We’re going to the Land Use Board of Appeals over Thornburgh Resort
The view from Cline Buttes overlooking the area.
On May 8, Central Oregon LandWatch filed a notice of intent to appeal Deschutes County’s approval of the Fish and Wildlife Mitigation Plan for Thornburgh Resort. We are filing this appeal on behalf of our supporters and stand committed to protecting rural landscapes and wildlife habitat in Deschutes County.
Last year the resort’s developers submitted a new Fish and Wildlife Mitigation Plan (FWMP) for the resort. The Oregon Department of Fish and Wildlife, the Confederated Tribes of Warm Springs, and hundreds of residents have expressed opposition to this new plan because it does not protect fish and wildlife habitat as the law requires.
Low river flows hurt fish habitat, increasing water temperatures to potentially lethal levels and harming the ability for fish to navigate waterways.
What is a Fish and Wildlife Mitigation Plan (FWMP)?
The Deschutes County code, DCC 18.113.070(D), requires that "any negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource.“ A FWMP is the resort’s attempt to comply with this law and demonstrate that there will be no net loss of fish or wildlife resources from groundwater withdrawals by the resort.
One way to mitigate is to provide cool clear water to surface waters to replenish waters lost through groundwater use. In this case, in the proposed new FWMP, the resort failed to demonstrate it has a current, approved, and permanent source of water to mitigate the negative effects of groundwater withdrawals on habitat in the Deschutes River and Whychus Creek.
In the face of strong public opposition, Deschutes County approved the plan last month, with the Board of County Commissioners voting 2-to-1 to approve. Commissioners Tony DeBone and Patti Adair voted to approve, while Commissioner Phil Chang voted against the approval.
However, the approval by Deschutes County is subject to appeal to the Oregon Land Use Board of Appeals (LUBA) and the appellate courts. This is the appeal process LandWatch started yesterday. The Confederated Tribes of the Warm Springs Reservation appealed the County’s decision to LUBA on Friday, May 5th. Annunziata Gould, a neighbor to the resort property, is also anticipated to appeal.
Does the resort have the water it needs?
While recent accounts have indicated the proposed resort plans to fill artificial lakes as early as this summer, the resort currently lacks any approved permits to use water.
Deschutes County: link to materials
Thornburgh Resort currently has no legal access to water to operate a resort. In a recent article from Oregon Public Broadcasting, an Oregon Water Resources Department (OWRD) official said the resort’s developer does not currently have any approved permits to use water.
The original land use approval in 2008 was based on the resort’s demonstration that it had sufficient water available to operate a destination resort with a specific water right permit (G-17036). Through its own inaction, Thornburgh let this water permit expire in 2018.
Thornburgh submitted a request to OWRD to extend the expired permit. However, in July 2022, OWRD issued a Superseding Proposed Final Order denying that request. Thornburgh also submitted a request to OWRD to replace the expired permit and issue a new permit for the same resort water use. OWRD recommended denial of that application as well, writing that "groundwater ... is determined to not be available within the capacity of the resource."
The resort was later granted a temporary transfer for a small amount of water by OWRD (T-13703), but that decision was challenged, and a statutory stay under ORS 536.075(5) is currently in place, precluding any use of that water. Additionally, while the Resort has access to some exempt domestic wells, it cannot lawfully fill a large recreational lake from an exempt well.
Notwithstanding the lack of water to run a faucet, put out a fire, or fill an artificial lake, the resort still claims water right permit G-17036 is a viable portion of a water resources portfolio, calling it “non-canceled.” This is misleading. The fact that OWRD has not canceled the permit yet does not mean water is available. In July 2022, OWRD confirmed that water is not available because the water permit on which the conditional approval of the resort was based has expired, and groundwater is no longer available within the capacity of the resource.
Thornburgh is trying to find new water supply sources to substitute for the expired permit, but so far, none are available for resort use. Given OWRD’s findings that groundwater “is determined to not be available within the capacity of the resource“ and “is not available for the proposed use,“ it is unlikely any of those transfers will be granted.
Thornburgh has been less than candid about its loss of the right to withdraw water for a resort under the permit originally submitted to obtain approval of the destination resort. Moreover, the Resort has provided no proof that it has the necessary approval from OWRD - an approval required by Oregon law - to fill any lakes.
Deschutes County should not have approved the proposed Fish and Wildlife Mitigation Plan when the Resort has been unable to demonstrate it has a current approved and permanent source of water. Furthermore, Deschutes County should not have approved the plan given the insufficient and unreliable data available on the impacts on the Deschutes and Crooked Rivers, neighboring wells, and the region's fish and wildlife.
Confederated Tribes of the Warm Springs Reservation v. Deschutes County
The Confederated Tribes of the Warm Springs Reservation filed its own notice of intent to appeal the County’s approval of the new fish and wildlife management plan last Friday. During the local hearings, representatives from the Confederated Tribes of Warm Springs (CTWS) repeatedly expressed concern to the County Commissioners about both the review process and the substance of the proposed new plan. CTWS objected that the resort’s proposed strategy for the protection of fish and wildlife is both new and technically complex, urging the Board of County Commissioners to allow more time for review.
Austin Smith Jr., the Branch of Natural Resources General Manager of the Confederated Tribes, testified that “the fishery resources at issue are both treaty-protected and vital to the Tribe’s cultural identity and existence.” He urged Deschutes County to take the time “to develop reliable, resilient, and transparent mitigation proposals” that meet the County’s legal standard of no net loss to fish and wildlife.
What comes next?
Thank you to those who have consistently shown up and expressed your opposition at local land use hearings. Written and oral testimony remains in the public record and will be reviewed by the Land Use Board of Appeals.
We anticipate the case will be heard sometime this summer, and we’ll keep you updated.
Together, our voices have not only raised awareness about the potential harm to crucial habitats but have also demonstrated the strength of our community's dedication to preserving the beauty and balance of our rural lands.
Wasim Muklashy
A Watchdog for Central Oregon
At LandWatch, we serve as a watchdog organization and continually monitor development across Central Oregon. When we see something that clearly violates Oregon’s land use policies or environmental laws, we sound the alarm.
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