Electronic Public Comments

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Name	Company	Comment
Lisa Brown	WaterWatch of Oregon	Dear Mr. Pierceall: On behalf of WaterWatch of Oregon (“WaterWatch”), please accept the following comments on the amended application for an extension of time for Permit G-16305 (received by OWRD on April 25, 2018). Background On May 1, 2018, the Oregon Water Resources Department (OWRD) published in its Public Notice of Water Use Requests its receipt of a new extension application for Permit G-16305 (App. G-16776) received by OWRD on April 25, 2018 (amended extension application). The applicant, 3 S Ranches, filed its initial complete application for this water right on January 5, 2007. OWRD issued a permit for the use on April 3, 2008, providing for a complete application of water to beneficial use by October 1, 2012. On July 25, 2014, OWRD issued its first extension on the right, extending the deadline for construction from October 1, 2012 to October 1, 2017. On December 26, 2017, the applicant filed an application for a second extension, requesting an additional five years to complete construction. On February 1, 2018, WaterWatch submitted timely comments on the extension application. On February 20, 2018, OWRD issued a proposed final order proposing to deny the extension with protests due April 6, 2018. OWRD did not receive any protests but on April 4, 2018, received a request from applicant’s attorney to withdraw the December 26, 2017 extension application and on April 13, 2018, OWRD issued an “Order Withdrawing Application for Extension of Time for Permit G-16305, Water Right Application G-16776, in the Name of Travis Singhose.” These comments pertain to the amended extension application submitted by applicant’s attorneys, which was received by OWRD April 25, 2018 and included in the OWRD Public Notice on May 1, 2018. The permit’s place of use is in a part of the Greater Harney Valley Groundwater Areas of Concern referred to as Weaver Springs in which the state has documented extensive groundwater level declines due to irrigation pumping. (This is likely why applicant has deepened Wells 1, 2 and 3). Comments Water rights holders must pursue construction and development of groundwater rights with “reasonable diligence” over a period not to exceed five years of the application date. ORS 537.630(1). OWRD may allow extensions for “good cause,” (id.; OAR 690-315-0040), but only for the “reasonable time necessary to complete water development or apply all the water to beneficial use.” OAR 690-315-0050(4). WaterWatch has reviewed the amended extension application and related materials, and has the same concerns about the extension that were identified in our comments on the December 26, 2017 extension application. 1. Because the amended extension application suffers from most of the same defects as the previous application, WaterWatch incorporates its February 1, 2018 comments on the latter as if fully set forth herein. 2. The facts and circumstances cited in OWRD’s February 20, 2018 proposed final order to deny the permit extension still exist. No information cited in the amended extension application, or actions taken by the applicant since the the proposed final order was issued, remedy these problems. 3. No beneficial use has occurred under this permit because permit conditions were not complied with during the original development period or during the last extension period which ended October 1, 2017. The proposed final order for the first extension found that the applicant had not complied with permit conditions and stated that: “Failure to comply with permit conditions constitutes illegal use of water. Beneficial use of water under this permit, therefore, has not yet been demonstrated. In order to legally perfect the use of water under this permit, the permit holder must demonstrate that all conditions of the permit have been satisfied.” PFO, p. 4 (May 13, 2014). OWRD granted an extension until October 1, 2017, generously allowing applicant to remedy these and other problems. Applicant did not do so. For example, the amended extension application states that applicant did not comply with the permit condition requiring installation of flowmeters on any of the wells until March 26, 2018. (Pages 5 and 8). While it is certainly progress that flowmeters have finally been installed, because this condition (among others) was not satisfied during the allowed development period of the permit, which ended October 1, 2017, no beneficial use has yet to occur on the permit. 4. Applicant’s claim that flowmeters were not installed due to financial hardships is unconvincing. (Amended extension application, p. 5). Flowmeter installation on the four wells cost $6,700, while applicant states he otherwise spent $699,000 on development of the permit ($637,000 by 2012; and an additional $62,000 during the first extension period after being informed by OWRD that failure to comply with this and other permit conditions constituted illegal use). (Amended extension application, pp. 7-8). In other words, the $6,700 that applicant spent in March, 2018 to comply with the flowmeter installation permit condition is less than 1% of the $699,000 that applicant claims he had previously spent on permit development. The claim that failure to install flowmeters was due to financial hardship is not supported by the record. 5. It appears that what has happened is that applicant has drilled wells in locations where wells have not been permitted and now claims that those wells should somehow be considered part of the development of this permit, which would be unlawful. This is demonstrated by comparing the permit map with the “Map of Actual Well Locations” submitted with the amended extension application which shows that the actual location of what applicant calls “Well 2” has been drilled a little more than 1/2 of a mile to the west of the permitted location (but see also (6) below regarding Well 2). The map comparison also shows that the actual location of what applicant calls “Well 3” has been drilled approximately 3/8 of a mile southwest of the permitted location. Additionally, Well 4 is not permitted at all as the permit was only for three wells. (Well 1 appears to be slightly in the wrong location but perhaps that is simply a mapping issue). Drilling wells in unpermitted locations is unlawful and should not be rewarded by the department through the granting of a permit extension that the applicant itself states would be for the purpose of trying to amend the permit to validate these illegal wells. 6. The department must require that some reasonable level of coherent information be provided regarding permit development when considering extending permit development timelines—the extension application record for this permit fails to meet any reasonable standard due to the conflicting and inconsistent information provided. For example, the proposed final order for the first extension (May 13, 2014) states that the additional work included drilling Well 3 (page 3) and, additionally, the original extension application for the second extension also stated that Well 3 had not been drilled. (Page 8). However, the amended extension application now states Well 3 was drilled on October 11, 2017, before the permit was issued. (Page 7). Other discrepancies, including pertaining to costs, are discussed in WaterWatch’s February 1, 2018 letter. This type of conflicting information should be rejected by OWRD and does not support issuance of an extension. 7. Any development related to “Well 2” cannot be counted as development under this permit for at least the following reasons: a) Location—as noted above, the actual Well 2 location is more than 1/2 of a mile away from the Well 2 allowed under this permit; b) The department’s approval of T-11671, Final Order Approving Change in Point of Appropriation (July 31, 2014), which made the actual drilled Well 2 location identified in the extension application part of the water right
Lisa Brown	WaterWatch of Oregon	p. 3 (May 13, 2014) (later adopted and incorporated into the Final Order dated July 25, 2014). Nothing has been done towards this remaining work since the 2014 extension was issued. According to the applicant’s most recent extension application, this same work is still unfinished and apparently has not even been initiated since the last extension was issued in 2014. In Chart-D, the applicant lists the “Well 3” identified on the Permit as undrilled. Extension Application for Permit G-16305, p. 8. In other words, although the applicant has not listed drilling Well 3 as a construction activity yet to be completed, see id. at p. 9, the materials show the applicant has the same amount of work unfinished now as at the time of the first permit extension. That is not reasonable diligence. Indeed, Chart-C shows that the only work this applicant completed since OWRD granted the first extension was submitting two water reports in 2014, not drilling the third well or installing other works. Id. at p. 6. Therefore, the applicant has not completed any of the construction remaining since the last extension was granted, and has not made any financial investments during the previous extension period (OAR 690-315-0040(3)(d)), while also failing to comply with important conditions. 4. OWRD cannot find good cause to approve the extension because development of the remaining portion of the permit is not within the capacity of the resource. The Department’s “good cause” determination must consider the market and present demands for the water to be supplied. OAR 690-315-0040(2)(d),(e). This analysis must acknowledge special use designations and “other factors relevant to the determination of the market and present demand” for water. OAR 690-315-0040(4)(b),(f). The place of use and point of appropriation for this permit is in the Greater Harney Valley Groundwater Area of Concern, where groundwater levels are declining. Further development of groundwater under this permit will only worsen this problem. The Weaver Springs area is over-appropriated, and OWRD should deny this extension application because increased water use under Permit G-16305 is not within the capacity of the resource. 5. The applicant has not worked in “good faith” because, as discussed above, the applicant has not reported any financial investments or construction undertaken in the previous extension period, has continued to use water contrary to the permit conditions (which constitutes illegal use and is not beneficial use of the water), and has not made any use of water from the authorized third well. OAR 690-315-0040(2)(c). Further, the 2014 water use report indicates that water has been used in excess of the duty allowed in the permit. Permit G-16305 limits the applicant to 3.0 acre-feet of water for each acre irrigated, and provides the place of use as 350 acres. Permit G-16305, p. 1. However, the only water reports OWRD has received from the applicant list a total water usage under the permit in 2014 as 2,121.22 acre-feet from Wells 1 and 2. See Report ID 62682; Report ID 62683. This amounts to over 6 acre-feet per acre on 350 acres in 2014, and an even higher duty if one uses the 270-acre place of use for 2014 as reported in Section 9 of the extension application. Application of greater than 3.0 acre-feet per acre is illegal use. Perhaps adding to the confusion, the various permit materials and water use reports attribute different log numbers to Well 1 under the permit. According to Water Use Report 62682, Water Use Report 62683, and the PFO on the first extension application, Well 1 is Log Number HARN 51821, and Well 2 is HARN 51847. See PFO on Application for an Extension of Time for Permit G-16305, p. 4. However, the most recent application for an extension lists Well 1 as Log Number HARN 51339, and Well 2 as HARN 51847, while naming HARN 51821 as a “Well 4” that is not authorized under this permit. Extension Application, p. 8. OWRD needs to know which wells are being used under this permit, hold the applicant to those points of appropriation, and may only consider development of lawfully permitted wells as development pertaining to this extension application. The different costs reported and estimated in the materials for Permit G-16350 also do not add up. The PFO on the applicant’s first extension application noted that, as of March 14, 2013, the permit holder had invested about $130,000 to complete development and estimated an additional $82,000 in costs. PFO on Application for an Extension of Time for Permit G-16305, p. 4-5 (May 13, 2014) (adopted and incorporated into OWRD’s subsequent Final Order). And yet, Chart-B in the most recent application for an extension reports $550,000 in total costs up to October 1, 2012. Extension Application, p. 6. Having reviewed the applicant’s reported costs, we cannot account for the $420,000 discrepancy in the applicant’s reported costs prior to the original October 2012 completion deadline. 6. OWRD may not issue an extension when the work proposed during the extension period is not work towards completing construction or applying water to beneficial use as authorized under the permit. ORS 537.630; OAR 690-315. As discussed above, the work remaining on the permit as of the 2014 extension was to drill Well 3; applicant appears to have not yet drilled this well, nor does applicant apparently intend to drill this well (see Extension Application, p. 9 (applicant’s reported work does not include drilling a third well). Rather, where the extension application requests justification for additional time, the applicant states: “[p]ermit amendment to correct well locations expected to take several years in this groundwater sensitive area.” Extension Application, p. 10. That is not work that can be authorized under an extension because OWRD may only grant an extension to complete the work authorized under the permit—not to (retroactively) authorize other work by amending a permit to include what appear to be unpermitted wells, apparently being illegally used at present. Thank you for the opportunity to comment on the extension application for Permit G-16305. Please do not hesitate to contact me with any questions. Sincerely, /S/ Lisa A. Brown ___________________________ Lisa A. Brown WaterWatch of Oregon 213 SW Ash St., STE 208 Portland, OR 97204 Phone: 503.295.4039 x 4 Email: lisa@waterwatch.org fn 1 Chart-D notes an additional “Well 3” and a “Well 4” (Well Log Numbers HARN 51511 and HARN 51821) that, while drilled and apparently being used under Permit G-16305, are not authorized on the permit, a related amendment, or any other water right. This constitutes illegal use. See also below footnote 2 and accompanying text. fn 2 The calculations on this chart include handwritten edits that reduced the costs reported in Chart-B by $500,000, bringing the applicant’s reported costs before October 2012 down from $1,050,000 to $550,000. One of the handwritten edits includes crossing out the expense for drilling HARN 51821; the same well listed as Well 4 in this recent extension application, but named as Well 1 in Water Use Report 62682 and PFO on Application for an Extension of Time for Permit G-16305, p. 4 (May 13, 2014).
Lisa Brown	WaterWatch of Oregon	Comments of WaterWatch of Oregon Lisa Brown WaterWatch of Oregon 213 SW Ash St., STE 208 Portland, OR 97204 February 1, 2018 Corey Courchane Oregon Water Resources Department 725 Summer Street NE Suite A Salem, OR 97301 RE: Comments on Extension Application for Permit G-16305 (App. G-16776) Submitted via: WRIS and email (corey.a.courchane@oregon.gov) Dear Corey Courchane: On behalf of WaterWatch of Oregon (“WaterWatch”), please accept the following comments on the Extension Application for Permit G-16305, p. 5, 9 (Dec. 26, 2017) (Extension Application). Background On January 2, 2018, the OWRD published in its Public Notice of Water Use Requests its receipt of an extension application for Permit G-16305 (App. G-16776). The applicant, 3 S Ranches, filed its initial complete application for this water right on January 5, 2007. OWRD issued a permit for the use on April 3, 2008, providing for a complete application of water to beneficial use by October 1, 2012. On July 25, 2014, OWRD issued its first extension on the right, extending the deadline for construction from October 1, 2012 to October 1, 2017. On December 26, 2017, the applicant filed its second application for an extension, requesting an additional five years to complete construction. The permit’s place of use is in a part of the Greater Harney Valley Groundwater Areas of Concern referred to as Weaver Springs in which the state has documented extensive groundwater level declines. Comments Water rights holders must pursue construction and development of groundwater rights with “reasonable diligence” over a period not to exceed five years of the application date. ORS 537.630(1). OWRD may allow extensions for “good cause,” (id.; OAR 690-315-0040), but only for the “reasonable time necessary to complete water development or apply all the water to beneficial use.” OAR 690-315-0050(4). WaterWatch has reviewed the materials on this groundwater permit and related extension applications, and has concerns about the extension including, but not limited to: the applicant is illegally using water, the extension application does not contain adequate evidence of progress, the applicant has not demonstrated reasonable diligence in previous performance under the permit, development of the remaining portion of the permit is not within the capacity of the resource, the applicant has not worked in good faith, another five year permit extension is not reasonable, and a permit extension is not appropriate where the applicant is merely seeking time for a permit amendment to authorize otherwise illegal use. 1. The applicant is illegally using water. Permit G-16305 clearly requires the applicant to (1) install a measuring device at each point of appropriation before beginning to use water, (2) report an initial March static water-level measurement once well construction is complete, and (3) submit annual measurements thereafter. Permit G-16305, p. 2. The permit was granted nearly ten years ago (April 3, 2008) but the applicant has not met these three requirements. This continued failure to comply with permit conditions comes after OWRD issued an extension for this permit in 2014 even though it found that the applicant had failed to comply with permit conditions and stated that “[f]ailure to comply with permit conditions constitutes illegal use of water.” PFO on Application for an Extension of Time for Permit G-16305, p. 4 (May 13, 2014). The applicant has failed to comply with the measurement and reporting conditions. First, the applicant still has not installed measuring devices at each point of appropriation. See Extension Application, p. 9-10 (applicant plans to install flow meters in 2022). The department should not grant another extension when water use has occurred for ten years without permit compliance. Second, the applicant has apparently not reported an initial March static water-level upon completing well construction at the completed, permitted wells. Although the applicant states that they submitted static water levels to OWRD in 2011 (Extension Application, p. 5 Chart-A), the 2014 PFO for the first extension found it had not yet occurred as of that time. See PFO on Application for an Extension of Time for Permit G-16305, p. 4 (May 13, 2014) (“the required March static water level measurements have not been received by the Department . . .”). The Extension Application does not state that this has happened since 2014. This is especially problematic in an area of extensive groundwater declines because there is no way to go back and measure this; the failure to comply with the permit condition cannot be remedied after the fact. It is also especially problematic because the March static water level is a key piece of information for regulation and therefore for compliance with other permit conditions such as the decline level condition. Third, the applicant has not reported annual measurements since beginning to use water under the permit. In the PFO for the applicant’s first extension application, OWRD found that the applicant had failed to submit annual reports, and that this “[f]ailure to comply with permit conditions constitutes illegal use of water.” PFO on Application for an Extension of Time for Permit G-16305, p. 4 (May 13, 2014). With the exception of reports filed in 2014 (Report ID 62682; Report ID 62683), this failure to submit annual reports has continued. Filing reports in a single year does not constitute compliance with the permit conditions. The time-sensitive conditions requiring measurement and reporting of ground water levels and water use are critical to serving the public interest in monitoring depleted groundwater resources, and in ensuring that the state has adequate data to use in managing the resource and protecting other groundwater users. Every year the OWRD allows the applicant to use water under the permit without complying with the permit conditions is another year of lost data and baseline information against which to compare future ground water levels. Moreover, as described below, the applicant is also illegally using water by appropriating water from unpermitted wells and likely having exceeded the 3.0 acre-feet per acre limitation in 2014 (the only year reported). The applicant’s illegal use of water and failure to comply with permit conditions is especially problematic because the place of use is in the Weaver Springs area of the Greater Harney Valley Groundwater Areas of Concern where the state has documented extensive groundwater level declines. 2. The extension application is incomplete for failure to include adequate evidence of progress towards completion. Extension applications must include “annual accomplishments toward perfecting the water right under the terms and conditions of the permit, including the dates on which each condition contained in the relevant permit and any previous extension(s) was satisfied or the reason the condition was not satisfied[.]” OAR 690-315-0020(3)(e)(A). The applicant has failed to comply with permit conditions requiring them to install measuring devices and report water use (see Extension Application , p. 5, 9), but this extension application does not explain why these important conditions have not been satisfied, or what accomplishments the applicant has taken toward complying with these conditions or otherwise perfecting the right under the terms and conditions of the permit. 3. OWRD cannot find good cause to approve the extension because the applicant has not demonstrated reasonable diligence in previous performance under the permit. OAR 690-315-0040(2)-(3). In OWRD’s 2014 PFO for the applicant’s first extension application, the agency noted that “the remaining work to be completed consists of drilling Well 3, installing pipeline and a center pivot, and applying water to full beneficial use.” PFO on Application for an Extension of Time for Permit G-16305

Oregon Water Resources Department Electronic Public Comments

Permit: G 16305