creek, but was concerned specifically only about the peak usage period

as it relates to Whychus Creek. As a result, this issue is settled.

5. Perreault allocated impacts to Alder Springs in 2 ways, i) he applies 100% of the

impacts to Alder Springs proper, and; ii) he applies 50% of the impacts to the

Alder Springs Reach and 50% to lower Whychus Creek. The evidence doesn’t

support either of these methods. Neither account for the groundwater that is

discharged above Alder Springs proper (the above ground creek), nor does it

account for the fact that Alder Springs proper is only 8.65% of the total and a

larger amount of groundwater enters the creek at or near Alder Springs to

supplement flows from Alder Springs proper.

6. Perreault (and Yinger) both try to provide some support for this lopsided

allocation stating that Alder Springs is at the top of the discharge and as such

would be impacted first. Perreault focuses on 1 (or 2)4 of the 21 cells of lower

Whychus Creek, just those that show “primary” or “significant” impacts on

Whychus Creek, but ignores all the impacts shown in the other 19 cells. As

neither Yinger nor Perreault provide the data, the applicant assumes that it would

clearly call into question the methods they are employing.

4 Yinger focuses on only 1 cell in the 100% allocation and 2 cells in the 50/50. In all cases he ignores the other 19

cells.

13

7. The top of the discharge argument doesn’t account for the fact that the bulk (about

95%) of the impacts occur on the Deschutes River much of which would occur

above Alder Springs. If the top of the discharge argument is valid, they have not

explained why impacts would not occur in the Deschutes River rather than at

Alder Springs.

8. Perreault ran mass balance calculations for impacts of .2 cfs based on the

permitted usage of 2,129 acre feet as well as .145 cfs which was based on the

false assumption of 2,355 acre feet of water use by the resort. Perreault did not

take into account the .13 cfs impact that Yinger claims resulted from the use of

1,356 acre feet.

9. Perreault didn’t factor in the change to impacts based on the phased usage of

water by the resort, a factor clearly related to the issue on remand.

10. Perreault ignores the wealth of data from Newton, Yankey, UDWC as well as that

included in the Maui Report, all of which shows that increasing flow reduces

temperatures. Perreault references the UDWC data yet ignores its conclusions

that for each 1 cfs of increased flow will reduce the temperature by .45 degrees

Centigrade.

In sum, Perreault’s mass balance calculations are not responsive to the issue on remand,

do not limit the analysis to the peak summertime use, attempt to relitigate issues already

settled, and employ flawed methods that overstate the impacts to lower Whychus Creek

of Thornburgh’s pumping. The results of Perreault’s mass balance work should be

disregarded in its entirety.

Ms. Amy Stuart: While Ms. Stuart is not mentioned by Mr. Dewey as one of his experts she

submitted evidence into the record in 2015 that Mr. Dewey has recently resubmitted and

referred to. As such this is being offered to question her credibility as a witness, and to state

that her submittal should be rejected for the reasons below.

A. Ms. Stuart is the Chairman of the Board of Central Oregon Land Watch, and as such she

is not an independent third party. As directors of Landwatch both Stuart and Perreault

have biased agendas portrayed in their submittals.

B. Ms. Stuart, on behalf of ODFW, reviewed and approved Thornburgh’s mitigation

proposal and found that it mitigated all impacts to springs and seeps, including those in

lower Whychus Creek. ODFW continues to state that mitigation is not needed in lower

Whychus Creek.

C. Ms. Stuart claims in her 2015 letter that it was not until after she approved the resort’s

mitigation plan for ODFW in a June 2008 letter finding that DCC 18.113.070(D) and

ODFW impact standards had been satisfied that she was informed by Yinger that

Thornburgh’s mitigation (without the TSID mitigation water) would not mitigate for the

loss of cold groundwater at Alder Springs. Although she feigns complete ignorance,

nothing is further from the truth. The Yinger/Strauss report of December 2007 as

amended by the Yinger /Strauss report of February 2008 made clear that there were

impacts to Whychus Creek. The contents of the Yinger/Strauss report where known to

ODFW and Stuart before Thornburgh even knew of the report. In fact, it was a

December, 2007 letter from Glen Arndt of ODFW to Kameron DeLashmutt that

informed Thornburgh of the existence of the Yinger/Strauss study and the concerns

ODFW had, including concerns about the impacts to Whychus Creek. These are the very

impacts that Ms. Stuart says did not come to the attention of ODFW until after the June

2008 letter. Numerous other emails between various Thornburgh and ODFW parties,

including ones copied to Stuart between December 2007 and mid 2008 reflect the fact

14

that ODFW and Ms. Stuart were fully aware of the Whychus Creek impacts before Ms.

Stuart wrote the June 2008 letter. While ODFW was more focused on the impacts to the

Deschutes River, the solutions that we created solved for the total impacts, those to the

Deschutes and Whychus Creek. Ms. Stuart’s letter of June, 2008 cites the total amount of

the impacts, both to the Deschutes River and Whychus Creek, and goes on to say that

“ODFW has determined that providing the proposed mitigation outlined above should

mitigate for potential impacts on springs and seeps and provide a net benefit to the

resource.”

D. When she wrote the letter as a state employee Mr. Stuart was doing so under ODFW

standards and addressed both DCC and ODFW standards. In her 2015 letter she is under

no ethical requirements and is obviously free to say whatever she thinks will advance her

cause. Her attempts to re-write the facts are self serving to her present activist agenda.

E. Ms. Stuart presents herself as a fish biologist, yet the bulk of the 2015 letter pertains to

geological and hydrology issues, with nothing significant directed towards fish. She

provides no evidence of expertise in hydrology.5

F. Perhaps, because of her lack of expertise, Stuart misstates information about dropping

groundwater and other hydrological issues in her 2015 letter.6

For the reasons listed above Mr. Stuart’s submittal should be disregarded.

Mr. Mark Yinger: Yinger is a Registered Geologist who by his account has 30 years of

experience. While we don’t dispute his experience or technical expertise we believe Yinger

has difficulty accurately portraying facts, or as we will show, a proclivity to make up

“alternate facts”, or “mine data” to achieve the results either he or his client wish to present.

A. Yinger’s Claim of Groundwater Reductions Based on Use of 2,355 acre-feet was

Knowingly False.

Yinger’s use of the undisputed false information that he resort would use 2,355 acre feet

of water in modeling stream impacts is the first indicator of the lack of accuracy and

scientific rigor of Yinger’s calculations and a harbinger of the lack of objectivity

exhibited throughout Yinger’s work.

On page 9 of Yinger’s November 12, 2017 memo he states “further, at the time we used

the USGS model the applicant had applied for a water permit of 2,355 acre feet per year.”

The truth is that Mr. Yinger knew the 2,355 acre-feet was wrong all along. The

Yinger/Strauss report dated February 2008 notes on page 38 that the final water rights

permit was issued to Thornburgh for 2,129 acre-feet. (Rec. 2995). The permit’s final

order was issued on June 22, 2007 many months before the Yinger Strauss report was

done in February 2008. (See the Final Order and Settlement Agreement issued by

OWRD that was sent to Paul Dewey on June 22, 2007, that was filed by CLCC as

rebuttal evidence). It has been shown over and over again in 2008, 2015 and 2017 that

5 Stuart submitted no new evidence in 2017 related to her professed field of fish biology.

6 We believe Stuart provided the information to ODFW staff in 2015, including her 2015 letter in an effort to get

ODFW to retract the positive statements made in both 2008 and October 2015 regarding the resort’s mitigation plans. This effort was successful and Bob Hooten wrote and submitted a letter to County Staff. It is this letter and the subsequent efforts to deal with the concerns ODFW voiced that led CLCC to contact the Director of ODFW. When Mr. Yankey was able to show the ODFW Hydrologist where Ms. Stuart was wrong, Director Curtis Melcher personally wrote the letter refuting the position voiced by Mr. Hooten. Director Melcher once again stated (for the fourth time) that ODFW doesn’t see any need for additional mitigation at Whychus Creek. This process was what Mr. Dewey refers to as politics and is addressed in my submittal of November 20, 2017.

15

Yinger’s use of 2,355 acre-feet was incorrect. Yinger knew the use of 2,355 acre feet

resulted in higher impacts than would occur using the correct volume of water yet he has

presented the results as an accurate measurement of the resort’s impact. Yinger had

numerous opportunities before 2017 to correct his impact calculations downward but did

not do so. It was clear in 2008, that the figure to be modeled should be no higher than

2,129 acre-feet of water – the full amount of water Thornburgh is allowed to pump. In

2009, LUBA held that the amount of water that should be used to set Thornburgh’s

mitigation obligations is the resort’s consumptive use of water, which is 1,356 acre eetf.

This is the number Yinger should have used in any later assessments.

In 2015, the Applicant reduced the .145 cfs, the higher of two numbers Yinger claimed

would the diminished streamflow in lower Whychus Creek (Rec. 2680) to the prorated

amount of .083 cfs to estimate the diminished streamflow of the consumptive use of

1,356 acre-feet. Yinger criticized those efforts saying the Applicant cannot do that and

instead should rerun the USGS model; something that the applicant could not do with any

accuracy as the applicant did not have access to Yinger’s inputs and modifications to the

model.7 Now in this remand Yinger has finally abandoned this false amount of 2,355 cfs

and has run the new model using both 2,129 acre feet and 1,356 acre feet. Yinger’s

current modeling shows that Newton’s pro-rata approach was correct and matches by the

results of Yingers 2017 modeling. The 2,129 acre feet figure is a little over 1.5 times the

1,356 acre feet figure, and the .2 cfs diminished streamflow is a little over 1.5 times the

.13 cfs figure.8 It only took Yinger 9 years to correct this error.

B. Yinger Selects (Creates?) Data to Get the Desired Results.

Mr. Dewey states Yankey accuses Yinger of selecting data to result in the highest

possible impacts. Dewey defends Yinger claiming that Yinger was using the only

available data for the temperature of Whychus Creek at Alder Springs which was from

Watershed Sciences working for Oregon DEQ. Dewey is wrong. Yinger 2008

repeatedly did what Yankey claimed. That one Registered Geologist would voice that

concern of another Registered Geologist speaks volumes. Since there are many examples

of Yinger doing so it’s clear why Yankey, or the rest of us, would think this. A few

examples are listed below.

1. Yinger 2008 Used an Unsupported Stream Temperature of 26.7 degrees Centigrade:

Dewey says that Yinger used the only available data for the temperature of Whychus

Creek just upstream of Alder Springs, which Yinger cites came from the report;

Deschutes River, Whychus Creek, and Tumalo Creek Temperature Modeling, dated

May 8, 2008 (2008 Modeling Report) which Watershed Sciences prepared for Oregon

DEQ (DEQ).

According to Mr. Yankey, the 2008 Modeling Report doesn’t include a reference to

26.7 degrees C. Instead it cites a peak 7 Day Average Maximum temperature of 23

7 In Mr. Yankey’s memo of November 20, 2017 he states that Newton attempted to hire Northwest Land to rerun

the model. Newton felt it best ot use the same company to run the model to determine sensitivity to differing inputs. Prior to agreeing to do so NWL had to contact Yinger. Yinger obviously didn’t want NWL to do so since after speaking to Yinger they refused. We can only assume that Yinger didn’t want Newton to know the inputs he had used in the model. 8 Due to rounding it isnt possible to precisely calculate the percentage difference between the diminished

streamflow results.

16

degrees Centigrade that was collected by DEQ itself on July 28, 2000. The US Forest

Service provided another measurement showing a temperature of 27 degrees in the

same report. (Yankey 11/13/2017). Instead of picking the DEQ data (from the report

prepared for DEQ) he used a number not found in the report he cites. The use of a

26.7 degree figure naturally produced greater impacts than the 23 degree Centigrade

temperature collected by DEQ would yield as Yinger assigned this temperature to all

of the TSID mitigation water as well as to all water entering Whychus Creek at Alder

Springs.

2. Yinger 2008 Claims the Temperature of Alder Springs is 11 dC. Information

regarding Alder Springs temperatures and flows for 2000 is provided by Watershed

Sciences in two documents: (a) the 2008 Modeling Report (Rec. 421 to 509); and (b)

“Aerial Surveys in the Upper Deschutes River Basin Thermal Infrared and Color

Videography” dated July 28, 2000 in a report from Watershed Sciences to Upper

Deschutes Watershed Council, the “WS Temp Report” which we filed as rebuttal

evidence.9 Yinger claims the 11dC comes from the 2008 Modeling Report but like

the 26.7dC discussed above, the 11dC, isn’t included in the 2008 Modeling Report.

The temperature of Alder Springs Proper (the above ground creek) was measured by

Watershed Science as having a temperature of 11.4 dC on August 6, 2000 (in stream

measurement; 2008 Modeling Report) and 13.0 dC on July 28, 2000 (FLIR

measurement), Table 4, p. 13, WS Temp Report. The temperature of the springs that

enter lower Whychus Creek ranged from 13.0 dC to 13.7 dC in July 2000. Table 14,

page 13 WS Temp Report.

Yinger had a choice of what to use in his mass balance calculations. Any of the

actual figures cited, 11.4, 13.1 or 13.7 dC would have lowered the resort’s impacts.

Yinger did not, however use them in his mass balance calculations. Instead he used a

number that is not supported by the data he cites. Yinger claims the 11dC was

“conservatively assumed” to justify its use. It is unclear whether Yinger’s use of the

word “assumed” means the number was made up. What is clear is it allowed Yinger

to project a greater impact by the resort on lower Whychus Creek.

3. Yinger 2008 Uses Lowest Incoming Stream Flow of 10.85 cfs. This data is found in

the 2008 Modeling Report. It was collected on July 26, 2000 and Mr. Dewey says

Yinger used this for consistency. It doesn’t seem to have anything to do with

consistency but instead seems to have been selected to maximize the resort’s alleged

impacts. In the 2015 proceedings evidence was submitted that showed that within a

couple of days of the collection date of July 26, 2000, the Three Sisters Irrigation

District (TSID) returned a substantial volume of water instream to increase flows in

Whychus Creek. If Yinger would have used data from a later date it would have

showed greater flows, which would have resulted in a lower estimate of impacts. The

evidence shows that extensive real time flow data and temperature data is available

both before and after the 2008 proceedings. In 2008, Tetra Tech used 2005 and 2006

data in its mass balance calculations. That data and data for years 2007 and 2008

were available to Yinger at the time of his 2008 submittals.

9 The river mile locations given in these reports are somewhat different than given by Charles Huntington in

comments he provided in 2008. Rec. 2598

17

C. Yinger 2008 (and again in Yinger 2017) Allocated 100% of Impact to Alder Springs

proper.

The 2008 Modeling Report cites the flow of Alder Springs proper (the above ground

spring) as 8.7 cfs which Yinger uses in both Yinger 2008 and 2017. Yinger defines Alder

Springs as the point where a spring flows out of the banks above ground alongside

Whychus Creek and down into the creek. The Watershed Science documents described

above provide the following information that illustrates the unreasonableness of

allocating 100% of flow reductions to Alder Springs proper that contributes just 8.65% of

the groundwater discharge that occurs in Lower Whychus Creek.

1. Alder Springs is a complex of springs. One spring discharges water above ground.

The rest of the springs enter Whychus Creek from the bed or banks of the creek. The

above ground discharge is referred to as “Alder Springs” by Yinger and others. This

tributary had a flow of 8.7 cfs on July 26, 2000. Rec. 433.

2. Inflows of cool groundwater enter on both sides of Whychus Creek at Alder Springs.

Table 4, p. 13, WS Temp Report. Alder Springs is identified by Watershed Sciences

as an area of springs about .1 mile long. Figure 13, page 17, WS Temp Report.

3. Cool groundwater enters Whychus Creek upstream of Alder Springs and a relatively

short distance downstream of Alder Springs. Table 4, p. 13 and Figure 13, page 17,

WS Temp Report. This is what Yinger refers to as the Alder Springs Complex or

Alder Springs Reach in 2017.

4. Alder Springs Proper is not at the head of this complex of springs as claimed by

Yinger and Perreault. The WS Temp Report states that “a series of five spring

inflows were detected between river mile 1.2 and 1.5 (the report places Alder Springs

proper at RM 1.4). Huntington puts the flow of the Alder Springs Complex at 26.5

cfs, which includes Alder Springs Proper.

5. A second set of springs (Figure 14) were detected in lower Whychus Creek below

River Mile 0.5 (the “Lower Spring Complex”) which were not identified on the

USGS 7.5’ Topographic Maps. Huntington reported that the Lower Spring Complex

provides a flow of 74.1 cfs – about 74% of the groundwater recharge that occurs in

lower Whychus Creek. Combined with the 26.5 cfs in the Alder Springs Complex the

total discharge is 100.6 cfs into lower Whychus Creek.

The Yinger Strauss report shows impacts from Thornburgh’s pumping (of 2,355 af) in 5-6

cells of Whychus Creek, one of which includes the Alder Springs Complex. The text of the

report states that groundwater flow reductions modeled in 2008 occur along the length of

lower Whychus Creek. Another area of impact would include the Lower Spring Complex.

Rec. 215, 3062). In spite of these facts Yinger allocates 100% of the impacts to the 8.7 cfs of

flow at Alder Springs proper (8.65% of flow) instead of across the entire 100.6 cfs of

groundwater discharge into lower Whychus Creek. While this allocation is not supported by

the evidence, it increases the impacts from Thornburgh’s pumping by a factor of about 11.5

times (100.6/8.7 = 11.563). Because the applicant’s experts have repeatedly pointed out the

fact that Yinger’s allocation is wrong, in 2017 Yinger has, in addition to allocating all

impacts to Alder Springs proper has analyzed the impacts by allocating 50% of the impacts

to the Alder Springs Complex, and 50% of the impacts to the Lower Springs Complex.

18

Yinger bases his 50/50 allocation on the latest USGS 2013 model that he ran to determine the

impacts from Thornburgh’s pumping. He claims the results of that modeling showed that of

the 21 cells in lower Whychus Creek there were primary impacts in 2 of the 21, that one of

the two was in a cell where Alder Springs is located, and the other cell was located at the

mouth. He doesn’t show the results, as he did in 2008, nor does he define what a primary

impact is, nor whether all or just some of the other 19 cells show impacts, or what the level

of impact was in those remaining 19 cells. He does not explain how he can justify not

factoring any impact from the other 19 cells into his calculations. (See Yankey 2017).

Although this move by Yinger is an improvement over allocating 100% to one single point, it

is still flawed and still likely overstates the impacts at Alder Springs. For the reasons given

here and others cited in their respective reports both Yankey and Newton disagree with

Yinger’s methods and allocations.10

D. Yinger Doubles Down on the Myth TSID Mitigation Increases Stream Temperature.

According to Yinger the mitigation flows increase creek temperatures. (Yinger 2017 pg

7). In the very next statement, Yinger says that the reductions shown in his mass balance

calculations between 2008 and the present “are largely because of increased flow in

Whychus Creek over the past 10 years.” So in one line Yinger says increased flows

increase temperatures and in the next he admits that increasing the flows of Whychus

Creek reduce the temperatures, a position taken by every other qualified expert.11

That

Yinger continues to cling to the thoroughly discredited position that increasing flows

increases temperatures when he admits that the results of the impacts shown in his

balance calculations have been reduced because of those very same “increased flows” is

preposterous.

Yinger 2017 states that the temperature database he used for Whychus Creek monitoring

was acquired from the Upper Deschutes Watershed Council (UDWC). This “database”

was not provided by Yinger nor is it publicly available. In data publicly available from

the UDWC, it provides the expected 7-day moving average maximum stream temperature

for flow rates from 2 cfs to 200 cfs. Newton used the UDWC 2014 data as the source of

their temperature data in both their 2015 and 2017 mass balance calculations. The

UDWC data itself shows beyond doubt that as flows increase temperatures drop. The

Newton rebuttal comments include Exhibit A which is one version of the Newton mass

balance calculations using the results Yingers claims were produced by his use of the

2013 USGS model.

Page 37 of Exhibit A of the Newton rebuttal is attached. The two left columns are from

the UDWC’s 2014 Whychus Creek Monitoring report. They show; i) Flow above Alder

(cfs) Data from FSR 6360 (this is Forest Service Road 6360) and; ii) Stream 7DMAMax

Temp Above Alder Springs. With a flow of 6 cfs the 7DMAMax temperature is 24.4 dC.

This decreases to 21.2dC with a flow of 27 cfs, a reduction of 3.2dC over 21 cfs of flow.

In short, according to the UDWC for every 1 cfs of increased flow the temperature of the

10

Perrault also allocates impact two ways, i) 100% to Alder Springs proper, and; ii) 50% to Alder Springs proper, and 50% to the Lower Whychus Springs Complex which seems to disregard the remaining discharge in the Alder Springs Complex of 17.8 cfs without any explanation why that is justified. 11

The evidence by Newton, Tetra Tech, Yankey, and the Upper Deschutes Watershed Council overwhelmingly support the claim that increasing streamflows reduces temperatures. As discussed above the Maui Report and other statements in the Perreault 2017 report also reflect that increasing streamflows reduce temperatures.

19

creek is reduced by .152 dC. The TSID mitigation adds .297 cfs of flow to Whychus

Creek during the irrigation season, which will cause a reduction of .045dC to the creek’s

temperature according to the UDWC data. This temperature reduction results from the

creek’s increased thermal mass that Tetra Tech, Newton and Farralon have all addressed.

Because of this added thermal mass, the temperature of Whychus Creek, as it enters

lower Whychus Creek is lower with the TSID mitigation than it would be without the

mitigation water.

Newton has incorporated thermal mass and the UDWC 7DMAMax temperature data into

is mass balance calculations, both when it is of benefit to CLCC and when it is not.

While lowering the stream’s thermal mass in lower Whychus Creek has very slight

temperature impacts, adding thermal mass upstream and keeping the stream cooler for a

significant distance lowers the temperature of Whychus Creek at Alder Springs, a point

of the stream where Yinger claims there will be negative impacts and the point where

Gould claims impacts should be analyzed. These are reflected in Newton’s

calculations.12

On the other hand, while Yinger quotes from the UDWC reports and even cites the

UDWC database, he ignores the conclusions shown by the UDWC temperature data. The

UDWC database shows that increasing flows reduces temperatures (.152 dC per cfs).

Instead, Yinger continues to promote his faulty calculations to show a mythical impact,

and makes additional blanket statements not based in truth or science in an effort to

support such myths.

E. Yinger Still Pitches TSID Mitigation as “Hot Water”

On page 2 of his November 12, 2017 memo, Yingers refers to a statement he made in

2008 that claims that replacing the 106 acre feet of water Yinger claimed would be lost in

lower Whychus Creek by reducing upstream irrigation diversions results in more hot

water mixing with the cold water of lower Whychus Creek.” That statement was not true

then and is not true now. Yinger 2017 states that the TSID water is much warmer than

Alder Springs. To support this, Yinger 2017 states the 7 day moving average maximum

temperature of the TSID water was between 18.2 and 19.6 dC between July 23, 2016 and

August 2, 2016 as taken at station 1407500, located just above the TSID diversion.

Yinger cites Mork 2016, which is the 2016 report for the Upper Deschutes Watershed

Council. It should be noted that UDWC obtains flow data from the OWRD real time

hydrograph.

On the dates Yinger cites, the daily mean stream temperature provided by the OWRD

real time hydrograph data ranged from 9.7 to 12.3 d C. (Yankey Memo, November 20,

2017, pg 4, and tables 1 and 2). On October 30, 2017 Newton submitted Figure 6 which

listed stream flows and temperatures for July 2016 and July 2017 that was directly

responsive to the “hot water” claims which was addressed at the hearing.13

Figure 6 was

12

Newtons calculations show that the TSID mitigation water lowers the streams temperatures throughout lower Whychus Creek. 13

Jeff Perrault has noted this Figure 6 and Figure 5 are labeled Sisters City Park. Figure 6 should have been labeled

Station 14075000 which is located just above the TSID diversion. Perreault has stated that Newton shouldn’t have

used the data in the mass balance calculations. Perrault is mistaken. This information was not used in Newtons

mass balance equations. It was included simply to show that the TSID mitigation is not hot water. Newton used the

UDWC temperature and flow data in its mass balance calculations. See discussion in Perreault section above and in

Newton’s November 20, 2017 memo.

20

mislabeled as providing information for the temperature of Whychus Creek at Sisters

City Park. Instead, the figure shows temperatures just above the TSID diversion. This

data shows that the average temperature of Whychus Creek, just above the TSID

diversion had an average temperature of 12.5 dC for the month of July 2016, and an

average temperature of 9.4dC for the month of July 2017. These temperatures are

actually equivalent to or lower than the discharge range of Alder Springs of 11.4 to 13.1

degrees Centigrade provided by Watershed Sciences. (Yankey 11/20/17). In spite of the

evidence, Yinger claims the TSID water is 7.2 to 8.6 degrees Centigrade warmer than

Alder Springs on those dates. Yinger’s claims are not true.

F. Yinger Downplays His Own Admission That Seasonal Variations End at 10 Years.

Yinger November 12, 2017, pg 4 with additional comments on pgs 8 & 9.

In 2015, CLCC cited the Yinger/Strauss report that discussed and relied on a USGS

report that modeled well impacts. On page 38 of that report it states: “The results of the

steady state and transient simulations are compared in the USGS report (Gannett and

Lite, 2004).” It then goes on to state that: “After 10 years, 58% comes from diminished

streamflow, and after 42 years, 90% is from diminished streamflow. After about 10 years

the cone of depression will have stabilized even if pumping is greater in the summer and

less in the winter.” Those statements accurately reflected the USGS conclusions that

while impacts gradually increase after pumping begins, after only about 10 years the cone

of depression equalizes such that there are no more seasonal variations. Newton argued it

and LUBA noted it in their 2016 remand. In 2017, Newton prepared extensive mass

balance calculations and other analysis of the impacts of Thornburghs pumping using the

USGS conclusions noted by Yinger. When this limit to seasonal variations is accurately

portrayed, it logically resulted in lower impacts than Yinger had calculated.14

Yinger admits the USGS presented this data, and while he doesn’t retract or modify his

statement he attempts to qualify the statements. He questions the time that it would take

the cone to equalize and the seasonal variations to no longer be discernible. To do so

Yinger says that the results the USGS obtained in those simulations don’t mean that the

Thornburgh wells would experience the same results. Yinger notes that the USGS

simulations were for a well on the eastern edge of Redmond, 7.5 miles from Thornburgh.

Yinger states that we cannot use a well 7.5 miles away as an indicator of the results that

we would get, because to do so would be to “ignore the fact that the simulations are

definitively spatially specific”. (See Yinger 11/12/17 pg 9). Yinger doesn’t offer any

evidence, however, that Thornburgh would not experience the same results, nor does he

state how long it would be until seasonal variations would no longer be discernible. All

he states is that Newton cannot use these wells as the indicator.

Newton in his November 20, 2017 memo, pg 18, responds to this. Newton says the

USGS ran simulations for two wells. One well is located where Yinger cites in eastern

Redmond (7.5 miles to the east of Thornburgh) and the other in Bend (somewhere 8-10

miles to the south east of Thornburgh). Each simulation was done assuming a shallow

layer 2 well and a deep layer 7 well. Newton states that in each of the simulations the

USGS obtained similar results, with about 58% of pumping coming from diminished

streamflow after 10 years for the deep layer wells and 57% for the shallow layer wells.

14

The Newton report and Yankey comments both written and oral state that the steady state conditions reflect the worst case scenario. As was explained in Newton 2017, Yankey 2017 and at the hearing the transient conditions will always show less impact, even during the peak period of use.

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In both examples, after about 10 years the cone of depression had stabilized and no

seasonal variations were felt. Newton recognized a relationship between these two wells

in different locations using different layers, ie: spatially diverse. That while in different

locations, they were exhibiting similar results. This led Newton to conclude that it was

reasonable to expect the Thornburgh wells to have similar results.

Yinger (11/12/17) states that the results of his new modeling show that 90% of pumping

comes from streamflow in just 16 years after pumping begins at the permitted rate15

versus 42 years in the earlier USGS simulations. Yinger references a chart he says shows

that variations are occurring after 10 years. Yinger is implying the “variations” in the

chart, located on page 6 of the Yinger 11/12/17 report, are seasonal variations that

continue after 10 years, this chart doesn’t have anything to do with seasonal variations. It

simply charts the gradual increase in impacts to streamflow from a constant year round

pumping rate of 2.94 cfs. As discussed in the proceeding paragraphs, under the USGS

simulations seasonal variations were no longer felt at about the same time that 58% of the

impacts were coming from diminished streamflow. If it was assumed that seasonal

variations ended at that same 58% point under Yingers new 2017 model that would mean

that seasonal variations would no longer be discernible at just under 6 years according to

Yingers Chart on pg 6, which is summarized on Newton’s rebuttal memo, page 11, which

is attached. Note that in year 6 the percent of impacts from streamflow is 60%.

In conclusion, Newton has drawn a relationship between wells in diverse locations, 7-10

miles away from Thornburgh that are exhibiting similar results. From that Newton has

concluded that it is reasonable to expect the same type of result from the Thornburgh

wells. In the alternative, if you were to assume the results under the new Yinger model

there is no evidence to show that the time at which seasonal variations would exceed 10

years, and some indication that it would be less. In any case Newton’s conclusions are

certainly reasonable and likely conservative.

G. Yinger Provides No Support for The Results from His Modeling the 2013 USGS Report.

The MODFLOW program (USGS 2013) requires extensive adjustments to the inputs in

order to calibrate the system for a specific application like the Thornburgh pumping. As

has been noted before Yinger has not provided specifics on how the program was set up

in 2008. The only input that Yinger has provided regarding how the USGS 2013

modeling was done is that it assumed that Thornburgh would be pumping a constant 2.94

cfs year round, beginning day 1 and continuing forever. It is undisputed that is a false

assumption. The resort will not start pumping at 100% on day 1, and even when

Thornburgh does achieve pumping of 2.94 cfs it won’t do it continuous year round. That

defies the entire basis for this remand. Yinger has offered no explanation how the

impacts would differ if was to accurately reflect pumping levels over time. Applicants

experts don’t know what other inputs have been used, or the accuracy of those inputs.

In 2015 Newton attempted to hire Northwest Land and Water (NLW) who had done the

2008 adjustments for Yinger to rerun the model for applicant. NLW after contacting

Yinger declined that request. We assume this occurred because Yinger didn’t want the

applicant to know the inputs he used in the 2008 modeling work. Based on the Yinger’s

extensive history of selecting and using unsubstantiated data to drive the desired results

15

This assumes that if the resort was to start pumping 100% of its permitted volume on day 1 then 16 years later 90% of the impacts would be coming from diminished streamflow.

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in Yingers mass balance calculations we would expect Yinger would do similar data

selection or creation to drive the results of the impacts shown from the 2017 modeling.

As such we question the accuracy and authenticity of all any results that Yinger reports in

this modeling.

H. Yinger’s 2017 Mass Balance Calculations are Flawed and Not Responsive to Issue on

Remand.

As noted above we question the results that Yinger obtained from the USGS Modeling

and if those results are wrong then it follows that Yingers mass balance calculations

would have to be wrong as well.16

In addition to core premise of the amount of impacts,

there are numerous flaws in the Yinger mass balance calculations, many that are similar

to the errors shown by Perreault’s work as well. The 2017 Yinger mass balance was

done under the following assumptions:

1. Steady State conditions. Yinger’s mass balance calculations use steady state

conditions, with 100% of the impacts being calculated for once those impacts are

reached at some point decades into the future.

2. Steady State conditions don’t account for the fact that the cone of depression expands

and that seasonal variations that are not felt after 10 years. Further the resorts

mitigation plan was approved in 2008 under steady state conditions. This is an

attempt to relitigate a settled issue. The issue is limited to the peak usage.

3. Yinger uses annual figures (sometimes referred to as average daily flow), which don’t

account for any peak summertime impacts, which for the month of July is 21% of the

annual total. As a result Yinger’s calculations are not responsive to the remanded

issue.

4. Yinger like Perreault allocated impacts to Alder Springs in 2 ways, i) he applies

100% of the impacts to Alder Springs proper, and; ii) he applies 50% of the impacts

to the Alder Springs Reach and 50% to lower Alder Springs. The evidence doesn’t

support either of these methods. Neither account for the groundwater that is

discharged above Alder Springs proper, nor does it properly allocate based on the

prorated amounts, whereby Alder Springs is only 8.65% of the total.

5. As stated above both Perreault and Yinger try to provide some support for this

lopsided allocation stating that Alder at the top of the discharge and as such would be

impacted first. Yinger focuses on 1 (or 2)17

of the 21 cells of lower Whychus Creek,

just those that show “primary” or “significant” impacts on Whychus Creek, but

ignores all the impacts shown in the other 19 cells. As neither Yinger nor Perreault

provide the data, the applicant assumes that it would clearly call into question the

methods they are employing.

6. The top of the discharge argument for Alder Springs doesn’t account for the fact that

the bulk (about 95%) of the impacts occur on the Deschutes River much of which

would occur above Alder Springs. If the top of the discharge argument is valid they

have explained why all that impact they imply would hit Alder Springs wouldn’t all

occur in the nearby Deschutes River.

16

Another example of Yinger’s proclivity to adjust data for his purposes, in his 2008 mass balance equations Yinger used impact of .15 cfs instead of the .143-.145 cfs he noted in the report at page 1186 of the 2015 record. While this may not be on the same level as some of the major issues noted it is yet another example Yinger skewing data to get results he desires. 17

Yinger focuses on only 1 cell in the 100% allocation and 2 cells in the 50/50. In all cases he ignores the other 19 cells.

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7. Yinger ran mass balance calculations for impacts of .2 cfs which is based on the

permitted usage of 2,129 acre feet as well as the .145 cfs which was based on the

false assumption of 2,355 acre feet. Perreault did not take into account the .13 cfs

impact that Yinger claims resulted from the use of 1,356 acre feet.

8. Yinger didn’t factor in the change to impacts based on the phased usage as it related

to the issue on remand.

9. Yinger ignores the wealth of data from Newton, Yankey, UDWC, as well as that

included in the Maui Report, and his own admission that his thermal impacts were

reduced between 2008 and 2017 because of the increased streamflows, all of which

shows that increasing flow reduces temperatures.

10. Yinger references the UDWC data yet ignores its conclusions that for each 1 cfs of

increased flow will reduce the temperature by .152 degrees Centigrade.

Yingers results are not responsive, attempt to relitigate issues already settled, and use

flawed methods. For these reasons his mass balance calculations should be disregarded

completely. That said, it is ironic that the results of his calculations, under the “without

mitigation flow” when averaged are .0075 degrees Centigrade, which is below the .01

degrees Centigrade that was approved in Whychus Creek and way below the .1 degrees

Centigrade that was approved in the Deschutes River. Yingers results, even as flawed as

they are still show that Thornburgh’s impacts will be far less than the “extremely minor

amount” as noted by LUBA.

I. Yinger Claims Long Term Pumping Impact Are Greater Than Modeled.

Here Yinger dumps all the issues that he can onto Thornburghs responsibility, whether

they are real issues or not. He swings from piping to decreased recharge to canal leakage.

As applicants consultants have pointed out, many of the claims made by Yinger and

Perreault on these issues are false. Yankey memo of November 20, 2017, page 8,

addresses this.

For example the dropping groundwater issue was raised directly with ODFW and after

Yankey provided information they agreed with applicant that there was no issue, and

offered a letter from the Director stating that no additional mitigation was needed for

Whychus Creek. This last catch all by Yinger is an attempt to try to get Thornburgh to

take responsibility for climate change, piping, and any other ill that may arise. It is

outside of the scope of the remand, and attempts to relitigate issues already settled.

J. Who is Qualified to Present Evidence.

Yinger claims I presented hydrological evidence in my letter of November 13 as well as

the testimony I presented at the hearing. My letter dealt with math more than it did

hydrology. The mass balance equation is fairly simple math. I simply used the equation

cited in the Yankey memo to show results using a change in just 1 variables, going from

26.7 degrees Centigrade 22 degrees Centigrade which Dewey stated was the max

temperature in 2014 (as I recall). The testimony I presented was to put forth the results of

the Newton and Tetra Tech reports that were submitted at the time of the testimony. Also

as you recall Mssrs. Newton and Yanke were at the table alongside me and were asked to

correct any statement that I made that did not accurately represent their work.

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III. CONCLUSIONS

Central Land and Cattle Company believes they have clearly shown that the mitigation plan they

are providing meet the no net loss standard and would urge the hearings officer to approve the

Final Master Plan remand.

Sincerely,

central land and cattle, llc - deschutes county, oregon...1 central land and cattle, llc november...

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