Minutes - 2009 - City Council - 12/30/2009 - Special
EAGLE CITY COUNCIL
Special Meeting Minutes
December 30, 2009
1. CALL TO ORDER: Mayor Bandy calls the meeting to order at 10:00 a.m.
2. ROLL CALL: HUFFAKER, SHOUSHTARIAN, SEMANKO, JACKSON-HElM. All
present. A quorum is present.
3. DISCUSSION OF WATER RIGHTS
Mayor introduces the issue.
City Attorney Bruce Smith: Discusses the Final Order in regards to the Matter of Application to
Appropriate Water No. 63-32573 In the Name of M3 Eagle LLC. General discussion.
Discussion on calling this meeting and going into Executive Session.
Jeff Fereday, M3, discusses the Final Order.
C.J. Petroskey: discussion on the open meeting topic. General discussion.
David Head, Protestant in the case, provides Council some history on the protestant group and
the application and Final Order.
John Forton, Protestant in the case, discusses the application and the impact of M3's water right.
Norton Edwards, I don't look at the records, I look at my well and right now my water level is
10' lower than when I dug my well.
John Petroskey: discusses the M3 water rights and application.
Allen Smith, I live on Osprey Road and I was one of the protestant in this matter, discusses the
M3 application and water rights.
Patricia Minkiewicz, I am also among the Protestants, what I and many people do not appreciate
is this Agenda that was circulated by the City, this Agenda is pretty poor communication. What
does Discussion of Water Rights mean? General discussion.
4. EXECUTIVE SESSION:
A. Acquisition of private property. I.c. S67-2345(c)
Huffaker: pursuant to 67-2345(c) and (f) I move that we go into Executive Session
to discusses whether or not the City wants to become involved in the Litigation entitled In
The Matter of Application To Appropriate Water No. 63-32573 In The Name ofM3 Eagle
LLC to discuss the ramifications it could have on the City, whether we should be involved
or want to be involved in the litigation and because that decision involves the acquisition of
water rights I'm invoking subsection (c) and I also move to amend the Agenda to add
section (1) as the litigation part of the Agenda. Seconded by Jackson-Heim. General
discussion. Huffaker: AYE; Semanko: AYE; Jackson-Heim: AYE: Shoushtarian: AYE:
ALL AYES: MOTION CARRIES...................
Council goes into Executive Session at 12:20 p.m.
Council discusses acquisition of private property and pending or threatened litigation.
Council leaves Executive Session at 12:55 p.m.
Page I
KICOUNCILIMINUTESITemporary Minutes Work AreaICC-12-30-09min.doc
Huffaker: After having been informed by Counsel as to the various ramifications of the
decisions as to how it would affect the City of Eagle we have decided that our advice to our
Counsel is to continue to monitor the legal proceedings regarding M3 and to take no other action
at this time.
5. ADJOURNMENT:
Jackson-Heim moves to adjourn. Seconded by Huffaker. ALL AYES: MOTION
CARRIES...
Hearing no further business, the Council meeting adjourned at 1 :OOp.m.
Respectfully submitted:
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SHARON K. BERGMANN
CITY CLERK/TREASURER
A TRANSCRIBABLE RECORD OF THIS MEETING IS AVAILABLE AT EAGLE
CITY HALL
Page 2
K:\COUNCILIMINUTESITemporary Minutes Work Area\CC-12-30-09mindoc
EXPLANATORY INFORMATION
TO ACCOMPANY A
FINAL ORDER
(Required by Rule of Procedure 740.02)
The accomuanvinn order is a "Final Order" issued bv the department Pursuant to section
67-5246 or 67-5247. Idaho Code.
Section 67-5246 provides as follows:
(1) If the presiding officer is the agency head, the presiding officer shall issue a final
order.
(2) If the presiding officer issued a recommended order, the agency head shall issue a
final order following review of that recommended order.
(3) If the presiding officer issued a preliminary order, that order becomes a final order
unless it is reviewed as required in section 67-5245, Idaho Code. If the preliminary order is
reviewed, the agency head shall issue a final order.
(4) Unless otherwise provided by statute or rule, any party may file a petition for
reconsideration of any order issued by the agency head within fourteen (14) days of the issuance
of that order. The agency head shall issue a written order disposing of the petition. The petition
is deemed denied if the agency head does not dispose of it within twenty-one (21) days after the
filing of the petition.
(5) Unless a different date is stated in a fmal order, the order is effective fourteen (14)
days after its issuance if a party has not filed a petition for reconsideration. If a party has filed a
petition for reconsideration with the agency head, the fmal order becomes effective when:
(a) the petition for reconsideration is disposed of; or
(b) the petition is deemed denied because the agency head did not dispose of the
petition within twenty-one (21) days.
(6) A party may not be required to comply with a fmal order unless the party has been
served with or has actual knowledge of the order. If the order is mailed to the last known address
of a party, the service is deemed to be sufficient.
(7) A non-party shall not be required to comply with a final order unless the agency
has made the order available for public inspection or the nonparty has actual knowledge of the
order.
Page 1
(8) The provisions of this section do not preclude an agency from taking immediate
action to protect the public interest in accordance with the provisions of section 67-5247, Idaho
Code.
PETITION FOR RECONSIDERATION
Any party may file a petition for reconsideration of a final order within fourteen (14) days
of the service date of this order as shown on the certificate of service. Note: the petition must
be received by the Department within this fourteen (14) day period. The department will act
on a petition for reconsideration within twenty-one (21) days of its receipt, or the petition will be
considered denied by operation of law. See section 67-5243(4) Idaho Code.
APPEAL OF FINAL ORDER TO DISTRICT COURT
Pursuant to sections 67-5270 and 67-5272, Idaho Code, any party aggrieved by a final
order or orders previously issued in a matter before the department may appeal the final order
and all previously issued orders in the matter to district court by filing a petition in the district
court of the county in which:
i. A hearing was held,
ii. The final agency action was taken,
iii. The party seeking review of the order resides, or
iv. The real property or personal property that was the subject of the agency action is
located.
The appeal must be filed within twenty-eight (28) days a) of the date of issuance (not
service) of the final order, b) the date of issuance of an order denying petition for reconsideration,
or c) the failure within twenty-one (21) days to grant or deny a petition for reconsideration,
whichever is later. See section 67-5273, Idaho Code. The filing of an appeal to district court
does not in itself stay the effectiveness or enforcement of the order under appeal.
Page 2
EXPLANATORY INFORMATION
TO ACCOMPANY A
FINAL ORDER
(Required by Rule of Procedure 740.02)
The accomnanvina order is a "Final Order" issued bv the department pursuant to section
67-5246 or 67-5247, Idaho Code.
Section 67-5246 provides as follows:
(1) If the presiding officer is the agency head, the presiding officer shall issue a final
order.
(2) If the presiding officer issued a recommended order, the agency head shall issue a
final order following review of that recommended order.
(3) If the presiding officer issued a preliminary order, that order becomes a fmal order
unless it is reviewed as required in section 67-5245, Idaho Code. If the preliminary order is
reviewed, the agency head shall issue a final order.
(4) Unless otherwise provided by statute or rule, any party may file a petition for
reconsideration of any order issued by the agency head within fourteen (14) days of the issuance
of that order. The agency head shall issue a written order disposing of the petition. The petition
is deemed denied if the agency head does not dispose of it within twenty-one (21) days after the
filing of the petition.
(5) Unless a different date is stated in a final order, the order is effective fourteen (14)
days after its issuance if a party has not filed a petition for reconsideration. If a party has filed a
petition for reconsideration with the agency head, the final order becomes effective when:
(a) the petition for reconsideration is disposed of; or
(b) the petition is deemed denied because the agency head did not dispose of the
petition within twenty-one (21) days.
(6) A party may not be required to comply with a fmal order unless the party has been
served with or has actual knowledge of the order. If the order is mailed to the last known address
of a party, the service is deemed to be sufficient.
(7) A non-party shall not be required to comply with a final order unless the agency
has made the order available for public inspection or the nonparty has actual knowledge of the
order.
Page 1
(8) The provisions of this section do not preclude an agency from taking immediate
action to protect the public interest in accordance with the provisions of section 67-5247, Idaho
Code.
PETITION FOR RECONSIDERATION
Any party may file a petition for reconsideration of a final order within fourteen (14) days
of the service date of this order as shown on the certificate of service. Note: the petition must
be received by the Department within this fourteen (14) day period. The department will act
on a petition for reconsideration within twenty-one (21) days of its receipt, or the petition will be
considered denied by operation of law. See section 67-5243(4) Idaho Code.
APPEAL OF FINAL ORDER TO DISTRICT COURT
Pursuant to sections 67-5270 and 67-5272, Idaho Code, any party aggrieved by a final
order or orders previously issued in a matter before the department may appeal the final order
and all previously issued orders in the matter to district court by filing a petition in the district
court of the county in which:
i. A hearing was held,
ii. The final agency action was taken,
iii. The party seeking review of the order resides, or
iv. The real property or personal property that was the subject of the agency action is
located.
The appeal must be filed within twenty-eight (28) days a) of the date of issuance (not
service) of the final order, b) the date of issuance of an order denying petition for reconsideration,
or c) the failure within twenty-one (21) days to grant or deny a petition for reconsideration,
whichever is later. See section 67-5273, Idaho Code. The filing of an appeal to district court
does not in itself stay the effectiveness or enforcement of the order under appeal.
Page 2
BEFORE TEE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
IN THE MATTER OF APPLICATION )
TO APPROPRIATE WATER NO. 63-32573 ) FINAL ORDER
IN THE NAME OF M3 EAGLE LLC. )
)
On November 21, 2006, M3 Eagle, LLC ("M3 Eagle" or "M3") filed an application to
appropriate water seeking to appropriate 42.5 cubic feet per second ("cfs") from ground water
for municipal purposes. On August 27, 2007, M3 Eagle filed an amended application to
appropriate water. The amended application sought to appropriate 27.47 cfs from ground water
for municipal purposes. On April 22, 2008, M3 Eagle filed a second amended application to
appropriate water. The second amended application seeks to appropriate 23.18 cfs of ground
water for municipal purposes. In addition, the application seeks a diversion to storage rate of
2.93 cfs and a diversion from storage of 1,668 acre feet of water. The application also states that
1,836 acre feet of water will be stored in ponds on the proposed development.
The applications to appropriate water were assigned water right no. 63-32573. Notice of
the second amended application was published statewide on May 1 and 8, 2008. A large number
of individual protestants and entities filed protests against the application.
Many of the protestants agreed to be represented at the hearing by spokespersons.
The following protestants identified David Head, John Thornton, or Ann Ritter, officers in the
North Ada County Groundwater Users Association ("NACGUA"), as spokespersons to speak for
them in the above contested case and during the hearing for the contested case: John L.
Thornton, Linda D. Burke, John Franden, Craig Tarbet, Sherri Randall, Charles Watkins, Robert
H. West, Stephen Dick, Bruce Van Camp, Loring Evans, Thomas Ritter, Lorn H. Adkins, Daniel
J. Glivar, Richard Lagerstrom, Vince Iazzetta, Dale Gaston, Marion D. Groothuis, Vincent J.
Minkiewicz, Carol Jean Thompson and/or John Petrovsky, Barb Jekel, Robert Lyons, G. E.
McDonald, George W. Keyes, Eric C. Leigh, Shelby Conrad, Morgan Masner, Jim Banducci, Jr.,
Steven C. Purvis, Robert S. Niccolls, Jr., David Collett, Walter H. Meyer, Jr., Michael
McMurray, Lyle Jordan, Ronald R. Rapp, Bruce Richardson, and Barrett D. Jones.
The following protestants identified Bill Lawton as the spokesperson in the above
contested case and during the hearing for the contested case: Robert L. Wood, M. Howard
Goldman, and Timothy R. Milburn.
FINAL ORDER, Page 1
During prehearing procedures, some protestants were dismissed for failure to appear and
participate. In a Default Order dated October 7, 2008, protestants Jonathan Seel, Jon Busack,
Yvonne Morton, Cal Gothberg, and Brent Watson for Eagle Pines Water Users Assn. were
dismissed as parties for failure to appear at the time and place set for prehearing conference.
In a Default Order dated May 14, 2009, protestants Bill Lawton, Robert L. Wood, M.
Howard Goldman, and Timothy R. Milburn's were dismissed as parties for failure to appear at
the time and place set for hearing. The Default Order also informed the protestants Bill Lawton,
Robert L. Wood, M. Howard Goldman, and Timothy R. Milburn that they could appear and
testify as public witnesses.
The remaining active protestants were: David Head, John Thornton, or Ann Ritter as
spokespersons for members of NACGUA, Alan Smith as spokesperson for Alan and Jason Smith
and Eagle Pines Water Association, and Norman Edwards appearing individually.
Beginning in April 2009 and ending in July 2009, the interim director conducted a
hearing regarding the protests. The following parties appeared at the hearing:
Jeffrey C. Fereday and Michael P. Lawrence, attorneys at law, appeared for M3 Eagle,
John Thornton and David Head appeared on behalf of the North Ada County Groundwater
Association and as spokespersons for multiple protestants, Alan and Jason Smith appeared for
Pines Water Association and other protestants, and Norman L. Edwards represented himself.
Following the presentation of testimony, the parties submitted briefs and response briefs.
The submittals were complete on October 4, 2009.
Based on the evidence presented at the hearing, the interim director finds, concludes, and
orders as follows:
FINAL ORDER, Page 2
1.
following:
Flow Rate:
FINDINGS OF FACT
Application to appropriate water no. 63-32573, filed by M3 Eagle, proposes the
Source of Water:
Period of Use:
Priority Date:
Place of Use:
Volume:
Points of Diversion:
Township 5 North, Range 1 West, Section 13,
Section 15 (Potential Municipal)
Section 21 (Potential Municipal)
Section 22 (Potential Municipal)
Section 23
Section 23 (Potential Municipal)
Section 24
Section 24 (Potential Municipal)
Section 27 (Potential Municipal)
Section 28
Section 28 (Potential Municipal)
Section 33
Section 33 (Potential Municipal)
Township 5 North, Range 1 East, Section 19
23.18 cubic feet per second ("cfs")
2.93 cfs diversion to municipal storage
1,836 acre feet stored in ponds on the proposed
development.
1,668 acre feet diversion from storage
Ground water
Year-round
November 21, 2006
Municipal within the boundaries of the M3
Eagle development
6,535 acre feet
SENW
SWSW
SESE
NENE, NESE
NESW, SESW
SWNE, NENW, NESW, SESW, NESE
NWNE, NENW
NESW
NENE, SENW
SWSE, SESE(2)
SWNE, SESE
NENE, NWNW(2)
NWNE
SWNE
2. M3 Eagle proposes to develop 6,005 acres of real estate located approximately
five to ten miles northwest of the city center of Eagle, Idaho. The M3 Eagle property is located
in the foothills of northwest Ada County. The parcel of property is approximately seven miles
long in an east — west direction and approximately four miles wide in a north — south direction.
Portions of the drainages of Big Gulch and Little Gulch are within the proposed M3 Eagle
development. The parcel is bounded by Highway 55 on the east, Highway 16 on the west, BLM
property on the south, and additional undeveloped land to the north.
3. The property is presently raw land, and has been used in the past for dry grazing.
There is no concentrated residential development within the property. There are no water lines
nor is there any municipal system providing municipal water to any users within the property
boundaries.
FINAL ORDER, Page 3
4. The BLM property located south of the M3 Eagle property is an approximate one
mile wide buffer zone between the M3 Eagle property and scattered residential/ranchette
development and agricultural lands at the base of the foothills as they transition south into the
Boise River Valley. Any water lines from the City of Eagle and its integrated system are located
several miles from the proposed development.
5. On December 27, 2007, M3 Eagle and the City of Eagle executed a Preannexation
and Development Agreement. The agreement contemplates that the M3 Eagle property will be
annexed into the City of Eagle in the future.
6. M3 Eagle and the City of Eagle also agreed that the water system constructed
within the M3 Eagle development will be conveyed to the City of Eagle in the future and become
part of the city's municipal water system. M3 Eagle will convey portions of the water system to
the City of Eagle as phases of the M3 Eagle development are completed.
7. At the time the record closed for this contested case, annexation into the City of
Eagle was not possible because the M3 Eagle property was not contiguous with any City of
Eagle boundary.
8. The M3 Eagle development will be a planned unit development/planned
community. The M3 Eagle developers are planning for homes, schools, and a commercial
district within the development. Presently, M3 Eagle plans to develop 7,153 dwelling units. At
build -out, M3 Eagle projects a population within the development of approximately 21,000
people. In addition, M3 Eagle plans to develop 245 acres of commercial, office, and mixed use.
9. Within the development, M3 Eagle projects the construction of three elementary
schools, one middle school, and one high school. In addition there will be one or more golf
courses.
10. Approximately twenty to forty percent of the development will be open space.
11. Because of the size of the M3 Eagle development, M3 Eagle asserts that it must
presently secure a water supply for the entire development to obtain the necessary financing and
to build the core water system and other infrastructure for the entire development. M3 Eagle
projects that build -out will take a thirty year time period. An expert economist predicted growth
based on both a twenty year planning horizon (Exhibit 40) and a thirty year planning horizon
(Exhibit 60). The economist predicted that growth in the area of over 7,000 housing units and an
increase in population of approximately 21,000 additional residents is not unreasonable given the
historical growth in and the demographics of the Treasure Valley. With a 30 year development
period, the number of homes predicted during the first five years is 1,011. The economist
concluded that, even given the cyclical nature of development and of current recessionary effects
on development, a 30 -year period of time is a reasonable period to complete the development.
12. The Comprehensive Plan for the City of Eagle projects population growth through
the year 2025. See Exhibit 57, page 9. The City of Eagle projections were made in 2007 prior to
the present economic downturn. The supporting information for projections of population
FINAL ORDER, Page 4
growth in the City of Eagle's Comprehensive Plan was not provided as part of the plan. There is
no nexus between the population projections in the comprehensive plan and the population
projections for the M3 Eagle development presented at the hearing.
13. The City of Eagle Comprehensive Plan generally discusses development in the
foothills but does not specifically address the proposed M3 Eagle development.
14. Despite the number of proposed points of diversion identified in the application,
M3 Eagle predicts the total number of points of diversion will probably be between five and
seven wells. M3 Eagle applied for a larger number of proposed points of diversion to allow
flexibility in location and to allow additional wells to be drilled depending on the productivity of
wells as they are completed.
15. Testimony at the hearing established that state of the art conservation measures
will be employed through system design, monitoring, and reuse of waste water for ponds and
irrigation. M3 Eagle plans to install an independent waste water treatment facility and will treat
the water to drinking water quality standards.
16. The proposed points of diversion for the M3 Eagle development are located in an
area of complex hydrogeology. Significant testing and analysis by M3 Eagle established that the
water underlying the M3 Eagle property is located in a sand aquifer characterized by M3 Eagle
as the Pierce Gulch Sand Aquifer ("PGSA").
17. The geological formation of the PGSA was created by an ancient, receding lake.
When the lake was full of water, tributary streams deposited sand at the edges of the lake as
outwash from the uplands. As the lake receded, these tributary streams washed the deposited
sand out into the lake area. These sands were deposited in the lake bed over a long period of
time. Coarser sands were deposited near the boundaries of the foothills and the finer sands were
suspended as the stream emptied into the receding lake where the finer sands finally dropped out
of suspension.
18. Subsequent to the deposition of the material comprising the PGSA, other lakes
formed on top of the outwash. During the life of these later -in time -lakes, fine grained sediments
were deposited on top of the coarser sand, creating clay layers. These clay layers form
impervious aquitards that impede the vertical migration of water into and out of the PGSA.
Because of these overlying confining layers, the PGSA throughout much of its extent is under
pressure and exhibits artesian conditions.
19. A fault runs through the M3 Eagle property in a southeast to northwest diagonal
direction, splitting the northeast one quarter of the M3 property from the southwestern three
quarters of the property. The fault is known as the West Boise -Eagle Fault. See Exhibit 2,
Figure 6. This fault prevents the horizontal movement of water across the fault boundary.
20. The PGSA is not completely horizontal, but is tilted downward from the northeast
to the southwest, sloping approximately one to two degrees in declination.
FINAL ORDER, Page 5
21. If extended upslope, the base of the PGSA would intersect the ground surface on
the portion of the M3 Eagle property that is on the southwest side of the West Boise -Eagle fault
line. In geologic terms, daylighting of the aquifer material with ground surface is called the
outcrop of the formation and defines the strike of the formation as it intersects a horizontal plane.
The line of intersection, referred to herein as the "strike line", intersects the West Boise -Eagle
fault in the southeast corner of the M3 Eagle property and follows a west-northwest orientation,
nearly bisecting the M3 Eagle property in half. See Exhibit 2, Figure 6. The exposure of the
PGSA to land surface results is an additional physical separation between PGSA water on the
southwest side of strike line with shallow ground water in aquifers northeast of the strike line.
22. At the strike line, there is no ground water in the PGSA formation. As the PGSA
dips downward to the southwest, the formation reaches sufficient depth that it becomes saturated
with PGSA ground water. PGSA ground water near the strike line is not under artesian pressure
because there are no -overlying fine grained sediments to confine the aquifer. As the PGSA dips
further downward to the southwest, the aquifer is confined by impervious formations above the
PGSA.
23. The PGSA underlies approximately the lower southwest half of the M3 Eagle
property.
24. The M3 Eagle property overlies a portion of the northeastern edge of the PGSA.
The portion of the PGSA underlying the M3 Eagle property is on the upslope edge of the PGSA.
Wells completed in the downslope areas of the PGSA in the Boise River Valley will encounter
water at greater depths and at greater pressures than at its location under the M3 Eagle property.
If the PGSA is significantly stressed in the future, the reliability of the water supply as water
levels decline would be first affected in the upslope areas of the aquifer under the M3 Eagle
property.
25. PGSA ground water underlying the M3 Eagle property has a gradient, or flow
direction, of west in the Boise River Valley and northwest toward the lower Payette River
Valley.
26. In areal extent, the PGSA is a large hydrogeologic formation. Although the
boundaries have to yet be defined, M3 Eagle estimates that the PGSA extends to the south
towards Meridian, to the east into Garden City, to the west in the Boise River Valley toward the
Snake River, and northwest toward the Payette River Valley.
27. Several expert witnesses for M3 Eagle testified that there were no signs or
indications of faulting that would compartmentalize the PGSA in the area of the proposed M3
Eagle development. Department witnesses raised questions about the data that might indicate
some limitation on the availability of water from the larger PGSA. Department staff referred to
several M3 Eagle exhibits that identify a possible fault running diagonally from the southeast to
the northwest in the southwest portion of the M3 Eagle property (See Exhibit no. 12, page 10)
that was identified and mapped by M3 Eagle expert witnesses. This fault is Located northeast of
FINAL ORDER, Page 6
the M3 Eagle test well no. 1 and also northeast of Kling well. The fault line separates test well
no. 1 and the Kling well from other M3 Eagle wells located in the Big Gulch Drainage northeast
of the fault line.
28. Figure 46 of Exhibit 44 depicts much greater seasonal ground water level
drawdowns in the Kling well and test well no. 1 from pumping from the PGSA than in the M3
Eagle wells located farther up Big Gulch. These larges differences in drawdowns could be
caused by a horizontal flow impediment that restricts ground water communication between the
PGSA underlying the M3 Eagle property and the larger PGSA underlying the Boise River Valley
floor.
29. In addition, the slight downward trend of ground water levels for the PGSA wells
in Big Gulch plotted on Figure 46 is inconsistent with testimony regarding stable or rising water
levels exhibited by PGSA wells in the Boise River Valley floor.
30. Significant differences in comparative ground water level drawdowns and
differences in water level trends are indications of discontinuity, possibly caused by faulting, in
the PGSA underlying the M3 Eagle property. This discontinuity could limit the supply of
available ground water for appropriation proposed by M3 Eagle.
31. M3 Eagle conducted geochemical tests of the water in the PGSA, both inside and
outside of the M3 Eagle property. See Exhibit no. 43. The geochemical analysis established that
the source of the PGSA ground water underlying the M3 Eagle property is the ancestral Boise
River. This means that the water in the PGSA is derived primarily from the Boise River and the
water presently being pumped is hundreds to thousands of years old The chemistry of the water
in the PGSA underlying the M3 Eagle property does not exhibit chemical characteristics of water
from surficial recharge.
32. Evidence at the hearing established that most of the "groundwater in the PGSA
originates as recharge in the east and south Boise regions augmented by leakage of canals south
and east of Meridian." PGSA recharge is from the Boise River in the Boise area. See Exhibit 2
Page 5.
33. M3 Eagle developed a numerical ground water model to simulate the effects of
withdrawals from the M3 Eagle development at full build -out. The area within the model,
defined as the model domain, encompasses 520 square miles. The model boundaries are
approximately: Cole Road in Boise on the east extended to the north and south, the Payette
River on the north, New Plymouth on the west extended to the north and south, and Lake Hazel
Road in Boise on the south extended to the west and east. The model domain includes the
municipalities of Eagle, Star, Middleton, Nampa, Caldwell, Emmett, Meridian, and portions of
Boise and Garden City.
34. The model was constructed with seven separate lithologic layers. Layers 5-7
represent the PGSA. The model assumes little or no inflow to the PGSA from surficial recharge.
The inflow estimate into the PGSA, layers 5-7, through the southeast boundary of the model is
FINAL ORDER, Page 7
107 - 115 cfs. This assumption is consistent with M3 Eagle's presentation that the Boise River
in the Boise area is the major contributing source of water to the PGSA.
35. Despite testimony at the hearing about the direction of ground water flow in the
PGSA to the west -- northwest, the model shows inflows to the model boundary of layers 5-7 on
the north and west of 9.0 cfs. This modeling assumption conflicts with the conceptual model of
flow from the Boise Valley into the Payette Valley.
36. The M3 Eagle model estimates existing pumping of ground water from the PGSA
within the model domain of 84 cfs and another 10 cfs for the M3 Eagle property at the time of
build -out. M3 Eagle assumed these values recognizing it didn't know the volume of water
diverted from the PGSA.
37. The interim director assumes that water will not inflow across a model boundary
in a direction opposite from the direction of the ground water gradient, and will ignore the 9.0 cfs
of inflow to the PGSA at the northwest and west boundaries. Both of these boundaries are
referred to as outflows to the PGSA (Exhibit 16). Assuming a total withdrawal of 94 cfs and a
total inflow of 107 - 115 cfs, only 13 - 21 cfs would remain of the total inflow for other future
uses within the model domain from the PGSA.
38. Most of the communities within the model boundary have expanding growth
areas near their perimeters. The flow of 13 - 21 cfs assumed to remain as unpumped water in the
PGSA may be needed for future use by the communities within the model boundary. In addition,
not all of the ground water in the PGSA is available for withdrawal under the M3 Eagle property.
Some component of ground water should be dedicated to underflow and to buffer the estimates
used in the ground water flow model unless M3 Eagle proposes an overdraft that would reverse
the direction of the flow gradient.
39. The amount of undeveloped land within the model domain that logically could be
developed by the existing municipalities as they expand could easily require diversion flow rates
in excess of 13-21 cfs for these future uses.
40. M3 Eagle owns the property planned for development almost without debt. M3
Eagle owes a debt of $15,000,000 to the Dallas Police and Fireman's Pension Fund.
41. M3 Eagle does not have any financial reserves to complete the development. M3
Eagle was instrumental in the passage of legislation during the 2009 legislative session
authorizing formation of a community infrastructure district. By forming a community
infrastructure district, the district can sell tax exempt bonds to finance the development. M3
Eagle is capable of forming a district and selling the tax exempt bonds for financing. Expert
witnesses testified that the possibility of obtaining such financing is good.
CONCLUSIONS OF LAW
1. Idaho Code § 42-203A states in pertinent part:
FINAL ORDER, Page 8
In all applications whether protested or not protested, where the proposed use is
such (a) that it will reduce the quantity of water under existing water rights, or (b)
that the water supply itself is insufficient for the purpose for which it is sought to
be appropriated, or (c) where it appears to the satisfaction of the director that such
application is not made in good faith, is made for delay or speculative purposes,
or (d) that the applicant has not sufficient financial resources with which to
complete the work involved therein, or (e) that it will conflict with the local
public interest as defined in section 42-202B, Idaho Code, or (f) that it is contrary
to conservation of water resources within the state of Idaho, or (g) that it will
adversely affect the local economy of the watershed or local area within which the
source of water for the proposed use originates, in the case where the place of use
is outside of the watershed or local area where the source of water originates; the
director of the department of water resources may reject such application and
refuse issuance of a permit therefor, or may partially approve and grant a permit
for a smaller quantity of water than applied for, or may grant a permit upon
conditions.
2. The applicant bears the ultimate burden of proof regarding all the factors set forth
in Idaho Code § 42-203A.
3. Idaho Code § 42-202B(5) defines the term municipal provider:
(5) "Municipal Provider" means:
(a) A municipality that provides water for municipal purposes to its residents
and other users within its service area;
(b) Any corporation or association holding a franchise to supply water for
municipal purposes, or a political subdivision of the state of Idaho authorized to
supply water for municipal purposes, and which does supply water, for municipal
purposes to users within its service area; or
(c) A corporation or association which supplies water for municipal purposes
through a water system regulated by the state of Idaho as a "public water supply"
as described in section 39-103(12), Idaho Code.
Idaho Code § 42-202B(6) defines how a water right can be used for municipal purposes:
(6) "Municipal purposes" refers to water for residential, commercial,
industrial, irrigation of parks and open space, and related purposes, excluding use
of water from geothermal sources for heating, which a municipal provider is
entitled or obligated to supply to all those users within a service area, including
those located outside the boundaries of a municipality served by a municipal
provider.
4. M3 Eagle is not yet a municipal provider under any of the three definitions
contained in Idaho Code § 42-202B(5). M3 Eagle stated that it intends to become a municipal
FINAL ORDER, Page 9
provider under Idaho Code § 42-202B(5)(c), defined as a "corporation or association which
supplies water for municipal purposes through a water system regulated by the State of Idaho as
a "public water supply."
5. M3 Eagle's prospective plans to become a municipal provider in the future do not
prevent it from obtaining a water right for municipal purposes. The procedure for obtaining a
water right in the state of Idaho is an application, permit, and license process. A person or entity
seeking a water right often proposes a use of the water for which the person or entity may not
have previously used water for in the past. One of the purposes of the application -permit -license
process is to authorize a prospective water user to develop the proposed use over a period of five
years, and file proof of beneficial use at the expiration of the development period.
6. For issuance of a standard water right, the determination of whether a permit
holder is a municipal provider should be made at the time proof of beneficial use is filed and a
beneficial use exam is conducted for purposes of licensing.
7. Idaho Code § 42-202(2) states:
(2) An application proposing an appropriation of water by a municipal
provider for reasonably anticipated future needs shall be accompanied by
sufficient information and documentation to establish that the applicant
qualifies as a municipal provider and that the reasonably anticipated future
needs, the service area and the planning horizon are consistent with the definitions
and requirements specified in this chapter. The service area need not be described
by legal description nor by description of every intended use in detail, but the area
must be described with sufficient information to identify the general location
where the water under the water right is to be used and the types and quantity of
uses that generally will be made. (Emphasis added).
8. Idaho Code § 42-202B(8) defines the term reasonably anticipated future needs:
(8) "Reasonably anticipated future needs" refers to future uses of water by a
municipal provider for municipal purposes within a service area which, on the
basis of population and other planning data, are reasonably expected to be
required within the planning horizon of each municipality within the service
area not inconsistent with comprehensive land use plans approved by each
municipality. (Emphasis added).
9. While a person or entity not currently a municipal provider can obtain a
water right permit to develop a municipal use, obtaining a permit for municipal use that
includes a component for reasonably anticipated future needs requires a higher standard.
One of those standards is the requirement in Idaho Code § 42-202 that the municipal
provider "qualifies" as a municipal provider at the time the application is filed. In the
instant case, M3 has not constructed any of the water services that it proposes. The wells
needed for diversion have not been constructed. None of the water lines are in place,
FINAL ORDER, Page 10
service stubs are not provided for the anticipated residential development. None of the
other water related infrastructure has been constructed. M3 Eagle does not qualify as a
municipal provider under Idaho Code § 42-202.
10. M3 Eagle argues that relying on the tense of the verb in Idaho Code § 42-
202 is not sufficient justification to deny the water right for reasonably anticipated future
needs. M3 Eagle argues that the interim director should consider the broader intent of the
statute. However, the requirement that the qualification be established at the time of the
application is clear from the statutory language.
11. The quoted language above in Idaho Code § 42-2028(8) establishes that,
in order to obtain a municipal water right for a reasonably anticipated future need, the
municipal provider must have a service area that includes a municipality within the
service area, and that the projections of population and other planning data are reasonably
expected to be required in the planning horizon of each of the municipalities within the
service area. M3 Eagle executed a preannexation agreement with the City of Eagle. At
the time the record closed, the M3 Eagle property was not annexed into the City of Eagle.
The development agreement establishes that, at some future date when the system is built
and homes are in place, the water system will be conveyed to the City of Eagle, but, at
present, there is no water system, it is not owned by the City of Eagle, and the proposed
development is not part of the City of Eagle.
12. Finally, the population and other planning data presented at the hearing
was not population and planning data for the City of Eagle. The population and other
planning data related solely to M3 Eagle's projections of what its development might be
in the future.
13. M3 Eagle would have the director broadly interpret the municipal act to
allow any prospective municipal provider to obtain a water right for a lengthy period of
time without any development in place. The interim director's reading of the statutory
language leads him to conclude that the legislature wanted to allow existing communities,
and more specifically, existing municipalities within which an established integrated
water system was in place, to protect future water supplies by allowing these entities or
municipal providers to these entities to obtain a water right for future anticipated needs
that would extend beyond the normal permit development period. The logical support for
this reasoning would be that these integrated systems are in place, that the orderly
extension of these systems as the municipalities grow would be more cost effective and
would be more orderly than to allow fragmented developments or developments that
could preclude these existing systems from expanding.
14. The M3 Eagle development is, by its nature, the very type of development
that the legislature did not recognize as qualifying for a water right for reasonably
anticipated future needs. M3 Eagle proposes a large appropriation of water for a purpose
that is not yet established. The possible result of this protection could limit the future
ability of the existing municipalities in the area to extend and expand their currently
FINAL ORDER, Page 11
existing integrated systems. The interim director determines this was not the purpose of
the 1996 municipal act which authorized the appropriation of water for reasonably
anticipated future needs.
15. This reasoning is particularly supported by the distance of the M3 Eagle
development from the cores of the existing communities and by the location of the M3
Eagle property at the boundaries of the PGSA. As additional demands are made on the
PGSA in the Treasure Valley floor, these demands and withdrawals of water could
impact the availability of water in the up -gradient area of M3 Eagle. If the water levels
or pressures in the PGSA decline significantly, the water users that potentially would be
the first to be impacted by these declines will be those drawing water from the up-slope
areas of the aquifer where there is limited available drawdown. Consequently, M3 Eagle
has the ability, if these proposed future anticipated needs are recognized, to hold the
future development of water in the Treasure Valley floor for the existing communities
hostage to its future anticipated needs that are distant and not yet developed. This further
statement of the public interest supports the decision of the interim director.
16. Based on the evidence presented at the hearing, M3 Eagle should be
granted a permit for the approximate proportional flow rate it would be able to develop
over a period of five years. The 30 -year proposed planning horizon contains six, five
year periods. The quotient of 23.18 cfs divided by six is 3.86 cfs. M3 Eagle should be
allowed some additional quantity of flow rate for development if additional development
can occur in the first five years. A permit should be issued for 4.0 cfs to M3 Eagle.
17. The water supply is sufficient to provide an appropriation of 4.0 cfs.
18. The applicant has sufficient financial resources to develop a first phase of
the project within five years at a flow rate of 4.0 cfs.
19. An appropriation of 4.0 cfs from the PGSA underlying the M3 Eagle
property will not injure other water rights.
20. A comparable quantity of annual volume for the municipal use is one-
sixth of 6,535 acre-feet, or 1,089 acre-feet.
21. To accommodate flexibility, M3 Eagle may divert 2.93 cfs of the 4.0 cfs
to storage, but cannot exceed the rate of 4.0 cfs. Diversion from storage for uses shall be
limited to 1,089 acre feet of water. To allow construction of ponds and retention of
water, M3 Eagle may store up to 1,089 acre feet of water in ponds on the proposed
development. Storage in ponds is limited to 1,836 acre feet. The total diversion from
ground water is limited to 1,089 acre feet. Additional water of up to 1,836 acre feet may
be stored if waste water is delivered to the ponds after treatment.
22. M3 Eagle will employ measures of conservation to conserve the waters of
the state of Idaho. At an appropriation of 4.0 cfs, the proposed application is in the public
interest.
FINAL ORDER, Page 12
ORDER
IT IS HEREBY ORDERED that application to appropriate water no. 63-32573 is APPROVED
for the appropriation of the following quantities:
Flow rate:
Flow rate diverted to storage:
Total flow rate:
4.0 cfs
2.93 cfs
4.0 cfs
Annual volume diverted:
Annual volume diverted from storage:
Volume of storage:
Total annual volume authorized
1,089 acre feet
1,089 acre feet
1089 acre feet
1,089 acre feet
IT IS FURTHER ORDERED that a map depicting the place of use boundary for this
water right at the time of this approval will be attached to the permit approval document for
illustration purposes.
IT IS FURTHER ORDERED that permit no. 63-32573 is subject to the following
conditions:
2015.
Proof of application of water to beneficial use shall be submitted on or before January 2,
Subject to all prior water rights.
Project construction shall commence within one year from the date of permit issuance
and shall proceed diligently to completion unless it can be shown to the satisfaction of the
Director of the Department of Water Resources that delays were due to circumstances over
which the permit holder had no control.
Right holder shall comply with the drilling permit requirements of Section 42-235, Idaho
Code, and applicable Well Construction Rules of the Department.
The total flow rate diverted under this right shall not exceed 4.0 cfs.
The total annual volume diverted under this right shall not exceed 1,089 acre feet.
Prior to the diversion and use of water under this approval, the right holder shall install
and maintain acceptable measuring device(s), including data logger(s), at the authorized point(s)
of diversion, in accordance with Department specifications.
Prior to the diversion of water in connection with this right, the right holder shall provide
the Department with a plan for monitoring ground water levels in the vicinity of the place of use
for this water right. The monitoring should occur in parallel with development and production
FINAL ORDER, Page 13
and should include identification of non -producing wells and timelines for measuring and
reporting. The right holder shall not divert water in connection with this right until the
monitoring plan is approved by the Department. Failure to comply with the monitoring plan
once it is accepted shall be cause for the Department to cancel or revoke this right.
Prior to or in connection with the proof of beneficial use statement to be submitted for
municipal water use under this right, the right holder shall provide the Department with
documentation showing that the water supply system is being regulated by the Idaho Department
of Environmental Quality as a public water supply and that it has been issued a public water
supply number.
Place of use is within the area served by the public water supply system of M3 Eagle LLC. The
place of use is generally located within Sections 7, 15, 17, 18, 19, 20, 21, 22, Township 5 North, Range 1
East, and Sections 10, 11, 12, 13, 14, 15, 21, 23, 24, 26, 27, 28, and 33, Township 5 North, Range 1 West.
The right holder shall fully utilize treated waste water for irrigation purposes on all common
areas, including parks, playgrounds, golf courses and other similar areas, prior to applying any water
under this right to such common area parcels. This condition shall not apply to small isolated
common area parcels for which connection to the waste water reuse system is not feasible. The right
holder shall provide the Department with a schematic of the waste water reuse system identifying any
small isolated common area parcels for which the right holder requests this condition not apply.
Water shall not be diverted for fire protection use under this right except to fight or repel
an existing fire. Any amount of water used to fight a fire will not count against the annual
volume limit for this right.
Z
sf
Dated this r—day of December, 2009.
Gary S ckm
i(aVii
Interim Director
FINAL ORDER, Page 14
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this of day of December, 2009, a true and correct
copy of the documents described below were served on the following by placing a copy of the
same in the United States mail, postage prepaid and properly addressed to the following:
Document(s) Served: FINAL ORDER and Explanatory Information to Accompany a
Final Order
Postal
Name Address City State Code
JEFFREY C FEREDAY 601 W BANNOCK ST
GIVENS PURSLEY LLP PO BOX 2720 BOISE ID 83701
M3 EAGLE LLC 533 E RIVERSIDE DR STE 110 EAGLE ID 83616
ALAN SMITH 3135 OSPREY RD EAGLE ID 83616
EAGLE PINES WATER USERS
ASSN 3135 N OSPREY RD EAGLE ID 83616
5264 N SKY HIGH LN EAGLE ID 83616
JOHN THORNTON
NORTH ADA COUNTY
FOOTHILLS ASSN
ATTN: DAVID HEAD
NORMAN L EDWARDS
LINDA D BURKE
JOHN FRANDEN
CRAIG TARBET
SHERRI RANDALL
CHARLES WATKINS
ROBERT H WEST
STEPHEN DICK
BRUCE VAN CAMP
LORING EVANS
THOMAS RITTER
LORN H ADKINS
DANIEL J GLIVAR
RICHARD LAGERSTROM
VINCE IAZZETTA
DALE GASTON
MARION D GROOTHUIS
VINCENT J MINKIEWICZ
CAROL JEAN THOMPSON
BARB JEKEL
ROBERT LYONS
G E MC DONALD
GEORGE W KEYES
FINAL ORDER, Page 15
855 STILLWELL DR
884 W BEACON LIGHT RD
CIO 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/0 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/0 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
CIO 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
EAGLE ID 83616
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
Name
ERIC C LEIGH
SHELBY CONRAD
MORGAN MASNER
JIM BANDUCCI JR
STEVEN C PURVIS
ROBERT S NICCOLLS JR
DAVID COLLETT
WALTER H MEYER JR
MICHAEL MC MURRAY
LYLE JORDAN
RONALD R RAPP
BRUCE RICHARDSON
BARRETT D JONES
FINAL ORDER, Page 16
Address
GO 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
C/O 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
City
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
EAGLE
i,e,,,,e,,,L7.,,2d
vi
Deborah J. Gibson
Administrative Assistant
Water Management Division
State
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
ID
Postal
Code
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
83616
M3 Municipal Water Right Application — IDWR Hearing — July 30, 2009
Closing Statement
North Ada County Groundwater Users Association
Mr. Hearing Officer:
As the hearing phase in the M3 Municipal Water Right Application draws to a close after
nearly a year of preparation, 17 full days of hearings, a collective effort of thousands of
hours conducting research, assembling data, fundraising, public education, presentation
creation, copy distribution and in the end spending over $80,000, we the 37 protestants
known as the North Ada County Groundwater Users Association rest our case and thank
you for the opportunity to be heard in this matter. We appreciate the important and
difficult responsibility you have in both the protection of, and the provision of water
rights for the citizens of this great state. We appreciate your patience with our pro -se
protest. Thank you Mr. Hearing officer.
As put forward in our protest notification and again in our opening statement in April, we
formed our association out of mutual concern for the long term sustainability of the
ground water resources in North Ada County. We are not an anti -development group as
M3 has stated a number of times during these hearings. This is evidenced by our open
and consistent concerns about groundwater that began back in January of 2006, eleven
months prior to the filing date of the original M3 Eagle water right application. At that
time we petitioned the Governor and the director of the department to fund an
independent study of the aquifers north of Eagle and Star. We commend Director Tuthill
and the department for their decision in 2007 to go forward with the North Ada County
Groundwater Study. This work, as well as the IDWR funded Cosgrove study have been
conducted by scientists with no financial interest in north Ada County groundwater, and
final reports on these works are expected to be completed in the next six months. We
would ask the Department of Water Resources to include the results of these studies in
the deliberations of granting such a large water right as requested by M3 Eagle LLC.
1
From the outset we have stated that M3 could be eligible for a phased water right that
would allow their development to begin, but not so much water that could be injurious to
approximately two thousand senior water right holders in the impact area. M3 Eagle
acknowledged the phasing of their water right in their letter from Jeff Fereday of Givens
Pursley LLC, to IDWR Director Dr. David Tuthill dated March 23, 2007 (Exhibit
551834) second page, second paragraph titled The concept of phasing, 13th line: "Phil
noted, and we agree, that if some type of phasing were used, it would have to protect the
application's overall priority in the context of the municipal statute".
With a conservative decision on water quantity and an effective monitoring program, we
believe the Department is serving the needs of both the applicant and the Protestants. We
believe in private property rights, the need for economic development and the beneficial
use of water in our area. But we have also been consistent in stating that development
needs to be predicated on sustainable growth principles...and in this very important case
that means sustainable aquifers that support existing senior water users as well as
reasonable new demand on the groundwater resource.
As you are aware, this area contains nearly 2,000 wells and a majority of households,
small farms and ranches depend 100% on these wells as their only source of water. If
their wells go dry, there is simply no easy or affordable remedy short of drilling a new
well at great expense. In these hearings we have heard testimony from folks like Greg
Taylor, Chuck Roberts and Tom Sorge who along with several of their neighbors in the
Homer road area north of Eagle have had to drill new, deeper wells in the past few years
to reach down to a declining water level. While we have heard testimony from M3 Eagle
about the enormous size and expense of their groundwater study in this exact area, why
have we not seen a single graph or chart that explains this real life circumstance
occurring within just a mile or two of the M3 property? These recent dry wells are
alarming when one considers we have had reasonable snow pack in the past few years,
and that no significant development has taken place near this location.
The Department of Water Resource's own technical experts have testified that there is a
line of evidence that suggests there may presently be a declining water table as identified
in the IDWR Staff Report, Exhibit # 50.
2
One has to ask, what the effects will be when the M3 Eagle planned community begins
withdrawing millions of gallons of groundwater every single day just to the north of these
declining local wells? Is it fair to subject the citizens and senior water rights holders to
such uncertainty and risk, all for the potential benefit of real estate development and its
owners? We are asking the Department to take a proactive approach that looks into the
future and uses scientific methods to develop a groundwater management plan for
growing areas like north Ada County before committing to a large closed ended water
right as proposed by M3 Eagle.
We have heard repeatedly in testimony that M3 Eagle has invested $2 million dollars in
this water right application. While this may sound substantial, in NACGUA's testimony
we have shown that this number equates to less than $300 per residential building lot
(7,100+ homes), not inclusive of commercial and recreational development within M3
Eagle's planned community. We believe the significant risk and potential cost to owners
of senior water rights is far greater than that of M3 Eagle's investment when considering
that 2,000+ existing well owners may be injured. In the testimonies given here by Greg
Taylor and Chuck Roberts we learned of their recent necessity to replace their wells due
to declining water level near the M3 Eagle property at an average expense of
approximately $21,000 each. Using this conservative figure for replacement cost, this
would equate to a total risk factor to existing local well owners of nearly $42 million
dollars! As big as that figure sounds, it is important to note that this number would be
negligible when contrasted with the potential decline in property values that could be
precipitated by the knowledge of a declining water level in the area.
We believe there is insufficient data or evidence to determine whether the groundwater
supply is sufficient to support M3's proposed groundwater withdrawals and that they will
not adversely affect the local economy of the watershed. Over the course of the past
year, and especially during these hearings, we have been exposed to a mind numbing
amount of testimony about an aquifer system described as the Pierce Gulch Sand Aquifer.
We have heard it described as robust and dynamic. We have been told of extensive
modeling to document the water bearing qualities of this presumed aquifer system.
3
Yet the proponents of this system can not tell us in any detail where the water comes
from, nor where it goes to, and how much there really is. Mr. Ed Squires, chief
hydrologist for M3 Eagle has testified that it's not even M3's responsibility to determine
where the water comes from and goes to! Mr. Fereday referred to the issue of recharge
and discharge as a "RED HERRING". We believe the issues of recharge and discharge
creates a huge uncertainty in the very models used to predict draw downs that will surely
occur to thousands of wells between M3 proposed development and the Boise River. We
want to be sure that Mr. Fereday's "RED HERRING" is not somewhere near the bottom
of our wells!
The conceptual model for the Pierce Gulch Sand Aquifer assumes that a large portion of
the outflow goes to the Payette River Basin. That theory is based in large part on
"connecting the dots" between two data points some 18 to 23 miles apart! That sort of
great uncertainty in the conceptual model leads to similar uncertainty in the detailed
model that ultimately tells us the nearby wells in the upper aquifers will not be
significantly harmed. When serious questions were raised by NACGUA and IDWR
staff about the feasibility of the discharge going to the Payette, it was stated by M3 Eagle
expert witnesses that it really doesn't matter where the discharge goes! Later in the
hearing Mr. Squires and Mr. Utting both testified that a model set has been made with a
no -flow boundary simulating no water going to the Payette basin, and it really didn't
make much difference in predicted drawdown values. However we were never shown
any documentation of that model set.
Mr. Squires has testified that in his career he has only seen a couple wells actually going
dry due to water levels declining. That seems a bit odd in light of several personal
testimonies we have heard during these hearings that involved dry wells just in the past
few months. Mr. Squires has also testified that any potential drawdown in the shallower
aquifers above the Pierce Gulch Sand Aquifer will not be caused by pumping from the
Pierce Gulch Sand Aquifer. We would beg to differ on this important point, as we are
not at all convinced that pumping large quantities of water from the Pierce Gulch Aquifer
will not negatively affect the 2,000+ wells with senior water rights between the Boise
River and the M3 Project.
4
We understand that there are areas in hydrogeology that are not completely predictable
despite many improvements in computer modeling and instrumentation, but we would
suggest that gravity is not one of the unknowns!
As identified in exhibit #16, pages 32 & 33; prepared by Hydro Logic, Inc. on
11/26/2008 titled Modeling Of Ground -Water Flow In The Pierce Gulch Sand Aquifer:
Five Models: History, Updates, and Predictions Of Impacts Caused By Pumping At The
M3 Eagle Planned Residential Community Ada County, Idaho states in section M3
Model; Prediction of Impacts: "Because the model was not directly calibrated to the
shallow aquifer, these draw down predictions can only be considered an approximation".
"These predictions can only serve as guidelines until long term monitoring is
implemented". "Direct monitoring of the shallow aquifer (currently in process) will
likely be a much better indication of how the shallow aquifer responds to pumping from
the Pierce Gulch Sand Aquifer". Continuing on page 33 in the Section titled M3 Model:
Overview Of Results. "However, because the M3 model was not calibrated to aquifers
other than the Pierce Sand Gulch Aquifer, it cannot be used to accurately predict aquifer
response from pumping in any aquifer besides the Pierce Gulch Sand Aquifer.
Additional aquifer testing (to generate calibration data) followed by specific calibration
for the Willow Creek Aquifer, the shallow unnamed aquifer and aquifers in the Payette
River Valley would be necessary to use the M3 model for predictions in these aquifers".
Based on M3 Eagle's and Hydro Logic Inc's own technical reports and testimony in these
hearings they have essentially admitted that they do not have any predictions and degree
of certainties as to the impact on the majority of the 2,000+ well owners that draw their
water from shallower depths above the presumed Pierce Gulch Sand Aquifer.
We believe there is potential for significant adverse affects to our senior water rights and
that there is insufficient data or evidence that M3's proposed withdrawals will not
conflict with the public interest as defined by Idaho Code 42-202B(3), and as required by
Idaho Code 42-203A.
5
Dr. Dale Ralston, one of the pre-eminent groundwater experts in the Northwest has
provided expert reports and testimony in these hearings regarding serious doubts about
M3's technical conclusions due to many flaws, errors and uncertainties in the conceptual,
analytical, and numeric models developed by M3 Eagle defining the Pierce Gulch Sand
Aquifer. In his hydro geologic analysis of the M3 Eagle Site dated January 2009, Dr.
Ralston states that "I have not been able to find either geologic depositional information
or geologic information from wells to support the presumption that the Pierce Gulch Sand
Aquifer extends to the northwest of the M3 Eagle site beyond the Willowbrook Irrigation
well". He goes on to state in the same document "I believe that postulated ground -water
flow through laterally continuous sand aquifer from the Boise River valley to the Payette
River valley is not supported by field data. Thus I believe that the drawdown values
predicted either by the analytical methods or the numerical model has a high degree of
uncertainty". In his March 31, 2009 memo to the North Ada County Groundwater Users
Association, Dr. Ralston states "in my opinion, the conclusions within the IDWR staff
memo are closely aligned with my comments. The summary statement in my November
6, 2008 memo is as follows (per page 5); I conclude that the characterization of the target
aquifer system, including a pre -development water balance, has not been complete
enough to support an analysis of impacts from full project development." Dr. Ralston
continues "The IDWR staff memo (Exhibit #50) provides additional detail relative to the
hydro geological conceptual model, the prediction of groundwater flow, development and
operation of the numerical and prediction of water -level responses. In each case Mr.
Owsley and Mr. Vincent raised questions relative to the completeness and accuracy of the
M3 Eagle information provided in various Hydro Logic Inc reports".
In short, the work done by Dr. Dale Ralston and the staff hydro geologists at IDWR
mirrored the same points of concern regarding assumptions, inconsistencies, inaccuracies,
and errors in the data collected and used for different models defining the aquifer
underlying the north Ada County foothills. We believe based on a close scrutiny of the
M3 Eagle data and expert testimony that we have heard in these hearings from a number
of geologists, engineers and other scientists, that there is serious and credible doubt
regarding the ability of the Pierce Gulch Sand Aquifer to produce large quantities of
water on a long term basis without causing injury to thousands of wells in the area with
6
senior water rights whether they are in the upper or lower aquifer as defined by Mr.
Squires and the other M3 Eagle expert witnesses.
In these hearings there has been a lot of testimony outlining the fact that the actual usage
and demands will be significantly less than 23.18 cfs being applied for. Under oath Dr.
Steve Holtman testified that the average water use for the project at build out would be
9.0 cfs or 5.8 million gallons per day...why then is M3 Eagle asking for almost 15
million gallons per day? Regardless of their claims to justify this astounding number, the
fact remains that the water right application is for 23.18 cfs. Should the Department
provide such large margins when actual beneficial use appears to be less than 10 cfs?
We believe that the Hearing Officer and the Department should also be looking at the
amount of other water right applications and their cumulative cfs in queue before the
decision on the M3 Eagle water right application is rendered. Our experts, Norm Young
and Paul Drury determined that there was over 90 cfs applied for in the Boise Valley in
front of the M3 Eagle application (Exhibit 821). And this did not include a single
domestic well! In an interagency report by the U.S. Bureau of Reclamation and the Idaho
Dept of Water Resources Planning Bureau dated January 2008, titled: A Distributed
Parameter Water Budget Data Base for The Lower Boise Valley (Exhibit 217) on page
94, identifies the following "over the course of an average year in the Boise Valley as a
whole, there is an aquifer storage deficit of about 73 kaf ". This document goes on to
state on page 95 that net groundwater recharge -discharge balance in areas associated with
municipal supply wells where groundwater discharge is concentrated in urban centers
results in large net ground water losses. Even without accounting for the combined
withdrawals of all new residential wells that will come on line with natural growth rates,
we could have a fully appropriated basin with no room for additional growth of existing
cities or other planned communities in the future if much of the current queue along with
M3 Eagle is approved.
We are concerned that with the large groundwater withdrawals needed to supply the M3
Eagle development there will be draw down effects on the existing aquifer which will
harm existing well owners.
7
And while Idaho code provides some remedy for a senior water right owner that is
harmed by a junior pumper, our concern lies in the unpredictable and non-objective
nature of the "reasonable pumping level" language that is employed in contested dry well
circumstances. This becomes critical when a large group of citizens with private wells
find themselves in the impact area of high capacity wells like M3 Eagle, and each case is
based on a subjective process that is open to such a wide range of interpretations. With
the potential risk that existing wells will be affected by the M3 Eagle water right we ask
the Department to create a more objective standard with language that creates certainty
and protection for the individual well owner in the impact area whose property value and
quality of life may be severely impacted.
In the matter of application for permit number 63-32576 we the Protestants ask the Idaho
Department of Water Resources to consider following what has been previously
identified in an "Order to Dismiss":
Idaho Code section 42-202 refers to an applicant for a public water right to be a
"municipal provider". M3 Eagle LLC is a proposed planned community that is not
located in, or contiguous to the City of Eagle. M3 Eagle LLC has not applied for or been
approved for any status as a planned community, incorporated city or any other municipal
function within Ada County. M3 Eagle has testified that they currently are not and do
not intend to become a municipal water provider. Therefore, we would ask that the
Hearing Officer strictly consider current Idaho Code in determining the legal viability of
M3 Eagle LLC's application for a water right as a municipal provider before this key
decision is rendered. It would appear that how the Idaho Department of Water Resources
chooses to define a municipality could result in the Department inadvertently casting
itself into the role of the key public entity determining winners and losers on key issues
such as where and how future growth will occur, who will benefit, who will be negatively
impacted, what is the proper mitigation for those claiming harm, and what competitors
may be precluded.
8
By virtue of a non -phased, large magnitude decision on this water right, IDWR may be
unintentionally fostering more land and growth speculation of these types of large
planned communities.
In the matter of application for permit number 63-32576 we the Protestants ask the Idaho
Department of Water Resources to consider the following that has been previously
identified in an Order to Dismiss:
To date M3 Eagle LLC has not provided the financial information that is required of an
applicant attempting to obtain a municipal water right as stated in Idaho Code Section 42-
203A. We believe the intent of this statute in this case is to put the burden of proof on
the applicant M3 Eagle to show the State of Idaho and the Hearing Officer that they have
financial resources, financial commitments and capability to successfully finance,
develop and put to beneficial use the groundwater owned by the State of Idaho.
M3 has provided virtually no documentation demonstrating financial wherewithal and is
completely lacking in satisfying this important burden of proof. The economy, capital
markets in general and real estate markets in particular have dramatically and negatively
changed since M3 filed its application in 2006 and may stay impaired for some time.
IDWR and interested parties have no idea how these conditions may have or will impact
M3's financial capabilities. Other events outside of M3's control such as severe or
protracted general economic conditions or poor performance of other investments in the
pension plan supplying M3's equity capital may impact M3's ability to finance or
complete the project as envisioned. It is important that the citizens of Idaho and the Idaho
Department of Water Resources know who it is doing business with. M3's financial
viability, financing sources, capability, and contingency plans and how each may be
impacted by continued stressed economic conditions should be thoroughly understood.
The internal unaudited selective financial statements provided to IDWR are for M3 Eagle
LLC and not the parent company M3Companies. Why? IDWR and the Protestants and
the public need a comprehensive understanding of who we may be entering a long term
relationship with.
9
M3 Eagle needs to provide detailed certified audited financial information for the parent
company as well as financing and operating plans and contingency plans and proof of
financing commitments demonstrating capability to reasonably complete a project or
portion of a project of this magnitude, as well as the potential impact on the community.
We believe that IDWR should not grant any water right to M3 Eagle for a term longer
than M3's ability to demonstrate by providing written irrevocable financing commitments
from reputable financial institutions in an amount and for a term adequate to complete
whatever portion, if any, of the requested water right IDWR may choose to grant.
M3 Eagle LLC is requesting a water right for a 30 year residential development plan,
when the department should only be considering a water right amount for M3 that they
can put to beneficial use in the reasonably foreseeable future in accordance with Idaho
Code 42-202B(3). While this provision was enacted for the purpose of assisting a city or
municipality in its long term planning, it has in reality turned out to be an imperfect
statute that creates more problems than it was meant to solve. Some of the unintended
consequences can be speculation on the part of developers of large planned communities
like M3 Eagle, or the chaos that follows an entity that is awarded this type of water right
and then is not able to complete its 20 to 30 year plan, as in the recent case of a non -
municipal entity like the bankrupt Tamarack Resort in Donnelly, Idaho.
M3 has stated the need for a full water right appropriation under the 1996 future needs &
planning horizon statute to assist in the economic viability of their planned community.
They have not demonstrated other than for speculative economic purposes the need for
the entire 23.18 cfs for the 1st or 2nd or 3rd or 4th phase of their project. M3 has testified
that they will be building in 5 phases over the 30 year build out planning horizon. M3
has testified to the fact that as each phase is completed they will convey that water right
amount and associated water supply system to the City of Eagle for the Developer and
City to determine its use on the M3 Eagle property as well as other project areas (refer to
Exhibit # 58). In our judgment the pre -annexation agreement between the City of Eagle
and M3 Eagle LLC has many loopholes for allowing the use of M3 water right to be used
on other properties outside of the M3 development area.
10
M3 has stated under oath in these hearings that they will confer any water rights they may
acquire or be permitted to the City of Eagle with the completion of certain aspects of their
development per their pre -annexation and development agreement with the city of Eagle
(Exhibit 58). We have also heard under oath the testimonies of former Eagle City
Council member Scott Nordstrom and Stan Bastian in their assertions of the same
understanding. But when asked under oath about who will bear the responsibilities and
liabilities that will also be conferred to the citizens of the city of Eagle for the costs of
long term monitoring sites as well as costs of mitigation for senior water right owners
that may be injured as a result of M3 Eagle pumping, neither M3 Eagle or former council
members Nordstrom or Bastion could provide an answer. This would leave one to
believe a large cost and liability may be awaiting future council members and the citizens
of Eagle.
As we stated at the opening day of these hearings in April, the intention of our group has
been to work with all parties in an open and honest matter to attain a practical way for
current well owners, and the M3 Eagle development to go forward in a way that serves
both, with injury to none. When we filed our protest paperwork, we stated that we would
be willing to resolve our protest with M3 Eagle if they could offer up competent,
unbiased and peer reviewed evidence to show that M3's groundwater withdrawals would
not injure our senior water rights. In the same public document we offered to resolve our
protest if a combination of well monitoring, and phasing of groundwater withdrawals of
no more than 5 cfs were granted at any one time. This type of a resolution model has
worked for several other large developers as they worked to mitigate differences with
well owners in the North Ada County area. Why not with M3?
In summary, we are not convinced that the underlying aquifers in north Ada County are
characterized adequately enough to understand key factors like where and how much
recharge is taking place, where and how much inter -aquifer communication impact there
is, and how much long term capacity there will be for well owners of both shallow and
deep wells. We believe the Department has done a great job with the human and
technical resources available to present the problems of so many unknown aspects of the
aquifers in this area.
11
We appreciate the opportunity to have presented information that we believe is important
for the Department to consider, and that we believe is relevant and important in the
protection of not only the senior water rights of the 37 protestants, but for the good of,
and protection of, the several thousand well owners in north Ada county that depend on
their wells to provide water to sustain their homes and livelihoods every day.
Thank you.
North Ada County Groundwater Users Association
Isl /s/
David J. Head and John L. Thornton
938-8508 939-8574
12
MEMO
State of Idaho
Department of Water Resources
322 E Front Street, P.O. Box 83720, Boise, Idaho 83720-0098
Phone: (208) 287-4800 Fax: (208) 287-6700
Date: March 2, 2009
To: Gary Spackman, Hearing Officer
From: Dennis Owsley and Sean Vincent, Hydrology Section, State Office
cc: Rick Raymondi
Subject: Application for Water Right 63-32573
Overview
M3 Eagle, LLC (M3) is planning to construct a 7,153 unit planned community
development on property the company owns in North Ada County. M3 has contracted
with HydroLogic, Inc. (HLI), a Boise -based hydrogeologic consulting firm, to conduct an
investigation of the area in order to determine the potential for developing a ground -water
supply to support the planned community. According to HLI, all of the major municipal
supply wells and many irrigation wells within the greater Eagle -Star -M3 area derive their
water from the target, regional aquifer. M3 proposes to further develop the aquifer by
installing up to fifteen water supply wells within the southwest portion of the property.
M3 is seeking a water right with a maximum diversion rate of 23.18 ft3/sec (cfs).
The primary conclusions based on our review of the data and reports submitted in
response to the September 12, 2008 Order Authorizing Discovery and Schedule Order,
are as follows:
• A highly productive sedimentary aquifer exists beneath a portion of the M3
property.
• The stratigraphy beneath the M3 site is complex, consisting of a thick sequence of
coarse and fine grained sediment layers that pinch out and are faulted.
• Hydrologic boundaries and recharge mechanisms are not well defined for the
target aquifer.
• The long-term sustainability of the aquifer beneath the M3 property is difficult to
assess; some lines of evidence suggest that it may be limited.
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 2 of 27
• Despite remaining uncertainties, the work that was commissioned by M3 has
significantly improved our understanding of the hydrogeology in North Ada
County.
• The ongoing North Ada County Hydrogeologic Investigation will help reduce the
uncertainty.
Introduction
This memorandum has been prepared in response to the request for staff memorandum
dated December 8, 2008 in the matter of applications to appropriate water No. 63-32573
in the name of M3 Eagle, LLC (M3). The following information was requested:
1. A full analysis of the methods of gathering data, the data presented, and results of
the aquifer tests or other tests or modeling contained in the information submitted
by the parties.
2. A secondary review of any review and analysis of the original documents
submitted by the parties.
3. Presentation and analysis of additional data available to Department staff to
enhance the hearing officer's understanding of the hydrogeology and aquifers in
the vicinity of the proposed appropriations of water.
4. Conclusions about the impacts on other water users and aquifers caused by
pumping of ground water as proposed by the application to appropriate water no.
63-32573.
5. Any analysis of M3 Eagle LLC's demographic and economic modeling and
forecasting.
1) Request #1-- A full analysis of the methods of gathering data, the data presented,
and results of the aquifer tests or other tests or modeling contained in the
information submitted by the parties.
HLI has collected, analyzed, and reviewed a significant amount of data in an attempt to
characterize the aquifer beneath the M3 property on behalf of the applicant. The
following sections summarize our review of HLI's aquifer characterization work.
a) Subsurface Exploration: Well Drilling and Geophysical Logging
HLI drilled four exploratory test wells (TW#1, TW#2, TW#3, and TW#4) on M3
property, with depths ranging from 672 to 900 feet below ground surface (Figure
1). All four test wells were completed with multiple monitoring ports to facilitate
water level measurements and water quality sampling at various depths within the
aquifer. Geophysical data (resistivity and natural gamma) were collected in each
of the test wells. Composite diagrams that summarize well construction,
geophysical, geologic, water chemistry, and water level data were developed for
the M3 test wells and six other nearby wells.
2
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 3 of 27
C.,am co.
Approximate M3 Eagle Boundary
SVRi;6
Flack Corral G'
M2 TV;:r3
M3 11Vg2
Blg Gulch SItock
M3-rW;4
S`/PR-9,
hila Gulch Stock
Eagle.
Figure 1. Approximate locations of wells on the M3 property.
A review of the composite diagrams indicates that the stratigraphy of the area is
complex, consisting of alternating layers of sand, silt, gravel, and clay. The
Pierce Gulch Sand (PGS) Formation has been identified by HLI beneath the
southern half of the M3 property. Previous investigators have defined the PGS as
a thick sequence of arkosic sand with interbedded units of silt, clay, and gravel
(Othburg and Stanford, 1992). Where saturated, the PGS forms an aquifer that is
referred to by HLI as the Pierce Gulch Sand Aquifer (PGSA). The PGSA is the
aquifer targeted for development in this water right application.
b) Surface Geophysical Investigations
HLI commissioned magnetometer and seismic profiling surveys on and around
the M3 property. The purpose of these investigations was to obtain additional
stratigraphic information beneath the area of investigation.
The magnetometer survey was conducted by BSU in 2006, with the results
interpreted by Dr. Spence Wood. Wood identified two NW/SE trending "major"
faults that transect the M3 property (Figure 2) and determined that sediments
beneath M3 extend to a depth of more than 3,000 ft (Wood, 2007). Wood also
identified several other off-site faults with the same NW/SE orientation.
3
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 4 of 27
The seismic survey was also conducted by BSU during the summer of 2006. The
objectives of the survey were to define the shallow (<1,000 ft deep) sedimentary
section and to delineate aquifers, the deeper volcanic bedrock, and structural
faulting. After acquisition and attempted analysis of data from several locations,
it was decided to terminate the investigation based on poor data quality (Bradford,
2006). Therefore, no significant information was obtained from the seismic
survey.
c) Geologic Cross -Sections
Four geologic cross-sections were developed by HLI based on geophysical and
geological data collected from deep wells in the area. The cross-sections extend
from the M3 property to the Boise River and from the City of Star to Garden City.
In general, the four cross-sections represent the PGSA as a laterally extensive,
approximately 300 -foot thick section of sand that dips to the southwest.
Observations concerning the stratigraphy depicted on the cross-sections are as
follows:
• The cross-section that bisects Big Gulch does not show the fault between
TW#1 and TW#4 that was identified in surface geophysical work contracted
by HLI (Wood, 2007). The offset from this fault could account for, at least in
part, some of the differences in elevation of the tops and bottoms of the
various strata that are represented as uninterrupted. The identification of
faults is important for the characterization of the hydrogeology because faults
often affect hydraulic communication between hydrostratigaphic units.
• It is difficult to distinguish the PGSA from the "undifferentiated alluvial
aquifers and aquitards" in UWID test wells along the Boise River. Based
upon geologic and geophysical data shown on the cross-sections, there is a
lack of fine-grained sediments that define the top of the PGSA under the M3
property. The absence of a thick, laterally continuous confining layer
provides a mechanism for hydraulic communication between the PGSA and
overlying undifferentiated sediments.
• The stratigraphic profile of SVR#7 (the pumping well for a nine day aquifer
test conducted on the M3 property) is not included on the cross-section that
bisects Big Gulch. If included, the cross-section would require modification.
• The stratigraphic and geophysical logs for TW#4 do not show a strong
correlation with the depiction of the mudstone unit drawn in the cross-section
that runs from TW#3 to the UWID State and Linder well.
4
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 5 of 27
•
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on Mars aM geophysical logs
/•,1.* -- -._f.:..T._, �' Appmlomata bun locatbn indicated by magnetometer survey
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n.,•• .••^ ;, :•.•" ®tlagea Una nlmagnnamelereuagy.
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- �f tydl�Q tc. "Inc _ _, • M3 Enke land ifs, r =+, ,'•
ro%: detailed geokcgic mapping In Paul area is atm Garr/ens (1993) a , .y
Figure 2, Mapped faults on and near the M3 property (Reproduced from Wood, 2007).
5
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 6 of 27
• The base of the PGSA is drawn at different elevations on the two cross-
sections in which TW#4 stratigraphy is shown. Also, the top of the PGS in
the UWID State and Linder well is at a different elevation in the two cross-
sections that transect this well.
In summary, the above observations demonstrate that the delineation of the
hydrostratigraphy based on available geophysical and geologic data is a detailed,
difficult, and subjective undertaking. Moreover, it is unclear based on our
analysis of the presented data whether the PGS is a distinct, laterally continuous
layer, as conceptualized by HLI, or if it possibly merges with overlying
undifferentiated sediments basinward and/or is hydrologically compartmentalized
by faults. The contribution of basin margin faults to hydrogeologic uncertainty
was previously identified in a study that was conducted for the Treasure Valley
Hydrologic Project:
"In addition to complexity inherent in deposition and erosion, a series of
major faults bisect the stratigraphic section along the northern basin margin.
The hydrologic impact of these faults is poorly understood, but they are likely to
be an important influence on ground water flow in the Boise -area aquifers."
(Hutchings and Petrich, 2002, p. 2)
d) Water Level Data
During the past three years, HLI has conducted two synoptic mass measurements
in North Ada County and has instrumented wells to collect routine water levels in
a network of wells on and near the M3 property. The following sections
summarize the water level data collection and analysis performed by HLI.
i) Mass Measurements
During the summer of 2006, HLI collected 167 water level measurements in the
greater M3 area. Location and elevation data were also collected at each well
with a GPS unit and used to develop a water elevation contour map for the PGSA.
The data and contour map were presented in a technical memorandum submitted
to the Department that suggests that ground water flows to the west underneath
the M3 property and northwest toward the Payette River after leaving M3 (HLI,
2007b). According to HLI well completion data, water levels used to create this
contour map were collected from wells within the PGSA, the Willow Creek
Aquifer, and in "undifferentiated alluvial aquifers".
A second mass measurement was completed during June and July of 2007 to
refine the assessment of ground water direction in the PGSA. The 59 wells
selected for this mass measurement were a subset of the PGSA wells that were
measured in the 2006 mass measurement, along with 16 additional wells that were
chosen to provide additional control points for determining ground water flow
direction in the PGSA. Twenty-eight of the wells had wellhead elevations
surveyed to the nearest 0.01 ft prior to the measurements. The mass measurement
6
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 7 of 27
data were submitted to the Department as a technical memorandum which
included an updated water level contour map. The updated map suggests that the
ground water flow direction beneath the M3 property is to the west, and the flow
direction is northwest toward the Payette River after leaving M3 (HLI, 2008c).
Observations concerning the mass measurement data and updated water level
contour maps are as follows:
• The contour map shows that only four wells west of the Ada/Canyon County
line were used to determine the northwest regional flow direction. Of these
four wells, two (Rio Lobo and Shalako) are located within the same section
and the elevations and locations of the other two (Zigler and Caldwell Test
Well #19) were not surveyed. The scarcity of surveyed control points west of
the Ada/Canyon county line creates uncertainty in the determination of the
regional flow direction.
• The Zigler well is the only control point in the Payette River valley. Well
completion data for this well was not included in the HLI submittal (HLI,
2008c). It has not been established that the PGSA is present at this location.
• The water level for the Caldwell Test Well #19 that is posted on the updated
contour map is 2,450 feet above mean sea level (ft -nisi). The only water level
measurement reported for this well is 2,442 ft-msl and this measurement was
collected in 2005 rather than in 2007. In addition, the data submitted by HLI
indicates that this well is "above the PGSA" (HLI, 2008c). These
considerations suggest that the data point should not be relied upon for
determining ground water flow direction in the PGSA.
• Use of water levels that were collected during the irrigation season adds
uncertainty to the determination of ground -water flow direction.
• The intersection of the geologic contact between the PGSA and the Willow
Creek Aquifer and surficial sediments on the M3 property was treated as a no-
flow/barrier boundary in the initial development of ground water contours
with a commercially available contouring program (Surfer®). The existence
of this flow barrier helps explain water level and water chemistry differences
between the PGSA and the Willow Creek Aquifer. However, the flow barrier
that was used for contouring abruptly stops approximately three miles to the
northwest of the M3 property, allowing PGSA water to flow north and merge
with ground water in the Willow Creek Aquifer. The basis for terminating the
no-flow/barrier boundary is unclear based upon the information that was
submitted to the Department.
• A previous study (Wood, 2007) indicates that the PGS outcrops along the
southern bluffs of the Payette River Valley. These PGS outcrops are
unsaturated with no visible springs or other evidence of ground water
7
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 8 of 27
discharge. The HLI conceptual model does not include an explanation of
where and how the PGSA discharges into the Payette River Basin Aquifer.
In summary, available water level data clearly indicate a west ground water flow
direction in the PGSA beneath the M3 property. The determination that the
regional flow direction is northwest toward the Payette River is less convincing,
however, because of the scarcity of surveyed control points and an incomplete
hydrogeologic conceptual model.
ii) Routine Measurements
In addition to mass measurements, HLI has installed data loggers to collect water
levels on a regular basis. Thirteen wells (four with multiple observation ports)
currently are equipped with data loggers to monitor different levels within the
PGSA. Data submitted to the Department spans back to July of 2006 for some of
these wells.
A figure summarizing data logger measurements from nine of the PGSA wells
was submitted to the Department as part of the SVR#7 aquifer test report (HLI,
2009, Figure 46). Observations related to this figure are as follows:
• Although presented on the figure, water levels in the Kling domestic well are
not discussed in any of the HLI submittals. It appears from inspection of the
figure that the Kling domestic well did not fully recover from the Kling
irrigation well aquifer test that was conducted in January 2007.
• Comparison of the water level fluctuation patterns allows the wells to be
grouped. Wells in the first group include the State and Linder monitoring
well, TW#1, and the Kling domestic well (Group 1). The second group
includes TW#4, SVR#7, SVR#9, TW#2, and TW#3 (Group 2).
Distinguishing characteristics of the two different water level trend patterns
are as follows:
o The seasonal fluctuation seen in Group 1 wells is nearly an order of
magnitude greater than the fluctuations seen in Group 2 wells. For
example, the seasonal fluctuation was approximately 13 feet in TW#1,
but was only 1.5 feet in TW#3 is approximately 1.5 feet.
o Responses to "hydraulic events" (April 2007, June 2007, August 2007,
and May 2008) are apparent in the hydrographs for Group 1 wells but
are not apparent in the Group 2 hydrographs.
• The NW/SE trending normal fault identified by Wood (2007) separates the
two well groups and potentially accounts for the different water level
fluctuation patterns.
8
3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
Page 9 of 27
• Over the past three years, the water levels in the Group 2 wells have a distinct
downward trend. This trend is similar to the results obtained from a water
level trend analysis that was conducted by the Department (Appendix A).
Downward trends are not apparent in Group 1 wells, possibly because of
greater water level fluctuations and incomplete data records.
• The hydrograph for the Big Gulch Well was not included in Figure 46 even
though this well had the greatest drawdown among the observation wells
measured during the SVR#7 aquifer test.
In summary, water levels collected with data loggers on the M3 property over the
past three years have provided valuable information regarding water level
fluctuations beneath the site. Analysis of these data reveals two distinct patterns
of water level fluctuations in the PGSA. The patterns are different on each side of
a mapped normal fault. Knowledge of the hydrologic significance of basin
margin faults appears to be critical to understanding the hydrogeology in the
vicinity of M3.
e) Aquifer Testing
i) Kling irrigation Test
HLI conducted two constant rate aquifer tests on the M3 property. The first test
was conducted in the summer of 2007 using the Kling irrigation well, a 408 -foot
deep well which, according to HLI, is completed in the upper 109 feet of the
PGSA. The Kling irrigation well was first rehabilitated and then pumped at 900
gallons per minute (gpm) for 50 hours while monitoring the water levels in the
pumping well and six nearby observation wells. Noteworthy items related to the
Kling irrigation well aquifer test are as follows:
• Drawdown was only observed in the pumping well and the closest observation
well, TW#1, a multi-level monitoring well with four PGSA monitoring zones.
Although the response to pumping from the upper PGSA was first measured
in the deeper PGSA zones, the upper zone at TW#1 had the greatest
drawdown at the end of the test (HLI, 2008b).
• Based on the analysis of the pumping well test data, HLI's estimate of aquifer
transmissivity in the region of the pumping well is 39,000 gallons per day per
foot (gpd/ft). Because of well construction issues, HLI feels that the
transmissivity estimate may be unrealistically low (HLI, 2008b, p. 215).
• Water level data were collected in the Kling domestic well (see Figure 46 of
HLI, 2009), but were not discussed in the write-up for the aquifer test
analysis.
• A fault lies between the pumping well and the non -responding observation
wells. Although HLI modeled this fault as a no-flow/barrier boundary in their
computer-aided analysis of aquifer test data, they seem less certain of its
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impact in concluding "A no flow boundary could, in theory, have affected
responses in the lower part of the aquifer" (HLI, 2008b, p. 206).
• HLI recommended that an aquifer test lasting at least a week be conducted
using a properly designed and constructed high capacity well (1,000 to 2,000
gpm) to better characterize the nature of the aquifer beneath M3 (HLI, 2008b,
p. 215).
In summary, although of limited duration and despite well construction issues, the
Kling irrigation well aquifer test provided valuable information regarding aquifer
properties under this portion of the property and highlighted the potential
importance of a NW/SE trending fault on water level declines caused by pumping
in the PGSA.
ii) SVR#7 Aquifer Test
The second HLI constant rate aquifer test was conducted in March of 2008.
SVR#7, a Spring Valley Ranch well completed in the PGSA on M3 property, was
pumped at approximately 900 gpm for nine days. The purpose of this test was to
collect on-site hydrogeologic data to further characterize the PGSA and to
evaluate possible constraints that would impact the execution of a longer duration
aquifer test. The following observations are based upon our review of the SVR#7
aquifer test report (HLI, 2009):
• Measurable drawdown was reported in eight of the 13 wells monitored during
the test. Drawdown at the end of test ranged from 1.71 feet in a well
approximately 845 feet from the pumping well to 0.09 feet in a well
approximately 11,660 feet (2.2 miles) from the pumping well.
• Two well completions in the shallow "unnamed fluvial sand aquifers" were
monitored during the test. Drawdown was measured in the closest shallow
well completion (TW#4, Zone 3), which is approximately 4,500 feet from the
pumping well, but not detected in the more distant shallow well completion
(TW#1, Zone 5), which is approximately 11,000 feet from the pumping well.
• Small but "measurable" drawdown was noted in the Little Gulch stock well
and SVR#9, at distances of 9,740 and 11,660 feet from the pumping well,
respectively (HLI, 2009, Tablel). Drawdown was not "measurable" in either
the Kling irrigation well, which is 9,908 feet away from the pumping well, or
in any of the monitoring zones at TW#1, which is 10,916 feet from the
pumping well. In relation to the pumping well, the Kling irrigation well and
TW#1 are on the opposite side of the "major" normal fault which is Located
between TW#1 and TW#4.
• Drawdown plots were analyzed to estimate aquifer properties (transmissivity
and storage coefficient) beneath the site. Transmissivity estimates range from
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180,000 to 580,000 gpd/ft, with an average value of 420,000 gpd/ft. The
average storage coefficient estimate is 3 x 10-3.
There is an increase in slope on the semi -logarithmic plot of drawdown versus
time for the Big Gulch stock well approximately 6,000 minutes (-4 days) into
the test (HLI, 2009, Figure 24). An increase in slope is characteristic of the
cone of depression encountering a no flow/barrier boundary (Driscoll, 1986;
p. 231 and USER, 1995, p. 251). HLI instead attributes the slope increase to a
declining regional aquifer water level trend, which is a plausible concept.
Unfortunately, a plot of trend -corrected drawdown is not presented for the Big
Gulch stock well. Our calculations indicate that the regional trend (Figure C-
2) does not fully account for the increase in slope that was observed on the
semi -logarithmic plot for the Big Gulch stock well.
The Big Gulch stock well had not fully recovered from pumping at the end of
the 12 -day water level recovery monitoring period. Although there are other
possible explanations, the fact that water levels did not recover to the pre -
pumping levels suggests that the aquifer may be of limited extent (Driscoll,
1986, p. 259). HLI attributes incomplete recovery to the declining regional
water level trend but the residual drawdown after correcting for the declining
trend was still approximately 0.5 feet at the end of the water level recovery
monitoring period.
• Although the duration of this test exceeded most of the previous aquifer tests
in the area, a longer duration test (-30 days) with additional monitoring in the
shallow aquifers, would stress a greater portion of the aquifer, facilitate
evaluation of hydrologic boundaries, and provide data for better estimating the
long term impacts of pumping.
In summary, the aquifer testing conducted by HLI demonstrates that the PGSA
beneath the M3 property is highly productive. The results from the nine -day test
are reliable because of careful planning and data collection. Several lines of
evidence suggest that the aquifer may be bounded by faults. An aquifer test of
longer duration could be used to evaluate the hydrologic significance of the fault.
f) Aquifer Test Analysis
HLI submitted a report to the Department in August of 2008 titled "Re -Analysis of
16 Aquifer tests in the Greater Eagle -Star Area of North Ada County, Idaho."
The report summarizes the original testing and reanalysis of 16 aquifer tests
previously conducted in the greater Eagle area by various entities. Of the 16
reanalyzed tests, HLI suggests that 10 were conducted in the PGSA, one was
conducted in an overlying shallow alluvial aquifer, and the remaining five were
conducted in various other vicinity aquifers.
Based on reanalysis of the data, HLI concludes that the PGSA in the vicinity of
M3 is a single, continuous, heterogeneous, highly productive aquifer with
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transmissivity estimates ranging from 40,000 gpd/ft to 800,000 gpd/ft. The
average transmissivity (210,000 gpd/ft) is higher than the high end of the range of
previous estimates (100,000 to 200,000 gpd/ft). The differences between the
original estimates and the revised estimates are attributable to HLI's
determination that the PGSA is much thicker than estimated by previous
investigators. HLI estimates that the PGSA thickness is typically on the order of
275 feet, and over 500 feet is some areas (HLI, 2007b, p. i).
Other noteworthy conclusions made by HLI are as follows:
• The PGSA in the vicinity of M3 is the same regional aquifer that is relied
upon as the primary water supply for the cities of Eagle, Star, and Meridian
(p. ii).
• The Willow Creek Aquifer that underlies the northeast portion of the M3
property is described as "A highly permeable, but isolated and bounded, sand
unit with limited recharge" (p. 239).
• "Potential well yields from the Willow Creek Aquifer are high but we expect
that long term production could be severely constrained by small amounts of
recharge and a bounded system that would significantly increase water -level
drawdowns and pumping lifts" (p. 240).
• The Sandy Hill Aquifer northeast of Eagle is described as "Another highly
permeable, isolated and bounded sand unit with limited recharge" that has
high short-term well yields but long-term production that "would be severely
limited by small amounts of natural recharge" (p. 240).
In summary, the compilation and reanalysis of data from 16 previous aquifer tests
represents a significant undertaking on the part of HLI. The reanalysis yielded an
updated hydrogeologic conceptual model and revised estimates of aquifer
properties for vicinity aquifers. HLI concludes that other vicinity aquifers have
limited long-term sustainability owing to hydraulic isolation and limited on-site
recharge. In our opinion, the possibility of limited long-term sustainability for the
PGSA also cannot be discounted based upon currently available data.
g) Geochemical Investigations
In 2007, HLI concluded that the chemistry of PGSA ground water is
distinguishable from the chemistry of ground water from wells completed in the
Willow Creek Aquifer (HLI, 2007a). This distinction was based primarily on
differences in total dissolved solids and nitrate concentrations.
A more in-depth geochemical analysis of historic and recently acquired ground
water chemistry data was submitted to the Department on January 20 of this year
(Glanzman and Squires, 2009). Samples were collected from approximately 40
wells and springs across the region and analyzed for field parameters, major ions,
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and selected trace elements. Major ion chemistry was plotted on Trilinear (Piper)
diagrams for each sample location. Findings from the 2009 geochemical analysis
include the following:
• "PGSA groundwater originated almost exclusively from ancestral Boise River
surface water" (p. 4).
• Wells Located in the Payette River valley near Emmett are not hydraulically
connected to the PGSA (p. 9).
In summary, historical and newly acquired water quality analyses have been
interpreted to indicate that there is a difference between the water chemistry in the
PGSA and the water chemistry in surrounding aquifers. The data also have been
interpreted to indicate that PGSA water originated almost exclusively from the
ancestral Boise River. Department staff believe that an isotopic study of ground
water in the PGSA could help to evaluate the determination that modern day
recharge sources are not contributing recharge to the PGSA.
h) Ground -water Flow Modeling
HLI contracted with Pacific Groundwater Group (PGG) to develop a ground
water flow model that could be used to predict impacts caused by pumping in the
PGSA at M3. PGG developed a seven layer model that comprises approximately
80,000 active cells and covers 520 square miles in the area surrounding M3. A
report summarizing the model and its development, including a review of existing
models in the area, was reviewed by Department staff (HLI, 2008a). The
following are observations regarding the M3 modeling report:
• HLI conducted a review of existing models in the area and attempted to
incorporate the knowledge and experience gained from these efforts into the
new M3 model.
• Two versions of the model were developed. One version (Tmatch) was
forced to honor the range of available transmissivity estimates and the second
version (Hmatch) used transmissivities outside the range of available
estimates in order to achieve a better calibration. Both versions were first
calibrated to "quasi -steady state conditions" (water level measurements
collected in 2007) and then to water levels measured during three constant rate
aquifer tests (Lexington Hills, Eaglefield, and SVR#7).
• Simulated underflow directly into the PGSA at the southeast corner of the
model is conceptualized to be seepage from the Boise River and the New
York Canal (HLI, 2008a, p. 33). The idea that seepage from the modern day
Boise River and its canal system recharges the PGSA seemingly is at odds
with HLI's conclusion that the original source of PGSA water is almost
exclusively the ancestral Boise River (Glanzman and Squires, 2009, p. 4).
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• The simulated discharge area for the PGSA is the Payette River Valley.
• The model representation does not include a NW/SE trending fault between
TW#1 and TW#4 that was identified by Wood (2007) using surface
geophysics.
• The model was run to predict long-term impacts from pumping on the M3
property and influences from a reduction in seepage from the New York
Canal. Model predictions are discussed in our response to the fourth bulleted
item in the Request for Staff Memorandum, which starts on page 20 of this
memorandum.
• One of IDWR's ground water modelers reviewed the modeling report and
identified the following three concerns: (1) the use of the general head
boundary at the inlet of the model should be used cautiously; (2) having two
different versions of the model doesn't necessarily bracket uncertainty, as
asserted by HLI on page 13 of the M3 modeling report (HLI, 2008a); and (3)
the M3 modeling report indicates that the model calibration was sensitive to
vertical hydraulic conductivity but the sensitivity of the model predictions to
this input are not discussed (Appendix B).
In conclusion, a ground -water flow model based upon HLI's hydrogeologic
conceptual model has been developed for prediction of hydrogeologic impacts.
As described elsewhere, the basis for several important elements of the HLI
conceptual model has not been provided. A potentially significant hydrogeologic
feature (i.e., a fault) has not been incorporated into the model.
2) Request #2 -- A secondary review of any review and analysis of the original
documents submitted by the parties.
The North Ada County Groundwater Users Association (NACGUA) hired a
hydrogeologic consultant to provide a technical review of the data and reports submitted
by HLI. Ralston Hydrologic Services, Inc., conducted the review and reported the
findings in two technical memoranda, an expert report, and a supplement to the expert
report based upon review of a recently submitted geochemistry report. The following
sections summarize the reviews that were submitted on behalf of the protestants.
a) Initial Hvdro2eolo2ic Analysis. dated November 6. 2008.
This memo is organized into four sections. The first section provides a summary of
the hydrogeologic information provided to date on behalf of the applicant. The
second section is an analysis of the HLI' s hydrogeologic conceptual model. The third
section is review of HLI's analysis of the ground water flow system. The fourth
section is a review of HLI's analysis of the likely impacts from full project
development.
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The first section provides quotes from the characterization report submitted by HLI
(HLI, 2007a) but does not make any conclusions. The primary conclusions from the
other three sections of the memo are as follows:
"I conclude that there is not sufficient evidence to support the presumption of
lateral extent and continuity of what has been called the Pierce Gulch Sand
Aquifer from the M3 Eagle site to the Payette River. Also, additional work is
needed to assemble and present the available information to support the
presumption of lateral extent and continuity of what has been called the Pierce
Gulch Sand Aquifer from the M3 Eagle site to the presumed recharge area in the
Boise River drainage." (p. 3)
"I conclude that there is not sufficient evidence to support the presumption
that ground water flows in the manner and quantity described within what has
been called the Pierce Gulch Sand Aquifer from the presumed recharge area in
the Boise River drainage to the presumed discharge area in the Payette River
drainage." (p. 4)
"1 conclude that the characterization of the target aquifer system, including a
pre -development water balance, has not been complete enough to support an
analysis of impacts from full project development." (p. 5)
b) Review of 2008 HvdroLo2ic. Inc. Report, dated November 26, 2008.
The second memo is a review of the report entitled "Re -Analysis of 16 Aquifer
Tests in the Greater Eagle -Star Area of North Ada County, Idaho" (HLI, 2008b).
The one paragraph memo concludes:
"I found no information that would change the conclusions stated in my
November 6, 2008 report on the M3 Eagle development. My November 6, 2008
report is an accurate statement of my professional conclusions relative to the
project."
c) HvdroseoloRic Analysis of the M3 Eagle Site, Expert Report Prepared for the
North Ada County Ground Water Users Association. dated January 2009.
This expert report is the most comprehensive review conducted on behalf of the
protestants. Four HLI reports are reviewed (HLI, 2007a; HLI, 2008a; HLI,
2008b, and HLI, 2008c). The expert report includes a summary of hydrogeologic
information developed by HLI and identifies issues with the conceptual and
numerical models.
The 2009 review provides the following conclusions:
"1 conclude that there is insufficient evidence to support the assumption
that the Pierce Gulch Sand Aquifer is laterally continuous from the Boise
River Valley to the Payette River Valley." (p. 9)
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"1 conclude that the 2007 water -level data provide insufficient evidence
that ground -water flow occurs from the Boise River Valley to the Payette
River Valley." (p. 10)
"In my opinion, the inability to have the M3 Eagle model reproduce
aquifer water levels using the calculated transmissivity values indicates that
problems exist in the model formulation (such as boundaries) and/or with the
input data sets. 1 do not believe that development of two parallel numerical
models is a reasonable solution to the problem. Also, 1 do not believe that
general agreement between the "Hmatch" and "Tmatch" indicates that the
numerical model is a reasonable representation of the hydrogeologic system.
Questions come to mind whenever a numerical ground -water model is
used to predict impacts on a time scale that greatly exceed the data set used
for transient calibration. This is defiantly (sic) the case with the M3 Eagle
numerical model. The data sets used for transient calibration were short (30
and 7 days) and the stress potentially did not cause water -level changes at all
aquifer boundaries. Prediction of long-term pumping effects (such as 50
years) involves stressing a much larger portion of the model and likely a
number of boundaries. This creates major uncertainty relative to reliability of
the drawdown values predicted using the model." (p. 12)
"The hydrogeologic investigation of the M3 Eagle site has resulted in an
improved knowledge of the ground water condition under the site. However,
my concerns about development impacts from the project are focused on large
scale issues rather than on-site impacts. Specifically, I believe that postulated
ground -water flow through a laterally continuous sand aquifer from the Boise
River valley to the Payette River valley is not supported by field data. Thus, I
believe that the drawdown values predicted either by analytical methods or
the numerical model have a high degree of uncertainty." (p. 13)
Three alternative pathways to allow the M3 Eagle project to move forward were
also proposed:
1. Formulate an administrative/legal solution that might involve the
development of the project under a phased water right.
2. Conduct additional studies to further define the hydrogeology of the
PGSA and update the M3 ground water flow model accordingly.
3. Validate the predicted impacts using model boundaries and aquifer
properties that were developed as part of the Treasure Valley
Hydrologic Project. It is further suggested that the Treasure Valley
ground -water flow model might be altered to achieve this purpose.
d) Hydro2eoloRic Analysis of the M3 Ear; le Site: Supplement #1 Comments from the
Review of the Geochemistry Report, dated January 2009.
This memo provides a summary of the geochemistry report prepared in support of
the M3 water right application (Glanzman and Squires, 2009). This memo
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provides a general overview of the geochemical investigation and the following
primary conclusion:
"The geochemical investigation of the general M3 Eagle site has
resulted in an improved knowledge of the ground -water conditions in the
area. However, the Glanzman and Squires (2009) report does not include
information that addressed the major hydrogeologic questions raised in my
expert report (Ralston Hydrologic Services, Inc., 2009) ".
3) Request #3 -- Presentation and analysis of additional data available to Department
staff to enhance the hearing officer's understanding of the hydrogeology and
aquifers in the vicinity of the proposed appropriations of water.
Understanding and quantifying recharge rates to the targeted aquifer are critical in order
to evaluate its long term sustainability because without recharge, groundwater
withdrawals at even a modest rate will result in aquifer mining. The following sections
summarize our concerns relative to the conceptualization and simulation of PGSA
recharge.
a) Recharge Sources
The current water budget for the Treasure Valley aquifer system (Urban, 2004, Table
8) indicates that over 80% of the annual recharge returns to the Boise River, limiting
the amount available to the deeper aquifers. These numbers agree with conclusions
from a previous investigation:
"recharge rates to the deeper regional aquifers are limited" and "most
recharge occurring in shallow aquifer zones does not reach lower zones."
(Petrich, 2004, pgs. 19 and 21, respectively)
HLI postulates that leakage from the Boise River and New York Canal are significant
sources of recharge to the PGSA (HLI, 2008a, p. 28). According to their conceptual
and numerical models, the PGSA is recharged from Boise River seepage and from
New York Canal losses upstream from Cole Road. A discussion of the potential
contribution from each of these sources is presented below.
i) Boise River
HLI' s estimate of losses from the Boise River is based on information presented
in reports that were prepared for the Treasure Valley Hydrologic Project (Urban
and Petrich, 1998; Urban, 2004). As explained in the report documenting the M3
ground -water flow model:
"Urban reported a Boise River loss to the underlying ground -water system
of 1 5, 500 ac-ft/yr (about 21 cfs) during 1996 and 77,000 ac-ft/yr (about
110 cfs) during 2000. Both sets of measurements were made over the
reach upstream from Capital Bridge." (HLI, 2008a, p. 28).
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However, our analysis of available information indicates there is considerable
uncertainty in the seepage estimates and suggests that the river reach between
Lucky Peak and Glenwood Bridge may actually be gaining during certain times of
the year. Our review of USGS gage data during the non -irrigation season
between 1999 and 2008 (IDWR, 2009a), for example, indicates that the river
between Lucky Peak Reservoir and Glenwood Bridge gained approximately 14
cfs on average (Table 1). Similarly, a seepage survey conducted by the USGS
(1997) during November of 1996 indicated an overall gain of 52 cfs for this same
reach. In addition, some water level contour maps show groundwater flow toward
the Boise River through the reach between Lucky Peak and Glenwood Bridge
(e.g., Dion, 1972 and Newton, 1991).
Table 1. Estimates of the Boise River gains and losses for the Lucky Peak to
Glenwood Bridge Reach.
IDWR, 2009 USGS, 1997
Urban and
Petrich, 1998
Estimated Gain
or Loss (cfs)1 14 52 -21
' Gains are indicated by positive values and losses are indicated by negative values.
Urban, 2005
-110
As previously discussed, geochemical characterization work supports the concept
that the water currently being withdrawn from PGSA wells in the M3 area is from
the river but available information suggests that it was recharged a long time ago.
As expressed in Glanzman and Squires (2009, p. 4), PGSA ground water
"originated almost exclusively from ancestral Boise River surface water". The
idea that the PGSA water was recharged a long time ago is supported by the
conclusions of previous investigators:
"contemporary seepage from rivers and/or irrigation diversions is not the
primary source of recharge for most deeper regional aquifers." (Hutchings
and Petrich, 2002, p. 58)
And
"This finding indicates that ground water in the deeper aquifers entered the
flow regime prior to atmospheric testing" (Hutchings and Petrich, 2002, p. 58)
And
"Residence time estimates in the regional aquifer system ranged from
thousands to tens of thousands of years. The youngest waters entered the
subsurface a few thousand years ago and were found along the northeastern
boundary of the basin, adjacent to the Boise foothills." (Petrich, 2004, p.19).
However, our preliminary calculations of travel time using M3 model inputs
suggest that water entering the regional aquifer from the southeast corner of the
M3 model domain would reach the M3 property in a relatively short amount of
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time, approximately an order of magnitude less than the estimated age of the
water in the regional aquifer system adjacent to the Boise foothills (Petrich,
2004). Additional data collection and analysis are needed in order to resolve the
apparent discrepancy between the HLI conceptual and numerical models.
ii) New York Canal
Only a portion of the total length of the New York Canal is upgradient from the
general head boundary in the M3 ground -water flow model that represents
recharge into the PGSA from river and canal seepage. The measured loss from
the upgradient reach (between Diversion Dam and Cole Road) was 24 cfs in
March of 1997 (Berenbrock, 1999). Information that could be used to estimate
the percentage of the canal leakage that would recharge the PGSA is lacking.
While there is uncertainty regarding whether and how much seepage occurs
upgradient from the PGSA recharge area identified by HLI, a bigger technical
question for Department staff is how the water that seeps out of the Boise River
and New York Canal could directly recharge the PGSA, as simulated by the M3
numerical model. According to HLI (pg. 33), "The model estimates that about
102 to 115 cfs (about 65 to 74 mgd) flows into the Pierce Gulch Sand Aquifer
from areas lying to the southeast of the model domain. This water is believed to
originate as seepage from the Boise River and the New York Canal." HLI has not
presented geologic data to support the existence of the PGSA beneath the Boise
River or provided an explanation of how the canal and river losses end up
recharging the PGSA instead of the shallow alluvial system.
b) Water level trend analysis
The possibility that the PGSA did not fully recover following the SVR #7
constant rate test raised a concern to Department staff regarding the ability of the
targeted aquifer to sustain pumping at the rate proposed in the water right
application. This concern led us to investigate water level trends in other vicinity
wells.
Water level data from the IDWR water level database for the 16 historically
monitored wells in North Ada County were analyzed for determination of water
level trends (Appendix A). The available data for these wells spanned various
time -frames and had a variety of measurement frequencies. To facilitate
comparison of trends, the data were filtered so that the measurements generally
are from the same time of year (the first measurement between 3/01 and 05/31)
and the records span a similar time -frame (generally 1996 — 2003). Although
subject to interpretation, the producing formation was determined to be the PGSA
for eight wells, undifferentiated sediments for four wells, shallow alluvium for
one well, and Terteling Springs mudstone for the remaining three wells.
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Significant findings from the trend analysis are as follows:
• All eight of the PGSA wells displayed a negative or declining trend. Rates
of decline range from 0.21 ft/year to 0.49 ft/year, with an average of 0.27
ft/year. The rates of decline in the PGSA are consistent with those
observed between 2006 and 2008 in PGSA monitoring wells that lie north
of the fault identified between TW#1 and TW#4 (HLI, 2009, Figure 46).
• There was a slight increase over the same time -frame in all three wells that
are located within the Dry Creek Valley.
• The water levels also trended upward in the shallow alluvial well.
• All four undifferentiated wells exhibited declines within the range that was
observed for the PGSA wells. These declines are consistent with the
finding of a previous investigator that "ground water level declines were
observed in the areas between northwest Boise and Eagle." (Petrich,
2004, p. 14).
• The water level trends observed in the four wells completed in
undifferentiated sediments are not distinguishable from those for PGSA
wells.
• The results of this water level trend analysis were checked with more
recent data for 10 of the wells. This effort generally confirmed the results
of the earlier analysis, and indicated that the average water trend for the
area (not including Dry Creek) is approximately -0.29 ft/year.
In summary, our review of available water level data indicates that water levels in the
PGSA near M3 are declining and suggests that current aquifer discharge rates exceed
current recharge rates.
4) Request #4 -- Conclusions about the impacts on other water users and aquifers
caused by pumping of ground water as proposed by the application to appropriate
water no. 63-32573.
Pumping induces flow to a well by creating a cone-shaped depression in the
potentiometric surface. Pumping in high capacity wells for the M3 development will
induce drawdown in hydraulically connected aquifers. The questions that need to be
addressed are (a) how significant will the impacts be and (b) what water users will be
impacted?
a) How significant will the impacts be?
HLI first presented calculations of the predicted impacts on water levels in the Year -One
Progress Report (HLI, 2007a). An image well analysis (see for example, Freeze and
Cherry, 1979, p. 330) was performed to estimate drawdown caused by six supply wells,
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each pumping at 1,000 gpm. The drawdown was computed for a 90 -day pumping period,
using the high aquifer transmissivity and storage coefficients estimates to represent a
"best case" scenario, and the low aquifer transmissivity and storage coefficients to
represent a "worst case" scenario. It is worth mentioning that the use of a lower
transmissivity is indeed more conservative for locations proximate to the pumping center
but it is not conservative for distant locations because the cone of depression caused by
pumping in a low transmissivity aquifer is steeper but not as extensive.
Approximately two miles south of the M3 property, at the intersection of Floating Feather
Road and Highway 16, the image well analysis predicted drawdowns of approximately
four feet for the best case and eight feet for the worst case (see Figures 9 and 10 in HLI,
2007a). Using the same general methodology but substituting aquifer properties from
HLI's SVR#7 aquifer test (transmissivity = 400,000 gpd/ft, storage = 0.0045), IDWR
staff calculated drawdown for a revised pumping rate of 4,500 gpm and a pumping period
of 50 -years (the same time -frame evaluated with the M3 model). Our calculation is
conservative in the sense that it neglects to consider recharge but not -conservative
because it assumes that the aquifer extends infinitely in the southwest (down -dip)
direction. The predicted drawdown at the intersection of Floating Feather Road and
Highway 16 is approximately 18 feet after 50 years of pumping (Figure 3).
It is common practice to predict long-term aquifer performance using time -frames that
are less than 50 years when applying analytical methods which are based on the Theis
(1935) nonequilibrium solution. The Idaho Department of Environmental Quality, for
example, recommends that a one-year time -frame be used to project long-term drawdown
for public water supply wells. The use of a shorter time -frame can be appropriate, in part
because the Theis (1935) solution is premised on the assumption that there are no sources
of recharge. With all other input unchanged, application of the image well analysis using
a pumping period of one year instead of 50 years results in a similar water level
drawdown pattern but the drawdowns are of lower magnitude. The calculated drawdown
after one year of pumping at 10 cfs is approximately 8 feet at the intersection of Floating
Feather Road and Highway 16.
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Pest Case Scenario - Thus Solution
T - 400,000 welt
S-00645
t . s0yrs
Q-10 ds
Legend,
e.;. 4� • Protestant_ wells
DEV_NAME
M-3 Eagle
Major Roads
canals
Figure 3. Predicted drawdowns using image well analysis after 50 years of pumping
at 10 cfs from the PGSA beneath M3 property.
As previously discussed, HLI contracted the development of a ground water flow model
that was used to predict impacts from the pumping of high capacity wells on the M3
property. The "Hmatch" version of the model indicates that 50 years of pumping three
wells at a combined total rate of 10 cfs will cause drawdown in the PGSA that ranges
from approximatley 30 feet on the property to around five feet at the intersection of
Floating Feather Road and Highway 16 near Eagle (Figure 4).
The NW/SE trending fault identified between TW#4 and TW#1 through magnetometer
studies was not included in any of the impact assessments performed by HLI or the
Department. Based on HLI's aquifer test analysis, this fault potentially represents a no -
flow boundary, which could significantly alter the predictions by causing more
drawdown on the pumping side of the fault and less drawdown on the non -pumping side.
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Figure 14
Simulated PGSA
Drawdown After 50 Years
(NPW wells)
- New Hmatch Model
M3 Eagle Model
JZ0705
® NPW Wells
itt nsm0 •11500 GPM
® Model Observation Wells
Drawdown In feet
(5 a conbu mM1rv,n
0 Feet5.000 N
PO G -
b 2006 Onlaeholo A
Figure 4. Map showing the results of predicted drawdown from the Hmatch version o
the M3 ground water flow model (HLI, 2008a, Appendix B, Figure 14).
b) Impacts to water users
i) Well impacts
Impacts to water levels in wells completed in the PGSA are inevitable. Drawdown could
be expected to reduce or eliminate discharge from flowing artesian wells and may require
that pumps be installed (HLI, 2008b, p. 241). Non -flowing PGSA wells may have to be
deepened or replaced, depending on the current depths of the wells and their proximity to
the site.
Shallow aquifers overlying the PGSA appear to have a delayed hydraulic connection
with the PGSA based upon the conclusions of investigators:
"Clay layers within and above the regional Pierce Gulch Sand Aquifer cause
confined -aquifer responses to short-term pumping, but do not eliminate hydraulic
connection to the upper water -bearing zones under longer-term pumping." (HLI,
2008c, p. 239).
And
"interference in shallow wells could possibly approach the same levels as those
predicted for wells completed in the Pierce Gulch Sand Aquifer after an extended
period of pumping." (HLI, 2007a, p. 9).
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3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
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And
"We feel fairly certain that there is a "long term" hydraulic connection in the
sands of the upper delta sequence (Figure 10); however, local lenses of mudstone
in that section may prevent short-term detection of well -drawdown responses. It
may take months to decades for large drawdowns to propagate through the
seemingly continuous section of interbedded sand and thin muds." (Squires and
Wood, 2001, p. 14).
Based on the existence of a delayed hydraulic connection between the PGSA and
overlying aquifers, pumping in the PGSA is likely to eventually impact the majority of
area well owners. Impacts to wells completed in aquifers below the PGSA have not been
investigated.
ii) Boise River impacts
Potential impacts to the Boise River were not quantified as part of the analysis in support
of the M3 water right application. According to HLI:
"The Boise River receives discharge from the Pierce Gulch Sand Aquifer and a
shallow sucial aquifer via the upward vertical ground water gradients that
prevail in the Eagle area." (HLI, 2007a, p. 13)
Based on the above finding, pumping in the PGSA at M3 would cause a reduction in
ground water discharge to the river. The magnitude and location of these impacts has not
been determined.
5) Request #5 -- Any analysis of M3 Eagle LLC's demographic and economic
modeling and forecasting.
IDWR staff have not analyzed the demographic and economic modeling and forecasting.
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Summary and Conclusions
On behalf of the applicant, HLI has collected and analyzed a significant amount of
hydrogeologic data over the past three years. The information has been compiled,
analyzed, and submitted to the Department in a series of reports and memoranda for
distribution to the public via our website. The information and analyses have been
extremely beneficial to developing an improved understanding of the hydrogeology in
M3 area.
HLI has shown that an aquifer beneath the M3 site is capable of producing substantial
quantities of water. HLI also has developed conceptual and numerical models of the
hydrogeology and applied the models to predict impacts to area well owners.
Development of this water right by M3 is predicted to result in water level declines on the
order of five to 15 feet near the City of Eagle assuming the water budget and aquifer
boundary conditions of the M3 model. Significant questions still remain regarding
aquifer recharge and sustainability. Impacts to surface water users have not been
evaluated.
The primary conclusions based on the review of the data and reports submitted in
response to the September 12, 2008 Order Authorizing Discovery and Schedule Order,
are as follows:
• A highly productive sedimentary aquifer exists beneath a portion of the M3
property.
• The stratigraphy beneath the M3 site is complex, consisting of a thick sequence of
coarse and fine grained sediment layers that pinch out and are faulted.
• Hydrologic boundaries and recharge mechanisms are not well defined for the
target aquifer.
• The long-term sustainability of the aquifer beneath the M3 property is difficult to
assess; some lines of evidence suggest that it may be limited.
• Despite remaining uncertainties, the work that was commissioned by M3 has
significantly improved our understanding of the hydrogeology in North Ada
County.
• The ongoing North Ada County Hydrogeologic Investigation will help reduce
uncertainty.
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References
Berenbrock, C., 1999. Streamflow Gains and Losses in the Lower Boise River Basin, Idaho,
1996-1997. USGS Water -Resources Investigation Report 99-4105.
Bradford, J. H., 2006. Seismic Reflection Profiling in the Big Gulch Area. Summary report
submitted to HydroLogic, Inc.
Dion, N.P., 1972. Some Effects of Land Use Changes on the Shallow Ground Water System in
the Boise -Nampa Area, Idaho. Idaho Department of Water Administration Water
Information Bulletin No. 26.
Driscoll, F. G., 1986. Ground Water and Wells, Second Edition.
Givens Pursley, 2008. M3 Eagle, LLC -- Second Amended Application for Water Right Permit.
Submitted to Idaho Department of Water Resources, February 1.
Glanzman, D. and Squires, E., 2009. Ground Water Geochemistry of Wells in North Ada County
Area of Idaho. Technical Memorandum to Gerry Robbins, M3 Eagle, LLC.
HLI — See HydroLogic, Inc.
Hutchings, J., and Petrich, C., 2002. Ground Water Recharge and Flow in the Regional treasure
Valley Aquifer System: Geochemistry and Isotope Study. Idaho Water Resources
Research Institute Research Report IWRRI-2002-08.
HydroLogic, Inc., 2009. A Nine -Day Constant -Rate Discharge Aquifer Test of the SVR #7 Test
Well in Big Gulch, North Ada County, Idaho.
HydroLogic, Inc., 2008a. Modeling of Ground -Water Flow in the Pierce Gulch Sand Aquifer:
Five Models: History, Updates, and Predictions of Impacts Caused by Pumping at the
M3 Eagle Planned Residential Community Ada County, Idaho. November 26.
HydroLogic, Inc., 2008b. Re -analysis of 16 Aquifer Tests in the Greater Eagle -Star Area in
North Ada County, Idaho. Consultant Report submitted to the Idaho Department of
Water Resources, July 4.
HydroLogic, Inc., 2008c. Surveyed Water Level Measurements of Wells in Northern Ada
County/Eagle Area, for the M3 Eagle Hydrogeologic Characterization. Technical
Memorandum and accompanying maps addressed to Dennis Owsley, IDWR, March 17.
HydroLogic, Inc., 2007a. M3 Eagle regional Hydrogeologic Characterization North Ada, Canyon
and Gem Counties, Idaho, One Year Progress Report, May 4.
HydroLogic, Inc., 2007b. Water Level Measurements from 167 Wells in the Greater M3 Eagle
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accompanying maps, addressed to Sean Vincent, IDWR, March 7.
IDEQ — see Idaho Department of Environmental Quality
IDWR — see Idaho Department of Water Resources
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3/2/2009 Staff Memorandum for Water Right Application No. 63-32573
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Idaho Department of Environmental Quality, 2007, Testing Guidance for Determining
Adequate Yield of New Public Drinking Water System Wells (Draft), April, 11 pp.
Idaho Department of Water Resources, 2009a. Historical Water Right Accounting Data Annual
Reports. Available online at www.idwr.idaho.gov.
Newton, G., 1991. Geohydrology of the Regional Aquifer System, Western Snake River Plain,
Southwestern Idaho. U.S. Geological Survey Professional Paper 1408-G.
Othburg, K. and Standford, L., 1992. Geologic Map of the Boise Valley and Adjoining Area,
Western Snake Plain, Idaho. Geologic Map Series, Idaho Geologic Survey.
Petrich, C., 2004. Treasure Valley Hydrologic Project Executive Summary, Idaho Water
Resources Research Institute Research Report. Boise, Idaho.
Petrich, C. and Urban, S., 2004. Simulation of Ground -water flow in the Lower Boise River
Basin, Idaho Water Resources Research Institute Research Report IWRRI-2004-02,
Boise, Idaho.
Squires, E. and Wood, S., 2001. Stratigraphic Studies of the Boise (Idaho) Aquifer System Using
Borehole Geophysical Logs With Emphasis on Facies Identification of Sand Aquifers.
Report to the Treasure Valley Hydrologic Study, Idaho Department of Water Resources.
Theis, C.V., 1935, The Relation Between the Lowering of the Piezometric Surface and the
Rate and Duration of Discharge of a Well Using Groundwater Storage, Trans.
Amer. Geophysical Union, v. 16, pp. 519-524.
Urban, S., 2004. Water Budget for the Treasure Valley Aquifer System for the Years 1996 and
2000, Treasure Valley Hydrologic Project Research Report, Idaho Department of Water
Resources.
Urban, S. and Petrich, C., 1998. 1996 Water Budget for the Treasure Valley Aquifer System,
Idaho Department of Water Resources Research Report.
USBR — see United States Bureau of Reclamation
United States Bureau of Reclamation, 1995. Ground Water Manual. A Water Resources
Technical Publication, United States Bureau of Reclamation.
USGS — see United States Geological Survey
United States Geologic Survey, 2009. National Water Information System: Real-time Water
Data for USGS Gage Station 13206000 Boise River at Glenwood Bridge, Years 1996 and
1997 and USGS Gage Station 13202000 Boise River near Boise, Years 1996 and 1997.
Wood, S., 2007. Qualitative Interpretation of Magnetic Anomalies and Progress Report on
Geologic Mapping in the Foothills North of Eagle, Ada and Gem Counties, Idaho.
Report prepared for HydroLogic, Inc., May 20.
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