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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,
Without Mitigation: The maximum impact for each location under this scenario
is .0042 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; (.0181dC) at Alder Springs, (.0131dC) at RM .632, and (.0067dC)
at the mouth.
5A: 1,356 acre feet w/pumping of 100% on day 1 and Newton’s prorated impacts to
lower Whychus Creek,
Without Mitigation: The maximum impact for each location under this scenario
is .0049 degrees Centigrade at all flow rates between the minimum flow rates
cited above for each location and 200 cfs.
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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; (.0195dC) at Alder Springs, (.0108dC) at RM .632, and (.0037dC)
at the mouth.
5B: 1,356 acre feet w/100% pumping on day 1 and Yinger’s 50/50 allocation to lower
Whychus Creek.
Without Mitigation: The maximum impact for each location under this scenario
is .0094 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; (.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,
Without Mitigation: The maximum impact for each location under this scenario
is .0031 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; (.0214dC) at Alder Springs, (.0138dC) at RM .632, and (.0062dC)
at the mouth.
6B: 2,129 acre-feet w/phased Development and Yinger’s 50/50 impacts to lower
Whychus Creek,
Without Mitigation: The maximum impact for each location under this scenario
is .0060 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; (.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,
Without Mitigation: The maximum impact for each location under this scenario
is .0069 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; (.0181dC) at Alder Springs, (.0097dC) at RM .632, and (.0031dC)
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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Without Mitigation: The maximum impact for each location under this scenario
is .0136 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; (.0134dC) at Alder Springs, (.0035dC) at RM .632, and (.002dC)
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.
11
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.
21
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.
22
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.
23
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,