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DateNameCompanyComment
 Karl AnutaLaw Office of Karl G. Anuta PC This office represents Annunziata Gould, on water issues. These comments are submitted on behalf of Ms. Gould, a local resident with a ground water well, surface rights, and a strong interest in protecting local groundwater aquifers and local surface water bodies - including but not limited to designated state Scenic Waterways. BACKGROUND As OWRD well knows, the Deschutes Basin groundwater levels are in decline. State and Federal Scenic waterway flows are being negatively affected. The ground and surface water resources in the area are being mined, and used, at a rate that is not sustainable or stable. The OWRD is charged with managing and protecting groundwater and surface water. The OWRD is the trustee of these resources, which are owned by the people of Oregon. The OWRD is prohibited from allowing over appropriation of either ground or surface water. The OWRD has an obligation to protect senior water permit holders and the Scenic Waterways in the Basin, from harm by new or junior users. SPECIFIC CONCERNS ABOUT THIS PROPOSED TRANSFER This Transfer, if not properly conditioned, has the potential to cause harm to Scenic Waterway flows, to Ms. Gould’s use and enjoyment of those waterways, to ground and/or surface water in the Basin, and/or to create unlawful expansion of existing permitted use or harm to existing water rights. Ms. Gould has the following specific concerns: 1. The proposed transfer covers a variety of lands and Certificates. If not carefully conditioned to limit the ultimate use at the new location to the 4.5 CFS allowed in the original underlying Certificates, the transfer could result in unlawful expansion or enlargement of the Certificated uses. That would be contrary to OAR 690-380-2130(3)(a). It would also violate OAR 690-380-2130(3)(b) - which incorporates OAR 690-380-5000, which in turn (in section (1)(c)) prohibits enlargement as defined in OAR 690-380-0100(2). 2. If not properly conditioned to limit both rate and duty to the amounts approved in the original Certificates at issue in this propose transfer, the transfer could result in unlawful enlargement of the Certificated uses. 3. The applicant for this transfer (Big Falls Ranch) previously moved water from other nearby surface sources to the same wells that this transfer proposes to move additional surface water to. That was done, and approved by OWRD, in transfer T-12651. That transfer was of Certificate 87655 and it was onto 206.6 acres to be irrigated as Supplemental irrigation water with up to 4.5 CFS and for a duty of 4-feet per acre. The Special Order implementing T-12651 (on 11-20-18) maintained the recognition that at no time should diversions split out from Certificate 44283 (a Certificate from which Certificate 87655 originated) exceed 4.5 CFS. It appears that the transfer proposed in T-13749 provides for no new diversions of water, if properly implemented by OWRD. Since Big Falls Ranch has already transferred Certificate 87655 via T-12651 to Wells 1, 3, 4, and 7 and Certificate 87655 holds the right to divert at the maximum rate available from its perfected water rights, there would seem to be no additional flow rate to be obtained by T-13749 at these wells. 4. The application for this transfer suggests that the purpose of the transfer is to improve efficiency. While that is a laudable goal, any transfer must be conditioned so that more “efficient” use does not result in enlargement as defined in OAR 690-380-0100(2)(d)(diverting more water at the new POA than was legally available at the original POD = enlargement). 5. There are some overlapping primary and supplemental water uses that would be created if the currently proposed transfer is allowed. The five Figures attached to the mailed and FAX'd version of this comment document this. These Figures were created using the OWRD GIS system data for the original Certificates. For example, there is an overlap of Supplemental water from Certificate 87558 to the proposed T-13749 of 21.1 acres (that's in yellow in Figure 5). There is also an apparent overlap of acreage in Supplement from the original Permit 37392 of 11.8 acres (that's in Figure 3). Thus, there is 32.9 acres within the 149.8 acres up for transfer that appear to already have Supplemental irrigation water, some with the same priority. 6. It is unclear why the applicant wants to move what is - at least on paper - additional surface water to the same wells, when the applicant already has ample Permits/Certificates to use the amount of water that it claims to need - roughly 16 CFS. By our calculation the applicant current has and/or is seeking a Certificate (per the applicant CBU filed on 9/30/20) for 16.12 CFS from these same wells. See, Figure 6 - attached. This is basically the same as the target well capacity stated in T-13749. Id. 7. A cynical person might think that what the applicant is really trying to do here is to amass a large set of “paper” water rights. Then even if those paper water rights would lead to over allocation and/or an enlargement of the use, the applicant (or someone acting on their behalf or with some other form of authority) could subsequently move some of those same “paper” rights to another location - even though the applicant never actually had the capacity to prove all those rights up. 8. Allowing excessive pumping from the wells that the transfer proposes to move surface water to, could potentially negatively impact spring flows in Deep and/or McKenzie Canyons. 9. Allowing excessive pumping from the wells that the transfer proposes to move surface water to, could potentially negatively impact the temperature or flow of the Deschutes River. 10. Allowing excessive pumping from the wells that the transfer proposes to move surface water to, could potentially measurably reduce the surface or ground water flows necessary to maintain the free flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife. 11. In the proposed transfer, the applicant fails to offer any evidence of use for Certificate 76372. The affidavit of use states that the applicant has used all the water at issue under Certificate 87655 off of four wells onto the lands at issue. However, it is not clear how the applicant can have legally used that water on these lands (the 149.8 acres) because the POU for Certificate 87655 seems to be from a different location. 12. The proposed transfer will result in a new groundwater appropriation. Consequently, the transfer should be conditioned on the applicant providing proof of appropriate mitigation as required for any new groundwater source in the Deschutes Basin. 13. There is no evidence that the proposed transfer will include the requirement that the use of water under the new Permit will not “measurably reduce the surface water flows necessary to maintain the free flowing character of a scenic waterway in quantities necessary for recreation, fish and wildlife.” Since this transfer is proposed to occur after July 19, 1995, pursuant to ORS 390.835(9)(g) - and as a matter of good public policy - the transfer should be conditioned to mandate both Measurement and Reporting, and Regulation. Given what is known about ground water declines in this area, and the OWRD obligations to protect scenic waterways (and other ground and surface water users) such conditioning makes sense. 14. It is not clear whether allowing the proposed transfer, including its overlaps, would create or constitute “layered” water rights such that approval would be contrary to OAR 690-380-2240. 15. There is currently no way for the OWRD to effectively monitor the use of the water proposed for transfer, and to distinguish that use from the use of water at the same wells for the water already transferred under T-12651. 16. Given the Groundwater limitations in the Basin; given the already declining acquirer; gi
 Kimberley PriestleyWaterWatchThere appear to be a number of areas where the proposed transfer is inconsistent with law and/or unclear as to purpose: 1. This application proposes a change of point of diversion for a supplemental water right from surface to groundwater right. That said, the right to which the surface right is supplemental is a groundwater right. It appears that, if approved, this supplemental right would pull water from the same wells as the primary right to which it is currently supplemental. Supplemental rights are to make up a deficiency of supply in the primary right. As such, a supplemental right cannot be from the same source as the primary right. 2. No proof of use was submitted for use of the surface right; the proof of use was for the underlying groundwater right. Thus, it is unclear how much of this surface right is actually eligible for transfer. 3. The application notes that well capacity is adequate to supply the full rate and duty of all the certificates supplied by these wells, including the surface right at issue. This raises questions as to enlargement. Again, a supplemental right can only be used when the primary right cannot be utilized, they cannot be used at the same time. 4. The application notes the purpose of this transfer would be to improve control of water through the system and to improve efficiency. Supplemental rights are to make up a deficiency of supply, not to be used in conjunction with other rights to improve efficiency. This raises questions as to enlargement. 5. Transfer rules prohibit enlargement, which includes, among other things, the transfer cannot result in the water right holder diverting more water at the new point of diversion than legally available at the original point of diversion. OAR 690-380-0100(2)(d). No proof of use or measurement records were submitted for the surface water right up for transfer, thus it is unclear how much is actually legally available for transfer. Given the very junior priority date of this surface right in the very over-appropriated Deschutes basin, steady use as a groundwater source this raises questions of enlargement. 6. The transfer would result in a new groundwater appropriation, thus notwithstanding ORS 540.531, the applicant should have to provide mitigation for any permit issued. ORS 390.835(9)(g). The switch from SW to GW does not result in mitigation because the surface right would not be protected instream. 7. This transfer should be evaluated in the context of the package of transfers Big Falls Ranch is proposing in connection to supplying mitigation for Thornburgh to ensure that the entire package protects against injury and enlargement. If water is going to be transferred off Big Falls Ranch to serve as mitigation for Thornburgh, then the OWRD should analyze the full package to ensure that underlying lands are not served by other sources. In other words, the OWRD should protect against increased consumptive use by the package of transfers/mitigation.