Minutes - 2011 - City Council - 01/25/2011 - Special EAGLE CITY COUNCIL
January 25,2011
Special Meeting Minutes
PRE-COUNCIL AGENDA: 3:00 p.m. -6:30 p.m.
1. Discussion with the Urban Renewal Agency: There is a quorum of both the City Council and
Urban Renewal Agency present. Doug Racine, Scott Nordstrom, Bob Bruce, Teresa Yragui and
Jason Haas. Ryan Armbruster the Attorney for the Urban Renewal Agency speaks to the number
of Council members allowed to sit on the Urban Renewal Agency. There needs to be caution to
not have a quorum of Council sitting on the Board because you would technically have an
official meeting of the Council at the same time as the URA meeting. Discussion regarding the
request by the Agency to reduce the number of Agency members. Chairman Racine reviews the
history of the creation of the Urban Renewal Agency. Discussion of different areas of focus and
improvement that are being discussed by the Urban Renewal Agency. Harlan Mann addresses
questions regarding the original report he prepared. Continued discussion regarding what the
Urban Renewal Agency's plan is and how the agency was created. Shoushtarian would like to
see more solid planning process and implementation of what the Urban Renewal Agency wants
to do. Discussion. The Council inquires if anyone from the audience wishes to speak. Lynne
Sedlacek, a long time Eagle resident, is glad to see this meeting. She would encourage the
Agency to get their website updated with more current and helpful information. Nordstrom
states that the Agency has made a concerted effort to improve the website and hopes that she will
find it more helpful from this point forward. Foad Roghani, a business owner in Eagle, admits
that he is lacking knowledge regarding the Urban Renewal Agency and has several questions
regarding their role and revenue expenditures and generation. Nordstrom invites Mr. Roghani to
attend the Agency's next meeting, and also invites him to provide him with questions beforehand
and he will do his best to answer them. General discussion.
2. Ada County Sheriff's Office Monthly Report: Lt Brian Hippe reviews the monthly statistics
for December and provides a comparison of 2009 and 2010.
3. Update on State Street Transit and Traffic Operational Plan—ACHD: ACHD Staff will
provide an update to the Council regarding proposed near, middle, and long term transit and
traffic improvements on State Street/State Highway 44 between Downtown Boise and State
Highway 16. Sabrina Anderson introduces the item and ACHD Planner Lowe. ACHD Planner
Jeff Lowe reviews the planning process that has gone into State Street/Highway 44 to improve
transportation. Mr. Lowe briefly reviews short, medium and long term proposed improvements.
Discussion of funding options. Anderson briefly discusses the MOU that will be brought
forward soon. Both Ada County Highway District's and the City of Eagle's legal counsel have
reviewed the document.
4. Valley Regional Transit: Kellie Fairless. Director Kellie Fairless reviews the history of Valley
Regional Transit and their mission. Detailed discussion of the public outreach scheduled for the
upcoming year to find out what services the users desire to be offered. Review of current
services provided and proposed services. Semanko urges VRT to conduct a survey of the
members of our community. PowerPoint attached to minutes.
5. Mayor and Council Reports and Concerns: Moved to the end of the agenda.
6. City Clerk/Treasurer Report: Moved to the end of I:he agenda.
7. Zoning Administrator's Report: Moved to the end of the agenda.
8. Public Works Director Report: Moved to the end of the agenda.
9. City Attorney Report: Moved to the end of the agenda.
Page I
K:\COUNCIL\MINUTES\Temporary Minutes Work Area\CC-O1-25-I lspmin.doe
REGULAR COUNCIL AGENDA: 6:30 p.m.
INVOCATION-
1. CALL TO ORDER: Mayor Reynolds calls the meeting to order at 6:35 p.m.
2. ROLL CALL: HUFFAKER, SHOUSHTARIAN, SEMANKO, GRASSER. All present. A
quorum is present. A quorum is present.
3. PLEDGE OF ALLEGIANCE: Mayor Reynolds leads the Pledge of Allegiance.
4. PUBLIC COMMENT: No one chooses to speak.
5. CONSENT AGENDA:
• Consent Agenda items are considered to be routine and are acted on with one
motion. There will be no separate discussion on these items unless the Mayor, a
Councilmember, member of City Staff, or a citizen requests an item to be removed
from the Consent Agenda for discussion. Items removed from the Consent Agenda
will be placed on the Regular Agenda in a sequence determined by the City Council.
♦ Any item on the Consent Agenda which contains written Conditions of Approval
from the City of Eagle City Staff, Planning & Zoning Commission, or Design
Review Board shall be adopted as part of the City Council's Consent Agenda
approval motion unless specifically stated otherwise.
A. Claims Against the City.
B. Minutes of January 11,2011.
C. EXT-01-11 —Preliminary Plat Extension of Time for Countryland
Subdivision—Dan Richards: Dan Richards represented by Randall Whistler,
is requesting a one (1)year extension of time for the preliminary plat approval
for Countryland Subdivision, a 17-lots(12-buildable and 5-common)residential
subdivision. The 6.6-acre site is generally located '/4-mile west of Ballantyne
Road and '/4-mile north of State Highway 44 at 2556 W. State Street. (WEV)
D. Transfer of alcohol license ownership from Mai Thai Eagle to J&S
Management LLC dba Baan Thai: Shannon Robnett representing J & S
Management LLC. is requesting the transfer of ownership of the beer, wine and
liquor license. The license will be used at 78 Eagle River Drive Ste. 165. All
State and County licenses have been obtained. (TEO)
E. Beer& Wine license—TWI Company dba: Tanglewood Cooking Gallery:
TWI Company dba: Tanglewood Cooking Gallery is requesting a beer and wine
license for off premise consumption. The license will be used at 1580 E. State
Street Ste. 103. All State and County licenses have been obtained. (TEO)
Huffaker requests item SC be removed.
Shoushtarian moves to approve the remainder of the Consent Agenda items 5 A,B,D and
E.Amended Consent Agenda. Seconded by Huffaker. Huffaker: AYE; Shoushtarian:
AYE; Semanko: AYE: Grasser: AYE: ALL AYES:: MOTION CARRIES
C. EXT-01-11 —Preliminary Plat Extension of Time for Countryland Subdivision—Dan
Richards: Dan Richards represented by Randall Whistler, is requesting a one(1)year extension
of time for the preliminary plat approval for Countryland Subdivision, a 17-lots (12-buildable
and 5-common) residential subdivision. The 6.6-acre site is generally located '/4-mile west of
Ballantyne Road and '/4-mile north of State Highway 44 at 2556 W. State Street. (WEV)
Page 2
K.\COUNCIL\MINUTES\Temporary Minutes Work Area\CC-01-25-11 spmin.doc
Huffaker introduces the item. Staff has recommended that the extension of time be denied as the
applicant was unable to meet the requirements of the recently adopted ordinance regarding
extensions of time. Huffaker gives the applicant the opportunity to speak to the application.
Randall Whistler 501 N. Blue Ash Boise,Idaho. Mr. Whistler states that he has been in contact
with Planner Williams regarding the new city code requirements; however he could not in good
conscience provide a detailed timeline. This is a small infill project that has faced many
challenges. It is his hope that Council will waive the timeline requirement and approve the
extension of time for one year.
Huffaker inquires as previous extensions had been granted under the old ordinance, which
ordinance is legally applicable.
City Attorney, Susan Buxton, states that because the application was previously approved under
the previous ordinance would apply. However,the old ordinance granted Council a great deal of
discretion.
Semanko seeks clarification from the applicant on certain aspects of the project. Discussion.
Huffaker moves to approve the application for the extension of time. Seconded by
Semanko. Discussion. Huffaker modifies the motion that the applicant meet with staff to
delineate the planed timeline and the timeline be circulated to the Council upon
completion. Seconded by Semanko. Discussion. ALL AYE...MOTION CARRIES.
6. PROCLAMATIONS & RESOLUTIONS: NONE
7. UNFINISHED BUSINESS:
A. Update on M3 Water Rights Application: The public is encouraged to provide comment
on this topic.
Mayor Reynolds introduces the issue.
City Attorney, Susan Buxton provides a brief overview of the issue. Attorney Buxton notes that
the City of Eagle has entered into a development agreement with M3 and that it is a legal and
binding document. Part of the development agreement requires the donation of a water system to
the City of Eagle as a condition of annexation. She also notes that representatives for Idaho
Department of Water Resources are also in attendance.
Water Resources and M3 have recently entered into a settlement agreement and the purpose
tonight is to give an update on the status of the water right application.
Bill Brownlee 533 E. Riverside Dr. Eagle,Idaho with M3 provides a handout to Council and
reviews the same via PowerPoint presentation. Copy attached to the minutes.
Semanko inquires in the development agreement 2.2E states that the developer shall transfer
water rights to the City. It doesn't contemplate an acceptance of such a thing. In addition there
is no provisions for M3 to convey the water rights to anyone other than the City. Grasser asks
what led to the change in the findings of the model.
Discussion.
Jeff Faraday, lawyer for M3 Eagle addresses the question regarding the change in the study.
Derek Baxter, an attorney for the Idaho Department of Water Resources. The Department issued
a decision that legally said that M3 is not a municipal provider under Idaho Code. The
significance of that finding is that if you are deemed a municipal provider you can develop what
is called a Reasonably Anticipated Future Needs water right(RAFN). So if you have a 30 year
Page 3
K\COUNCIL\MINUTES\Temporary Minutes Work Area\CC-01-25-1[spun doe
planning horizon, IDWR will give you a water right and allow you to develop over that 30 years.
Only municipal providers have that opportunity. Generally everyone else has to develop within a
maximum of 5 years. It is the Departments belief when looking at the statute that the Department
needs to have that municipal provider up front. The proceeding will need to be reopened, get the
additional information about the planning horizon and the information and get that up front. The
Department wants some indication of who the municipal provider will be, the agreement that has
been outlined lays out a framework for how this is gone about. It lays out a timeline of a
conversation between the Department, M3 and the City, if the City chooses to participate.
Further discussion of settlement. Semanko asks if the Department agrees that the issue about
assignment is between M3 and the City, and that IDWR has nothing to do with that. The
language in the agreement between IDWR and M3 is perplexing. Baxter states that legally
IDWR have a municipal provider before it, whoever the municipal provider may be. Semanko,
so if this is assigned to a municipal provider, who is the party before the Department? Why does
it have to be accepted. Discussion.
John Holman, Deputy Attorney General representing the Idaho Department of Water Resources.
Discussion of the language of the settlement agreement.
Semanko would like to move to waive the three minute testimony limit. No second.
Grasser and Huffaker feel that the Mayor should use his discretion if he feels the meeting is
going on too long.
John Thornton 5262 N. Sky Hi Way Eagle, Idaho. Spokesman for the North Ada County
Groundwater Users Association, which was one of the Protestants. For clarification, he wants to
make it known that they are not against the development, but they do not want to become
collateral damage of the project. The settlement process was to include the protestants, and to a
large degree they were excluded from the settlement process between IDWR and M3. They will
be meeting with the attorneys from IDWR to go over their concerns tomorrow. After the meeting
tomorrow,they would like to come back before Council to address the settlement document.
Mr. Thornton provides a copy of the settlement agreement and reviews specific areas of concern.
The amended final order is provided to Council for review. A letter dated November 11, 2010 to
IDWR from North Ada County Groundwater Users Association is provided and reviewed. The
sustainability of water is of the utmost concern. They are asking to give more of a presentation
once they have had further time to review the settlement agreement.
Kathy Penisi 3675 N. Saddleman Place Eagle, Idaho. She reads a letter on behalf of CJ
Petrovsky who was unable to attend tonight. The letter addresses the history of the Protestants
interaction with IDWR and the City of Eagle. They are concerned that the Protestants will not be
allowed to provide input. Additionally is the question as to weather it is an appropriate role for
the City of Eagle to be in the water business rather than the private provider United Water. The
previous Council made a hasty decision as they were leaving office, now you have the
opportunity by your action on this settlement agreement to change the City's course of action.
The letter is attached to the minutes.
Cathy Penisi provides her own comment. She does not feel that IDWR has acted appropriately
and the settlement agreement does not seem to be above board.
Ron Marshall, 740 Palmetto Dr. Eagle, Idaho. Mr. Marshall provides information regarding the
history of the irrigation and water system in the valley. He does not care what the hydrologists
say, there is not enough water to continue to support these large developments. What will
happen if the City takes over the water system and the aquifer fails,you would have to pump
Page 4
K\COUNCIL\MINUTES\Temporary Minutes Work Area\CC-01-25-1 Isprnin.doc
water from the system below. Mr. Marshall does not believe that the City belongs in the water
business.
Alan Smith, lives on Osprey Road. He feels the cart got before the horse. Instead of the City
applying for the water right, M3 applied. Mr. Smith reviews the Protestants claim that M3 could
not file for a municipal water rights. He would like the Protestants to have input on the
settlement agreement.
Bob Nichols 428 N. Triple Ridge Place Eagle, Idaho. He currently has a well on his property.
Mr. Nichols cautions the Council to not rush their decision. The decision should be phased in so
as to not have dramatic negative impact to surrounding wells.
Patricia Minkovich Deerfield Court Eagle, Idaho. She lives in Buckhorn Estates, there are 48
properties and about 15 signed onto the petition of protest. She agrees everything stated by their
spokespeople. She questions how IDWR will monitor several wells to ensure that existing wells
will not be compromised, how will IDWR actually accomplish this? She does not have issue
with M3,they should push to get whatever they can get. Ms. Minkovich has issue with how
IDWR handled this application.
Mr. Faraday. The issue of water sufficiency will not be heard as a matter of remand. But the
questions as set forth in the agreement will be. The question of water sufficiency as a matter of
settlement has been essentially settled between M3 and the IDWR. He feels that the Department
recognizes the sufficiency of supply. In regard to the matter of draw down, IDWR is the
appropriate entity to address the concerns that Mr. Thornton brought up. The intent of the
language of the settlement is to ensure that the City will step up and accept the water system.
Discussion.
Huffaker comments that it is important that M3 recognize the Protestants being upset about the
settlement. General discussion.
8. PUBLIC HEARINGS: NONE
9. NEW BUSINESS: NONE
5. Mayor and Council Reports and Concerns: Semanko states that he will report at the next
meeting due to the lateness of the hour.
6. City Clerk/Treasurer Report: No report
7. Zoning Administrator's Report: Discussion of changing the meeting date for the scheduled
February 3`d meeting due to a possible scheduling conflict. Council decides that they are going
to try and hold the meeting on established date and time in hopes that Council member
Shoushtarian will be able to attend.
Jeff Kunz, asks if there are any comments on the questionnaire. The Council will e-mail any
revisions to Jeff and he will present them for discussion at the February 81h meeting.
8. Public Works Director Report: No report.
9. City Attorney Report: No report.
10. EXECUTIVE SESSION:
A. Pending and Threatened Litigation: I.C. 67-2345 (f)
Mayor Reynolds introduces the issue.
Semanko moves to go into Executive Session 67-2345 (c)to conduct deliberations to acquire
an interest in real property which is not owned by a public agency, being the issue of the
Page 5
K\COUNCILUMNUTES\Temporary Minutes Work Area\CC-01-25-I I spmin.doc
assignment of the water right from M3,and 67-2345(1) to consider and advise legal
representatives in pending litigation where there is a general public awareness of probable
litigation update on the City's water right case and whatever discussions there are with
regard to that with the Department related to the M3 issue perhaps. Seconded by Grasser.
Buxton notes that we heard tonight that there may be a potential litigation issue with that
assignment situation with this M3 remand relating to the development agreement.
Huffaker AYE: Shoushtarian: AYE; Semanko: AYE: Grasser: AYE: ALL AYES:
MOTION CARRIES
Council goes into Executive Session.
Council conducts deliberations to acquire an interest in real property which is not owned by a
public agency,being the issue of the assignment of the water right from M3 and get an update on
probable litigation on the City's water right case. Discussions in regards to the Department
related to the M3 issue.
Council leaves Executive Session.
Huffaker moves to direct 1.) Bruce to attend the meeting tomorrow with IDWR and the
Protestants and follow up with some sort of an e-mail communication with Council on
what happened there. 2.)In the meantime,we as the City begin developing RAFN
information to submit to IDWR. City Attorney's are to go ahead and start preparing our
own separate water application. Second Semanko. ALL AYE...MOTION CARRIES
Council leaves Executive Session at 11:10 p.m.
11. ADJOURNMENT:
Semanko moves to adjourn. Seconded by Huffaker. ALL AYES: MOTION
CARRIES...
Hearing no further business, the Council meeting adjourned at 11:10 p.m.
Res.ectfully submitted:
I �‘`+OF..........
GL-k' •
•SHARON K. BERGMANN ? �laRA rF ;•* •
CITY CLERK/TREASURER • 0
Ptiz: o :
AP r OVED: S `•'• '
'n r• ` an
1
e�9 �An
• ES D. REYNO
AYOR
AN AUDIO RECORDING OF THIS MEETING IS AVAILABLE AT CITY HALL
UPON REQUEST.
Page 6
K\COUNCIL\MINUTES\Temporary Minutes Work Area\CC-Ol-25-lisp-run doc
This document contains a list of acronyms and definitions for terminology
related to the State Street Transit and Traffic Operational Plan.
11 I] Irrrri
Acronym List
ACHD — Ada County Highway District
BRT — Bus Rapid Transit
CAC — Community Advisory Committee
COMPASS — Community Planning Association
of Southwest Idaho
DBMMC — Downtown Boise Multimodal Center
HOV — High Occupancy Vehicle
ITD — Idaho Transportation Department
Terminology List
Bus Bay
A designated area located to the side of
the main roadway for buses to stop and
pick up and drop off passengers, without
interrupting traffic.
-0
H
us Stop Sign
Bonch
Curbside Running Way
A transit lane located near the outside curb
and used by transit vehicles and right -
turning vehicles.
ISC
rarara.,
'?LIS Curbside Running W.ay
/ / I Boston, Massachusetts
ITS — Intelligent Transportation Systems
LRT — Light Rail Transit
ROW — Right -of -Way
SH — State Highway
TAC — Technical Advisory Committee
TOD — Transit Oriented Development
TTOP — Transit and Traffic Operational Plan
VRT — Valley Regional Transit
Downtown Boise Multimodal Center
A proposed transit station in
Downtown Boise where passengers
can transfer between different modes
of transportation (i.e., bus, light rail,
cars, bicycles, walking).
Frequency
The interval of time scheduled
between the arrivals of two
consecutive buses at the same stop.
For example, the existing Route 9 on
State Street operates at 30 minute
frequency.
High Capacity Transit System
A transit system that includes one of
many bus or rail technologies, such as
bus rapid transit, light rail or heavy
rail, designed to provide frequent
service along heavily traveled
corridors.
State Street Transit and Traffic Operational Plan
Glossary of Terms
Intelligent Transportation Systems
(ITS)
Technology-based applications for
improving the safety and performance of
roadway and transit systems, such as
timed signals.
Land Use Master Plan
A long-range land -use plan for State
Street that will identify development
opportunities, TOD sites, design
principles; zoning code changes, and
pedestrian/bicycle plans.
Median Running Way
A transit lane located in the center of the
roadway and used only by transit
vehicles.
Park & Ride
A facility for transit passengers to park
theft vehicles while riding transit.
Park & Ride at State Highway
44/Edgewood cane - Eagle, Idaho
744,
NM MI or a
ma 41IP"
1 1
Ride • Boulder.
Queue Jump Lane
Right -turn lanes or separate designated
bus lanes where transit vehicles are not
required to turn right, gaining the ability
to travel through an intersection without
waiting in a queue of through vehicles.
Queue jump lanes typically operate in
conjunction with transit signal priority at
certain intersections.
GZI CJ CI)
cnCMCI)
MINE
c=r)1
Right-of-Way(ROW)
Right-of-way is a strip of land that is
reserved for public use. Examples could
be a street, road, bus lane, rail alignment,
sidewalk, or path.
Running Way
The facility or environment in which transit
operates. Mixed -traffic, median, and
curbside running ways are evaluated on
State Street.
Transit Signal Priority
An operational strategy that moves
transit vehicles through an intersection
by modifying the I signal. For example,
buses could get a green light before the
rest of the traffic.
State Street Transit and Traffic Operational Plan
What Is BRT?
BRT is a flexible, rubber -tire form of rapid transit that combines running ways, vehicles,
Intelligent Transportation Systems (ITS), stations and branding elements to improve speed,
reliability, capacity, and attractiveness of the system.
Running Way - Possible on -street running ways
include mixed traffic (used by automobiles and
buses) and exclusive transit lanes (used by buses
and possibly right -turn vehicles). Exclusive transit
lanes improve bus travel time and can be located in
the median or curbside, outer lane ofa roadway.
Vehicles - The quality and attractiveness of the
service can be improved with high-capacity, low -
floor vehicles and various door configurations.
Vehicles range from conventional buses to
modern -looking vehicles with amenities designed
to provide a "light rail -like" riding experience.
Intelligent Transportation Systems (ITS)- Transit
signal priority, automatic vehicle location systems,
and real-time traveler information can be used to
enhance the transit operations and overall passenger
experience.
Stations - Range from basic bus stops to rail -like
stations with pre -boarding fare payment, real-time
bus arrival information, and level boarding.
Branding -The creation of a brand or identity for BRT
service, separate from that of the local bus service,
helps in attracting riders.
%MAX
BRT L ogos Irom Lane TransitDistrict find Utah TransitAuthonty.
Benefits of BRT:
• Fast and Reliable - offers passengers a
quicker, more predictable trip.
• Flexible - allows multiple operators and
multiple types of service (e.g., local, BRT,
and express bus routes) in the same lanes.
• Phasing - may be deployed in phases
based on funding availability and demand.
Sources: FTA Characteristics of Bus Rapid Transit for Decision -Making, RTC Las Vegas, Lane Transit District.
State Street Transit and Traffic Operational Plan
rA RIGHT
VA LANE
RIGHT TURNS
Il OK
What Are HOV Lanes?
HOV lanes are typically dedicated for buses, carpools (two or more
occupants), vanpools, motorcycles, right -turning vehicles, and
emergency vehicles. HOV lanes can move traffic through
congested areas, resulting in travel time savings, better travel
time reliability, and improved air quality.
Key Elements of HOV Lanes
on Arterial Roadways
• Most HOV lanes operate in a
curbside lane with bus bays.
• HOV lanes work well with a
maximum HOV volume of 200 to
400 vehicles per hour (Source:
Texas Transportation Institute).
• Markings and signings help
manage the interaction between
vehicles.
• Education and enforcement
programs are critical to the success
of the operations.
Education & Enforcement Concepts:
• Brochures mailed to residences
• HOV lane performance reports
• Regulation by police
• Self -enforcement hotline
Example Arterial HOV Lanes
HOV lanes have been implemented on
arterial roadways for over 30 years in the
U.S. and Canada. Two HOV systems in place
today are shown below and operate 24 hours
a day in curbside lanes.
SR 99 HOV Project - Federal Way and Kent, WA
Phased project on 14 -mile long corridor
Highway 97 HOV Project - Kelowna, BC
Four -mile long corridor with future BRT
Sourco. B.0 Ministry of Transport
State Street Transit and Traffic Operational Plan
What is TOD?
• Higher density mixed-use development
within walking distance (about a half mile)
of transit stations.
• Attractive, walkable, sustainable
communities that allow residents to have
housing and transportation choices.
• TOD can range by the character, land use,
and density of development, as shown
here.
1rIJ.1=1 �...-
Transit Employment Center
• Large sites with a focus on office and
employment uses.
Neighborhood Transit Zone
• Small to large sites with a focus
on residential use.
Urban Town Center
• Large sites with a broad mix of uses.
Urban Neighborhood Center
• Medium-sized sites with a range of
densities; these sites focus on housing
with some office, retail, civic uses.
Enhanced Bus Rapid Transit Station
• Sites with limited development
opportunities; these sites are located
adjacent to existing neighborhoods and
development with TOD characteristics.
State Street Transit and Traffic Operational Plan
Traffic and Transit Conditions
The State Street/State Highway 44 study area from State Highway 16 to the future
Downtown Boise Multimodal Center is 14 miles long. This document contains traffic
volumes, travel times, transit service, and transit ridership information for the State
Street/State Highway 44 corridor.
Traffic Volumes
• Existing (2010) corridor daily volume: 12,000 to 39,000
• Future (2035) corridor daily volume: 20,000 to 72,000
• Annual future growth rate on the corridor: 3%
The graph below summarizes the existing and future (2035)traffic volumes.
0
00 000
co 000
20 000
Existing and Future (2035)Average Daily Traffic Volumes
.12035(7 -Lanes)';
0
t ROA( Rand
Engle Reed
2010 Existing (2-5 Lanos)I
2035 (5 -Lanes):
Store Watmay 55 P,erce Perk Lane Veterans Mernuret 23rd Street
Parkway
Travel Times
The information shown below is the average
travel time for an auto or bus to travel on State
Street/State Highway 44 between State Highway
16 and 23rd Street during the evening peak hour.
flange al sof General s of Transit Transit Travel Auto Travel
Improvements Purpose Lines HOV Lanes Time (mini Time (min)
None
Exclusive
Transit Lanes
• 1
HOV
Lanes
Seven General
Purpose Lanes
2-5 0
5
2
5 2
7 0
45 25
Primary
Bus • 28
Express
Bus • 23
Primary
Bus - 28
Express
Bus - 23
Primary
Bus• 31
Express
R,•s - 28
34
34•
28
'Auto travel time for the HOV lane could be less given the use of an
exclusive lane.
Looatlon
arfstae i r
Transit Service and Ridership
The information shown below summarizes the
existing and future transit service and
ridership forthe corridor.
Frequency
Corridor Ridership
Existing
Future
(2035)
Route 9: 30 minutes
Route 44: Daily
Route 9: 15 minutes
Route 44: 30 minutes
Three additional routes
at 15 -to -30 minutes
frequencies
State Street Transit and Traffic Operational Plan
720
(highest ridership on
ValleyRide system)
7,000 - 9,000
l'.I1l11X'IlSJ��'
ADA CGRNIY
GARY RANIY, 5111 RIII
GG f/.. --!'i
City of Eagle Police
Monthly Report December 2010
Group A NIBRS Crime*
Person Crime"
Property Crime"
Society Crime"
Total
Felony
Misdemeanor
# of Reported Crimes
80
60
40
20
1.1 11111 ■._■
0
YTD
2009
2010
Clearance
Rate 2010
YTD
2010
October November December
98 140 58.6% 22 11 12
284 297 22.9% 38 18 15
86 76 89.5% 7 4 6
468 513 42.5% 67 33 33 Group A NIBRS Crime Rate YTD
(per 1,000)
213 212 30.2% 32 13 13 2009: 219
255 299 50.8% 35 20 20 2010: 24.9
City of Eagle Population
COMPASS 2009: 21,370
COMPASS 2010 (proposed): 20,590
% Change -3.6%
--PAM—
W *an
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
1 Person
Property
Society
2009 Monthly Average
% Change 13.8%
2009 Clearance Rates
Person: 72.4%
Property: 24.6%
Society: 89.5%
Total: 46.6%
Felony: 37.6%
Misdemeanor: 54.1%
As of February 2010
Police .-Activit
Calls For Servicer (Total)
Total Response Time
Code 3$ Calls For Service
Code 3,+. Response Time
Proactive Policing+
Reports (DR's)
Arrests§
Citations
# of Incidents
2000
1500
1000
500
0
i-�
YTD 2010
2009 2010 October Nos ember December
4,127 4,133 381 324 307
7:00 7:10 7:16 6:47 7:44
88 71 6 11 9
3:02 2:56 2:51 3:22 2:32
11,677 9,651 848 781 698
1,631 1,467 135 114 96
421 364 22 21 13
1,594 808 63 97 75
���■■■�■IN■■■_
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
SI Gills For Service
Provided By ACSO/CAUAh
Proactive Policing 2009 Monthly Average
December 2010
Top Calls For Service
Burglary Alarm (29)
Auto Accident Non -Injury (18)
Attempt To Locate Reckless Driver (15)
Suspicious Vehicle (14)
Citizen Assist (12)
Attempt To Locate Drunk Driver (11)
Data obtained from New Wodd CAD. Legacy AS400. ISTARS. and m) W ebeare databases Data queued 1/11/11
Page 1 of 2
Pro ertv Crime
Vehicle Burglary
Residential Burglary
Commercial Burglary
Construction Burglary
Vandalism
Other**
Total
YTD 2010
2009 2010 October November December
32 62 18 (1 2
35 41 5 6 3
14 10 2 0 0
1 2 0 0 0
66 53 1 4 2
136 129 12 8 8
284 297 38 18 15
Construction Site Check 404 539 57 37 35
Property/Security Check 1,799 2,253 259 244 233
Traffic
Crashes
Property Damage
Personal Injury
Fatal
Total
Alcohol -Related Crashes
Traffic Stops
DUI Arrests
Moving Citations
# of Crashes
30
20
10
0
YTD 2010
2009 2010 October November December
132 135 11 20 11
72 66 10 7 8
0 1 0 0 0
204 202 21 27 19
4 8 0 0 0
6,823 4,505 337 307 275
79 81 2 3 4
778 299 28 45 37
ll �l�l� �_■ � r�
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Property Damage Personal Injury
October - December 2010
Top Crash Intersections
Highway 44 & Eagle Rd (12)
Chinden Blvd & Eagle Rd (5)
Eagle Rd & Island Wood Dr (4)
Eagle Rd & Colchester Dr (3)
State St & Highwy 55 (3)
State St & Fisher Park Wy (3)
Highway 44 & W State St (3)
Provided By ACSO/CAVith
Fatal
2009 Monthly Average
December 2010
Crashes by Time of Day
0000-0600 hrs
0600-0900 hrs
0900-1200 hrs
1200-1500 hrs
1500-1800 hrs
1800-2100 hrs
2100-2400 hrs
0
3
2
3
6
2
3
December 2010
Crashes by Day of Week
Sunday 1
Monday 6
Tuesday 3
Wednesday 2
Thursday 4
Friday 2
Saturday 1
December 2010
Top Crash Contributing
Circumstances
Following Too Close (9)
Speed Too Fast For Conditions (4)
Inattention (3)
Failed To Yield (2)
Data obtained from New World, CAD. Legacy AS400. !STARS, and rFD W ebCare databaeas
Page 2 of 2
Data queried 1/1 1/11
Cameron Arial
(208)344-9522
Cameron.Arial@zionsbank.com
The History of Idaho
Urban Renewal Law
and
The Eagle Urban
Renewal Agency
November 9, 2010
1111
Eagle Urban Renewal
➢ Background
Before and After
➢ Idaho Urban Renewal History
1. Dark Ages
2. The Renaissance
3. The Wonder Years
4. Constant Change
5. Today
How it Works
Background
What is Urban Renewal?
The redevelopment or rehabilitation of real property in a city,
usually as the result of a cooperative effort by private developers
and local government.
Urban renewal started with:
1. Property Rights
2. Organized Society
Groups fought wars over property
Victor's prize: Loser's decimated property
Rebuild city giving it new life
vision
Before and After 7
Idaho UR has many characteristics of this example.
1974— Harper 's — Boise resembled "the aftermath of a
bombing raid."
2003 — Forbes —Boise named nation's second best place for
business and careers.
So what happened777
1863 — Boise grew up beside a U.S. Army outpost
1. Boise's early economy prospered: mining, timber and later ag
2. Slowly declined due to various reasons — WW, Depression
Early-1960's — Boise suffered like many other American cities
1. The rise of the automobile
2. Population flight to the suburbs
Mid-1960's — Johnson Responds
1. "Great Society" and "War on Poverty"
a. HUD Act & New Communities Act of 1968
1965 —
1965 —
1970's
1980's
vision
The Dark Ages (conc.)
Idaho passes Idaho Urban Renewal Law
1. Idaho urban renewal is born... or is it???
2. Intended to capture federal HUD funds
Boise Redevelopment Agency — Idaho's 1st URA
1. Assemble properties for downtown mall
— Urban Renewal is largely unsuccessful under HUD
1. Housing and Community Development Act of 1974
a. CDBG program — Millions pours into cities
b. CDBG insufficient and funds start to decline
2. Harpers magazine article
— Fed funds go way — Punctuating Event
The Renaissance
1980's - "Policy Window" opens
1. "Boise Revolution" — Coalition forms, R/UDAT Report
2. Neotraditional urban design — Live, work, play community
3. Mall goes to the suburbs "where it always wanted to be."
1980's — How to fund UR is placed on city agendas
STAKEHOLDERS
STAKEHOLDERS ATTITUDE "� "` STAKEHOLDERS' POWER
Values and
Objectives
Shaping Their Adoption
Attitudes Pow er Implementation
Cooperation (C) Toward This Salience Yes (Y) Power
Internal and/or external or Opposion (0) Matter High/Med./Low No (N) Yes (Y) No (N)
Association of Idaho Cities
Urban Renewal Agencies
Land UseAttornies
Developers
Business
Public
Idaho Legislature
M ayor Kempthorne
Courts
M edia
Economy
C
C
CIO
None
City Interests
Com Redev. Eco Dev
Rational Choice- $$$
Rational Choice- $$$
Rational Choice- $$$
'O Taxes
0 Taxes
Future Office
�nterpert Law
Rational Choice - $$$
None
High
Hig h
High
High
M ed
Low
tvl ed
high
CI ed
&ow
Low
N
N
N
N
N
N
Y
Y
N
N
Y
Y
Y
Y
N
N
Y
N
N
N
Who They
Influence
Leg, Public, Media
Public, Bus, Dev,
Business, Courts
Politicians, Citizens
Citizens, Economy
Media, Politicans
Everyone
iBoise Citizens
'Everyone
Everyone
Everyone
Who
Influences
Them
Cities, M edia
Gov, Cou, Med
Courts, Gov
Gov. UR, Meida
Gov. Eco. Cou
Everyone
Everyone
Boise, Leg, Med
Lawyers, Gov
Everyone
Everyone
AY °Orr
The Renaissance
40
keg
1987 — Revenue allocation finance passed for Boise only
1988. — RAF reintroduced — For all Idaho Municipalities
1. RAF brought from other states — been used for years
vision
The Renaissance
1988 — Legislative Session
1. RAF is considered
2. Option of doing nothing is also considered
3. Strong grassroots push from local governments with UR
agencies, along with the respected expertise of Weatherby,
Harward, Moore, and Kempthorne
4. The Local Economic Development Act is passed into law
a. RAF is extended to all cities
1990 — Legislative Session
vision
1. "Boise Bill" repealed
2. All cities now under same rules
3. No agency to administer
4. Implementation power rests with the municipalities
UR agencies self regulate — Courts regulate if big concern
The Wonder Years
1988 to 1994 — LEDA is implemented by all the existing agencies and by
a number of other cities
1994 — Amendments extended RAF authority to `disadvantaged border
communities" — Coeur d'Alene, Post Falls, and Moscow
1. Agencies also begin creating more URDs within their agency
1988 to 2000 — UR largely left alone
Constant Change (cont1)
2000 — Major revisions to IURL and LEDA — time frame for filling info, URA
term of 24 years, counties get RAF, and intergovernmental agreement
required for properties outside city limits.
2002 — Comply with open -meeting law, the Public Records Act, the Ethics in
Government Act, financial reporting requirements, and close out
procedures. Agencies began creating more URDs
2003 — URA limited to the city borders (without agreement with County)
2005 — Comply with competitive public bidding law
2006 — Limit eminent domain authority for public purpose only (with minor
exceptions), re -define deteriorated or deteriorating to exclude agricultural
use, repealed 3 mill M&O levy and a 4 mill rebate by UR agencies back to
school districts
2007 — Number of bills. Only HB 79 passed — Taxing entities within URA
can't take new construction value of projects
Constant Change (cont1)
2008 — Legislative Session
1. Lifespan of URAs
2.
3.
4.
5.
Election of agency board members
Tax shift away from other taxing entities, especially
Restrictions on amending UR plans once they are enacted
Limit the term a property can be in a URA after it has been
redeveloped
6. House Bill 470
1. Supplemental Bond Levy Relief for School Districts
vision
How it Works
As pfope,rties redeY&iop..
1aix revenue increases
Property tax base is frozen when TAD is created
Last
government bodies continue to collect tax
revenue on that tax base.
How It Works (cont.)
:- Tax value of the properties is capped when the urban renewal
plan is adopted.
As the taxable value of the URA increases above the cap that
increment goes to the urban renewal agency in order to fund
public redevelopment projects within the URA.
Though funds accumulate slowly at first, urban renewal
agencies rapidly pool money over time that enables them to
fund capital projects.
Often agencies will issue low interest tax-exempt bonds
against their future revenues to fund projects sooner. This
enables the agency to leverage its future cash flows and
effectively speed up the process of redevelopment and
increase the taxable value of the URA.
Eagle Urban Renewal Areas
= 1,
, i. 4 +r "', 1* ' - •7 ice•. 1'P} � L :;\; ` `+. • :_
-if.' .5141 *,.1 . 'e. - -"�' _ . 4.
4r i t _ eY ttr.�++ ' F� Yy
' t,. t'." Nr p • y. '0.y li'r ♦ - 0r.4p y.A n,lt4 sot 1 jam►
L V 1 1 L, ��� �. .1I A
.. 1+ . F j
F a; t �� • •.4 -1 t'�4:'yAy�r �aL�'� �4 k!�licr- __.�
10
�FA Jr i Jr1//1tlf.:e•%i;bri�
IvII/iPii iri,l./;1Pgr •tlEtrirr-
+i+i4r',r.- •. `-1 ;.
Y
,rWork Cited
American Institute of Architects' Regional/Urban Design Assistance Team
htta://www,aia.ora/liv rudat. (4 December 2007).
Anderson, James E. 2006. Public Policymaking. 6th Edition. Boston Houghton Mifflin.
Armbruster, Ryan. 2007. Urban Renewal and Revenue Allocation Tax: Increment at a
Crossroads. Association of Idaho Cities Annual Conference. June 14-15, 2007.
Coeur d'Alene, Idaho.
Baumgartner, Frank and Jones, Bryan. 1993. Agendas and Instability in American Politics.
Chicago: University of Chicago Press.
Boise Redevelopment Agency v. Yick Kong Corp. 94 Idaho 876, 499 P.2d 575 (1972).
(20 November 2007).
Capital City Development Corporation. 2007. httn://vvww.ccdcboise.com/downloads.htm
(19 November 2007).
City of Boise v. Frazier. 143 Idaho 1, 137 P.3d 388 (2006).
(20 November 2007).
Clemons, Randall S. and Mark K. McBeth. 2001. Public Policy Praxis: Theory and
Pragmatism. New Jersey: Prentice Hall.
Davis, L.J. 1974. "Tearing Down Boise." Harpers Magazine. Published November 1974.
. (4 December 2007).
Forbes Magazine. 2003. "Best Places for Business and Careers." (4 December 2007).
vision
!'Work Cited (cont.)
1111111111111111P 0111111111•0 41111111NMEIMINIIIIIR
HB 555. 2006. Eminent Domain, Limitation. Idaho State Legislature.
http://www3.state.id.us/oasis/2006/H0555.htm1. (13 September 2006).
Idaho Falls Redevelopment Agency v. Countryman, 118 Idaho 43, 794 P.2d 632 (1990)
(20 November 2007).
Idaho Urban Renewal Law, Chapter 20, Title 50, Idaho Code (I.C. 50-2001, et.seq.).
http://www3.state.id.us/idstat/TOC/50020KTOC.html. (14 November 2007).
Jost, Kenneth. 2005. "Property Rights." CQ Researcher Volume 15, Number 9.
h1 p://1ibr ry.cupress.com.libproxv.boisestate.edu/curesearcher/document.php?id.
(11 September 2006).
Kingdon, John. 1984. Agendas, Alternatives, and Public Policies. Boston: Little, Brown.
Local Economic Development Act, Chapter 29, Title 50, Idaho Code (I.C. 50-2901, et.seq.)
http://www3.state.id.us/idstat/TOC/50029KTOC.html. (14 November 2007).
Nash, John. 1950. "Equilibrium Points in N -Person Games." Proceedings of the National
Academy ofSciences 36(1):48-49.
Sabatier, Paul. 2007. Theories of the Public Process. 2nd Edition. Boulder: Westview Press.
Stark, Ray. 2007. Personal Interview at the Boise Metro Chambers Offices. Vice President of
Government Affairs. (6 December 2007).
Thomson v. City of Lewiston, 137 Idaho 473, 50 P.3d 488 (2000). (20 November 2007).
W WW.EAGLEU RBANRENEWAL.ORG
vision
Valley Regional Transit
Mobility Development Plan
Community Outreach Meetings
VALLEY REGIONAL
Titan -rt.)! inty raninnal ni ihlir trancnnrl-atinn
authority (RPTA)
• Public authority established in 1998 by
citizen referendum
• Accountable to local governments
• Responsible for developing and
coordinating regional public transportation
VRr�
VALLEY REGIONAL
valley Regional Transit's (i/RT) mission is
to move people throughout the Treasure
Valley by coordinating and providing
effective, efficient, and convenient public
transportation services consistent with our
resources.
. ■ ■
• Transportation Development Plan (2001)
• Treasure Valley in Transit Plan (2005)
• Transportation Coordination Plan (2007)
VALLEY REGI
VRT
• Regional Administration
— Federal Section 5307
— Local dues assessed on per
capita
• Urbanized Services
— Federal Section 5307
— Federal Section 5309
— Local general funds
• Mobility Programs
— Federal Section 5316 and
5317
— Local general funds
VALLEY REGIOtii,
VRT
• Regional route restructure (2005)
• Additional inter -county services
— Hwy 44 (2006)
-- BSU to CWI (2007)
• Bus stop system development
• Specialized/community
transportation
— Canyon vanpool
— Volunteer Ride Reimbursement
— Travel Training
— Human service
coordination/Vehicle sharing
— Google transit/511
/SPEED
LIMIT
35
VRT)
VALLEY REGIOt .-;..,. • rtiw`�.i
• Premium service
• Primary and
secondary Routes
— Regional connections
— Neighborhood and flex
routes
• Employer -based
transportation
• Rural services
• Specialized services
VALLEY REOIOi r
VR3
• Building on solid foundation
• Update and integrate all VRT's plans to
date
• Identify strategies for public
involvement/governance to support
effective decision-making
• Build support for sustainable funding and
utilization of existing and future services
VRr.,
VALLEY REGIOi , .., ..:-..
• Target the diverse needs
of each jurisdiction
• Establish innovative and
interactive ways to
engage citizens and
enhance local
accountability
• Build mechanism for on-
going input into decisions
(Community and
Technical Resource
Groups)
IIRT
VALLEY REGIONAL 1
• Consolidate existing plans into one base -map
(October — December)
• Community specific service checklist (December)
• Targeted community meetings (February -March)
• Community-based surveys (March)
• Draft document and outreach back to
communities (April - May)
• Final plan to board (June)
VRT�
VALLEY REGIONAL t Ilk ,ir
IIIMMNI19
• Community-based services checklist
• Interactive map
— Services
•
— Capital Infrastructure
— Opportunities for connections and coordination
Legend
firma
INMI•ormulormoodlmol Low
aim forum
Imo/ om
lormm, 14 *Mr
germ rul If mom a..
_
Mao,
Y.r.,)0MOO r.M. wh
2..SM.
I pYmrMomrwh
Umror
0
Treasure Valley
in Transit
1
Mar
Kr
0 114111.0, Meors. In mom al, bow o.bk Mom.*
would b..nb..a.d m1F IM Imam.. Vary. 1r,.w.l..
U.,.id.k.o kr nod ammo " m. bony domisaml
For m.r..k.mrenMa. the Lmom Vi, In
1rmotuolm...mum rimmgrum/bamte,
VRT
VALLEY REGIONAi a niIUri i4
Treasure Valley
in Transit
•••••••••.
Premium Service IS to skt minutes all day
Dedicated right od way
Emitted
Trmaess Service TS W �tes peak
3D 1060 minutes midday
PeLimitedsos
ak Service 20 min yp�'
Prrma�lce 1S to trA peat
3D to EA minubm midday
F
�j'aM Moak
Secmdary Service 10 566%1 wirriEM all day
Trectuer t stops
Aural Service 60 minutes all day
ene�jj stow
Eloise Streetcar f rninale. aday
intertay]ervioe varies
Flex -Route Service Up to 60 minutes all day
Deviates from its set route
}
Aural lanes r
Planned Transit Center €iPlarvred Park &Ride Lot ` G
mIlasting Transit Center sting Park & Ride Lot
$Planned Station
MM
Idaho
City
cvi
Mountain
\ Home
VRT
VALLEY REG/OVAL
• What are the best ways for VRT to reach
out to Eagle stakeholders and citizens?
• How would the city council members and
the other community leaders like to be
involved in that process?
• What are the key issues that Eagle will be
addressing over the next couple of years?
• Representation on VRT Board
VRT�
VALLEY REGIONAL ..yv..�. 1
iv it
m3companies
M3 EAGLE
OVER VIEW OF WATER RIGHT
PERMITTING PROCESS
City Council Meeting
January 25, 2011
i V i_
m3companies
Pre Annexation and
Development Agreement
• Approved on December 27, 2007
• 35+/- Public meetings over an 18 -month period
• Established contractual agreement between the City and Developer (M3) prior to and after annexation of the
property to the City for 30 years with one 10 year extension
• Annexation occurred on November 19, 2009
• Development Agreement is the contractual agreement guiding the Project and City relationship on:
— Annexation
— Master Plans and Planning Units
— Density and Intensity of Uses
— Design Guidelines
— PUD Standards
— Traffic
— Water
— Wastewater
— Storm Drainage
Public Facilities (schools, fire, police, civic and library)
— Parks, Trails and Open Space
— BLM Land Exchange
— Habitat Mitigation
— Hillside Grading Standards
— Community Governance
— Financial Assurances
m3companies
Development Agreement Section 2.2 — Water
Pre Annexation and
Development Agreement
Section 2.2 Water
(a) Water Provider: Developer is required to construct and convey the municipal water system to the City at no
cost to the City. The estimated cost to construct, wells, storage tanks and the mainline system is $18,800,000. M3
to date has spent over $2,500,000 for studies and permitting.
(b) Regional Hydrogeologic Study; Master Water Plan: Developer conducted a regional water study (which was
completed with the water right application). The Developer will prepare a Master Water Plan and water
conservation criteria.
(c) Water System: Developer shall design, engineer and construct the water system to City standards and convey
the systems to the City:
"Developer and City shall cooperate to the greatest extent practicable to ensure that all necessary
water rights are secured by Developer for the Water System"
(d) Planning Unit Master Water Plan: Requires a detailed analysis of the Water System for each Planning Unit
iv k
m3companies
Pre Annexation and
Development Agreement
Section 2.2 Water
(e) Assured Water Supply: Developer shall obtain and convey the water right to the City on a phase -by -phase basis and
the City shall cooperate with the Developer to obtain the water right at no cost to the City.
"If any transfer, amendment or other proceedings are required under Idaho Code or IDWR rule or policy for the
water rights necessary to serve the Project, City shall cooperate with developer in Developer's efforts to obtain all
necessary permits and approvals from IDWR, including, without limitation, approvals in connection with
Mitigation that may be required."
(f) Reimbursement: If the City determines that Developer's infrastructure benefits other properties, the Developer will be
reimbursed through a Water Reimbursement Agreement.
(g) Water User Charges: Discusses City operation of the Water System.
(h) Alternative Water Service: Sets time limit of 36 months from "Extension Term" (11/19/12) that Developer and the City
shall work together on obtaining water right for the Project.
"Only in the event City fails to perform under Section 2.2 or, if City refuses to cooperate with Developer in
providing for City to be the water service provider to the Property as set forth in Section 2.2, Developer may seek
alternative potable water service from other capable providers or may create a private water system for the
project."
(i) Irrigation Study: Discusses Developer securing sufficient water for aesthetic needs for the Project and use of "re -use" or
effluent.
p _ /companies
Water Right Process
Summary
• 11/06 Filed application for 42.5 cfs peak flow
• 8/07 First amendment to application reduced to peak flow of 27.47 cfs
• 12/07 Second amendment reduced peak flow to 23.18 cfs for 7,153 units
• 4/09 First of 16 IDWR hearing dates on water right
• 7/30/09 Last hearing at IDWR and factual record closed
• 11/19/09 City annexes M3 Eagle
• 12/21/09 IDWR issues first Final Order
• 1/4/09 M3 files for reconsideration
• 1/25/10 IDWR issues Amended Final Order granting 3.2 cfs water right
• 2/19/10 M3 files lawsuit in district court against IDWR asserting IDWR in error on basis of record
• 5/27/10 Joint Motion to Suspend Judicial Review Proceedings filed by IDWR and M3 to allow time for
settlement discussions
• 6/16/10 to 1/14/11 First of over 20 meetings with IDWR for settlement discussions, including participation by City's
legal counsel in 8 of those meetings. Although the Protestants are not party to
the M3 vs. IDWR lawsuit, the department met with them and obtained their input
• 10/18/10 Status conference with District Court attended by IDWR and M3. Protestants address the Court.
• 1/14/11 Status conference with District Court attended by IDWR and M3. City's legal counsel and Mayor in
attendance. Protestants again address the Court
• 1/19/11 IDWR and M3 sign Agreement setting forth process to settle the M3 vs. IDWR lawsuit and process
to grant water right to City of Eagle as the "Municipal Provider"
• 1/19/11 Agreement conveyed to City's attorneys
1/21/11 Agreement conveyed to Protestants by IDWR
,companies
M3-IDWR Agreement
dated January 19, 2011
• Sets forth process between IDWR and M3 to occur within 60 days or no later than March 19, 2011:
- City submittal and review by IDWR of City's reasonably anticipated future needs "RAFN" information for the City's
Service Area:
• Projected population data
• City's existing water rights portfolio
• Projected water demand for its service area
• Information on the quantity of water under the M3 permit as it relates to the City's service area
• Department to inform City and M3 in writing of completeness upon finding that no additional or different
information is required
— Develop and agree upon Findings and Conclusions based on the existing record, in addition to those already agreed
to as set forth in paragraph 5 E; to be attached to the Agreement as Exhibits A and B to the Stipulation and Order
to be filed with the Court
— Develop and agree upon Permit Conditions
• Within 30 days, or by April 19, 2011
— M3 shall assign the Permit to the City pursuant to Section 2.2 of the Pre -Annexation and Development Agreement
• Provides for M3 to assign the Permit to another qualified Municipal Provider within 180 days of the City declining to
accept assignment of the Permit or City not providing the RAFN information
• Within 30 days of the date of Permit being assigned a Municipal Provider, the parties will prepare and submit to the
District Court a stipulation and order seeking:
- Dismissal of the lawsuit M3 Eagle v IDWR
— Contain the agreed upon Findings and Permit Conditions — Exhibits A and B
— Ask the District Court to remand the hearing back to IDWR
- May 3, 2011 District Court date stipulation and order needs to be before the court prior to this date
m3companies
1 v 11_
M3-IDWR Agreement
dated January 19, 2011
• If City accepts assignment, IDWR shall reopen the M3 Eagle application hearing solely to accept evidence of M3
Eagle's annexation, City's RAFN information, M3 Eagle's water use in relation to City's, and additional matters
agreed to by the parties
• IDWR shall issue a Second Amended Order consistent with:
-- The evidence received during the remand proceedings
— Findings and Permit Conditions consistent with Exhibits A and B to the Stipulation and Order
— Section 5.E of the Agreement, which provides:
• City of Eagle is a qualified Municipal Provider
5.E. ii "The aquifer proposed to supply the water right sought in the M3 Application lies beneath
the southwestern portion of the M3 Eagle planned community property (i.e. southwest of the green line
depicted in Exhibit 18, Fig. 1), and is part of the "deep, regional flow system: identified in the Treasure Valley
Hydrologic Project model and reports (collectively "TVHP"). Ex. 33D at 49. The water supply in the aquifer
is sufficient for the purposes it was sought to be appropriated as identified in the M3 Eagle Application."
• The Project has been annexed
• IDWR has deemed M3 Eagle's monitoring plan acceptable
• This Agreement shall have no effect on Assignee's (City) existing or future water right permits, licenses or
applications, except that Assignee may rely on the evidence submitted on the remand of this matter
• IDWR is not a third -party beneficiary of the Development Agreement
TL
Il l 3COT11P2.r11CS
Exhibit 18 Figure 1
` t 1occrand } . • I
i + Stdirr-enr )"o caRicBn'ia^k` J f J. r
i I < �t_J• : , ;:i}� F,.a,. �' 1 �f '» , 2 w. � i •'�f' rxj 1`t ��r1i.
i _ ' `• ',
eI�— • ,-- ..•• I -a = ` it {{ `. •11'
- " 1•° t .�_ t Undltr tiaced apd.. '7„- w,. _. : -4
X35 1 . l �� i-o�i Isolated'
..L`•• F .11 •' i •
r l ` .,Willow ? .�\T f
-----
? � -k - ♦ i -•,... . Granite end
i I E ; - — - - _ �� $• j� Aquifer' \ ' I-oicanir Bedrock •
_` . ; ..�..�.. spa J � zg � - , Gulch `` ��~ , •r ` ` _ r.IT � �� ' _ :_
l i4a
..�\ 1
Mi . 1 let on
•
•
•
•
•
as Star
a \ • r
•
•-
t.
e2 .2
-r
•
et
Monitoring Plan
m3companies
Ground water monitoring is required. Two conditions of approval for the water right No. 63-
32573 require monitoring of ground water production and water levels for the M3 Eagle
development. These conditions state:
"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 water 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 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. "
• M3 Eagle drilled 4 specially designed long term monitoring wells and has 4 years of
monitoring data from 2006-2010 , as well as, monitored other wells on the property
• M3 Eagle developed a Monitoring Plan and submitted to IDWR during the settlement
negotiations
• IDWR has reviewed and approved the Monitoring Plan subject to some final adjustments
m3companies
iv It
Monitoring Plan
• M3 Eagle Monitoring Plan. In compliance with these conditions, and to monitor its own effects from
pumping, M3 Eagle's consultant developed a "Ground Water Level/Production Monitoring Plan" which has
been reviewed by IDWR's hydrogeology staff and is being finalized to incorporate the staff's comments.
These are some of the Plan's basic elements:
• Seven monitored aquifer zones
• The Plan uses five long-term designated (non -producing) wells that M3 Eagle either constructed or
equipped at its expense — 4 of the 5 of these are complete and monitoring today
• In addition to the seven -zone, five -well monitoring network, the Plan specifies that ground water levels
and pumped ground water volume will be monitored in all water supply production wells as they are
constructed
• Monitoring will occur continuously, and will be recorded on IDWR-approved digital data loggers and flow
meters
• The Plan requires annual data submissions to IDWR. At IDWR's option, these submissions can be made
every 6 months
• The data will be plotted to show:
— seasonal variations and trends;
— pumping effects; and
— any other factors relating to aquifer water levels
-1 1.3 companies
Monitoring Plan
• Every five years, the water right holder will submit hydrogeological analyses and an interpretive report
based on the monitoring. The interpretive report will include:
- plotted hydrographs for each monitored well;
— a discussion of water level trends;
- any notable changes in water levels;
- the high and low measurements recorded; and
- an explanation of the results
• In other words, as production gradually increases, IDWR will have a continual look at what the effects of
pumping are, there will be no surprises
• The details of the monitoring Plan, including the protocols, instrumentation, types of measurements,
proposed timelines for measuring, and reporting requirements are set forth in a 30 -page report
• Responsibility for monitoring:
• M3 Eagle currently has responsibility for monitoring, and at its expense as part of its obligation under the
Development Agreement, has constructed most of the monitoring network itself
• Monitoring costs will be recouped from the users of water from the M3 Eagle system as a portion of their
water bills
• When M3 Eagle conveys the water right, the wells (including monitoring wells), pumps, pipelines to the
City of Eagle, the City would take over this responsibility for monitoring
l
m3companies
M3 Eagle, LLC's Proposed Long -Term Ground
Water Level Monitoring Network
October 15, 2010
- - 1. / ' 1`
Wulo� -
•
ene pt(!e
h
X21 I �f- ,
yI
•
I't's. \ 1
1 S Arritmem rt. St1
EAGLE PROPt:RT
r.SOI %DAR1
TW #3
•
Jg
C
TW #•
4
E SF 1 "n-
i'^l
27 --
I
5y
.77
,f-
\L‘ '\ :1/4.\-N!
• i
� :
14
TW #2 ,_ -
y-.
\
SVR#7
23
INE SIN
'-2:.] --
f
SE
t•
' 13
24
Location of
Monitoring Wells
.Cr,
---J ( -
^= ti
rk
SVR #9
,v
•
V M 1 j
\ 3
APPROXIMATE
M3-
EAGL.t. PROPERTY \
ti
31
31 (s
Boise. Idaho ti
U S. Geological Surer)
• , , 7.5 -min. sows quads
scale 1.24000
• \-11'1
Figure 1.
issue certificates of occupancy for any phase prior to adequate on-site roads being constructed to the
capacity required for full build -out of that phase.
(g) Private Roads. All private roads and/or rights-of-way within the Property shall
be constructed by Developer to ACHD and/or ITD, as applicable, standards and maintained by Developer
and/or an Owners' Association; provided, however, in certain areas, Developer may seek approval on a
phase by phase basis from City to install private roads which are not to ACHD standards or are not paved
to preserve a rural character. Developer reserves the right to seek approval to limit access through access
control structures, to private roads within the Property, and to determine the location of curb cuts, provided
a qualified engineer determines that their location does not present a significant hazard. Developer shall
have the right to retain ownership of private roads and/or rights-of-way. Some or all of private roads and/or
rights-of-way may be conveyed to one or more Owners' Associations. Developer may seek City approval
to install access control structures within the medians of the private roads and/or rights-of-way at any
portion of the Property. Developer shall grant to the appropriate service providers license for police, fire,
ambulance, garbage collection, water or sewer line installation and repair, and other similar public
purposes, over such private roads and/or rights-of-way. Application for private streets shall be made to
City as allowed under Eagle City Code Titles 8 and 9 at the same time as a preliminary plat application is
filed which includes one or more private road(s).
(h) Fiber Optics Easement. Developer shall reserve, prior to dedication to ACHD
and/or ITD, as applicable, in any public street on the Property, a non-exclusive Fiber Optics Easement
reasonably acceptable to Developer and ACHD and/or ITD as applicable. Such facilities may connect to
facilities external to the Property. Developer shall have the exclusive right to select providers of fiber optics
and telecommunications services in connection with the Project.
2.2 Water.
(a) Water Provider. As provided in paragraph 2.2(c), an addition to City's
Municipal Water System, hereinafter referred to as the Water System, shall be constructed by Developer
sufficient to serve the Project. The Water System shall include all water rights necessary to serve the
Project as it is being developed. As provided further herein, City shall be responsible for the operation and
maintenance of the Water System. City shall provide water service to the Properly from the Water System
on the same basis as City provides water to other residents and businesses in the City of Eagle under
ordinances in place at the time of this Agreement.
(b) Regional Hydrogeologic Study; Master Water Plan. Developer is conducting
a Regional Hydrogeologic Study to determine the extent and sustainability of water sources that may be
used to serve the Property. The Regional Hydrogeologic Study is intended to provide a basis for a Master
Water Plan. The Master Water Plan will identify the various components of the Water System and all water
rights necessary for and to be used to provide water service to the Property through the Water System. As
provided further herein, Developer will develop water conservation criteria for landscaping and irrigation
and the criteria will be included in the Design Guidelines.
(c) Water System. Prior to annexation, Developer may and, following annexation,
Developer shall design, engineer, construct, install, permit and then convey the Water System to City in
accordance with the terms of this Agreement, the Master Water Plan and any necessary Planning Unit
Master Water Plans and applicable federal, state and local laws. In designing and constructing the Water
System, Developer shall consult regularly with City and, construct the Water System to City's standards.
Developer and City shall cooperate to the greatest extent practicable to ensure that all necessary water
rights are secured by Developer for the Water System, and that the Water System can be permitted and
operated in conjunction with existing and planned water facilities of City. Wherever feasible, Developer
and City agree to cooperate as appropriate on development and operation of facilities such as storage
reservoirs, emergency back-up power generators, and similar facilities. The phasing of the Project's
development shall dictate the location and construction of the Water System components. City shall not
issue any building permits for any phase prior to Developer's completion of the components of the Water
System sufficient to provide fire protection for that phase of the Project. City shall not issue any certificates
PRE -ANNEXATION AND DEVELOPMENT AGREEMENT - 23
of occupancy for any phase prior to Developer's completion of the Water System and irrigation facilities for
service of that phase. As part of the conveyance of any phase or portion of the Water System to City,
Developer shall provide City with alt applicable as -built drawings, operation and maintenance manuals,
operation records, and water right records and other necessary information.
(d) Planning Unit Master Water Plan. A detailed analysis of the Water System for
each Planning Unit shall be completed and submitted to City.
(e) Assured Water Supply. For each Planning Unit Master Water Plan, Developer
shall submit evidence that Developer has secured adequate surface and/or ground water right(s) for the
Water System, sufficient for all irrigation, aesthetic, amenity, potable and/or recreational use in connection
with the development of each Planning Unit (unless Developer is entitled to a waiver as provided by City
Code). As part of the construction of the Water System and conveyance to City, Developer shall transfer,
convey or assign (on a phase by phase basis) ground water right(s) to City for inclusion in City's municipal
water supply system; provided however, Developer shall not convey or assign more ground water right(s)
than necessary to serve the Project as it is being developed and City shall not use any of the water
transferred under such rights to serve any other properties unless City demonstrates to Developer that City
has obtained adequate water rights to serve the Project and such other properties. City shall cooperate
with Developer, at no cost to City, to assist Developer in Developer's obtaining all permit(s) and licenses
for water rights sufficient to serve the Property as the Property is developed in accordance with this
Agreement. If any transfer, amendment or other proceedings are required under Idaho Code or IDWR rule
or policy for the water rights necessary to serve the Project, City shall cooperate with developer in
Developer's efforts to obtain all necessary permits and approvals from IDWR, including, without limitation,
approvals in connection with Mitigation that may be required. Developer shall have the right to file for a
municipal water right prior to the annexation. As set forth in this Agreement, it is City's and Developer's
intent to have City be the water service provider and not have a PUC regulated provider serve the
Property.
(f) Reimbursement. If Developer, at Developer's cost and expense, develops
major water facilities, such as major production wells, water storage tanks or reservoirs (but excluding local
service and distribution lines) for the Project, which reasonably has been determined by City to benefit
properties other than the Property, or if City requires Developer to develop a portion of the Water System in
excess of that necessary to serve the Project so as to allow City to serve other properties, City and
Developer shall, in good faith, enter into an agreement to the effect that the portion of the costs in
connection with such development of the Water System for properties other than the Property shall be
reimbursed to Developer from the service connection charges collected from such other benefited property
owners who otherwise have not paid or contributed their proportionate share toward development of the
Water System ("Water Reimbursement Agreement"). Such Water Reimbursement Agreement shall have
a duration of sufficient time following completion of the portion of the Water System for which
reimbursement is sought with such time to be mutually agreed between Developer and City but in no event
less than ten (10) years. Such Water Reimbursement Agreement shall provide, in part, that: (i) interest be
paid to Developer at the then applicable municipal bond rate; (ii) City shall charge an administrative fee for
handling the accounting, auditing, and payment of the reimbursement payments to be made to Developer;
(iii) the Water Reimbursement Agreement shall be binding on Developer and City and their respective
successors and assigns; and (iv) the Water Reimbursement Agreement may be recorded as an
encumbrance against the benefited property(ies).
(g) Water User Charges. Upon development and conveyance of the Water System
to City of the Water System and compliance with paragraph 2.2(c) above, City shall provide water service
to the Property in quantity and quality sufficient to satisfy the potable water needs of the Project as and
when required in connection with the development of the Property, subject to any water disruption or
degradation of water quality or quantity that is outside the control of City and further subject to City's
reasonably enacted and imposed standard terms and conditions of delivery. All water service using the
Water System shall be metered. City shall receive no fee for water service until, and only if, City accepts
ownership of and operational responsibility for the Water System, after which time City shall be entitled to
collect such fees for water service.
PRE -ANNEXATION AND DEVELOPMENT AGREEMENT - 24
(h) Alternative Water Service. It is the purpose and intent of City and Developer
for Developer to develop a Water System (on a phase by phase basis) and convey same to City so City
can provide water service to the Project. Developer has explored, and is continuing to explore, in
conjunction with the Regional Hydrogeologic Study and Master Water Plan, several alternatives for the
securing of water for use in the Water System, Including the primary alternative for the use of ground water
from on-site and off-site wells. The Parties, for a period not to exceed 36 months from the commencement
of the Extension Term, shall, in good faith, explore developing the source(s) of supply for the Water
System. If Developer fails to obtain adequate source(s) of supply to serve the Property within such 36 -
month time period (unless such period of time is extended by Developer and City by mutual agreement on
or before the last day of such 36 -month time period), City and Developer shall meet to evaluate other
alternative sources of supply, including temporary source of supply, to provide a source of water for the
Water System. The alternative source of supply can include use of surface water or water secured from
other providers while Developer attempts to secure a permanent water supply for the Water System. ,
Only in the event City fails to perform under Section 2.2 or, if City refuses to cooperate with Developer in
providing for City to be the water service provider to the Property as set forth in Section 2.2, Developer
may seek alternative potable water service from other capable providers or may create a private water
system for the Project.
(1) Irrigation Study. Developer shall secure sufficient water for irrigation and
aesthetic needs of the Project. The method of providing irrigation water shall be at the discretion of
Developer so long as an adequate system and source of supply is provided, including a source of supply
consistent with paragraph 2.3(f) below. If Developer so requests, City will give good faith consideration to
establishing a municipal irrigation system to maintain and serve irrigation water to the Project.
2.3 Wastewater Treatment and Disposal.
(a) Eagle Sewer District. Sanitary sewer collection, treatment and disposal shall be
provided by Sewer District or some other legally constituted public or private provider allowed to operate in
City. Following annexation, Developer agrees to annex to Eagle Sewer District and further agrees not to
seek other sewer treatment services unless or until Eagle Sewer District refuses to serve the Project. City
shall not be responsible for any treatment, maintenance or costs associated with sanitary sewer collection,
treatment and disposal in connection with the Project unless Eagle Sewer District refuses to serve and City
and Developer enter into a separate agreement regarding Wastewater Treatment and disposal.
(b) Master Wastewater Study; Master Wastewater Plan. Developer has
completed the Master Wastewater Study and Master Wastewater Pian which shall be submitted to Eagle
Sewer District for approval. The Master Wastewater Plan, to be developed based on the Master
Wastewater Study shall provide general locations of the major wastewater infrastructure needed to provide
service for the Property.
(c) Assured Treatment Facilities. In connection with each Planning Unit Master
Wastewater Pian, concurrently with the submittal of a Final Development Plan in connection with each
Planning Unit or portion thereof, Developer shall submit evidence that the Wastewater System is adequate
to satisfy all proposed uses in connection with the development of such Planning Unit or portion thereof. A
letter of approval shall be provided to City from the Eagle Sewer District, Idaho Department of
Environmental Quality and/or Central District Health, and/or other applicable governmental agency, prior to
issuance of any certificate of occupancy as required by law.
(d) Re -use Water. City acknowledges Developer's intention to retain rights, title and
interest in any and all of its re -use water (for irrigation or aquifer recharge purposes) which is generated
from any Wastewater System constructed by Developer. City acknowledges that Developer will be using
the re -use water for irrigation of its Open Space and potentially recharging the aquifer, both of which uses
will be subject to applicable govemmental agency approvals.
PRE -ANNEXATION AND DEVELOPMENT AGREEMENT - 25
dei 'I-1'
BEFORE Hit DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
IN THE MATTER OF APPLICATION )
TO APPROPRIATE WATER NO. 63-32573 ) AMENDED 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.
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,
AMENDED FINAL ORDER, Page 1
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. Milbum'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.
On December 21, 2009, the interim director issued a final order.
On January 4, 2010, Eagle Pines Water Association and North Ada County Groundwater
Users Association filed a petition for clarification and reconsideration. On January 4, 2010, M3
Eagle filed a petition for reconsideration and a motion to reopen the record. The relief requested
in the petitions is addressed below and any changes made to the final order are contained in this
amended final order.
ANALYSIS OF M3 EAGLE'S PETITION FOR RECONSIDERATION
Technical Issues
Many of the issues raised by M3 Eagle relate to the interim director's focus on the Pierce
Gulch Sand Aquifer ("PGSA") as the source of water for municipal providers in the area. The
hearing evidence establishes that the PGSA is the target aquifer for local municipal providers and
other municipalities within M3 Eagle's ground water model boundaries:
All the major municipal supply wells and many irrigation wells in the greater
Eagle -Star -M3 area are believed to derive their water from the Pierce Gulch Sand
Aquifer. M3 Eagle plans to complete an estimated additional three to eleven
supply wells in the Pierce Gulch Sand Aquifer beneath its property. (Exhibit 44,
p. 5).
AMENDED FINAL ORDER, Page 2
Additional support for finding that municipalities rely on the PGSA as a source of
municipal water supplies is found in other M3 Eagle exhibits:
The second contribution is to apply the new understanding that the Pierce Gulch
Sand Aquifer is the regional aquifer system beneath the greater Star -Eagle -M3
area to the pumping test analyses. Geologic, hydraulic, geochemical, and
geophysical data show that all the major supply and irrigation wells in the Eagle,
Star, upland foothills area, and even the City of Meridian tap the same, regional -
supply aquifer. ( Exhibit 12, p. ii)
And more:
The aquifer sand thickens and descends deeper beneath the land surface to the
south and southwest in the Eagle -Star -Meridian area and is believed to do the
same to the northwest toward Payette River. The Pierce Gulch Sand Aquifer is a
very productive aquifer as evidenced by the many large bore production supply
wells which are completed into it including the City of Star's wells, the City of
Eagle's wells, and the public water utility wells of United Water Idaho and Eagle
Water Company, all located throughout the area (see Figure 5). (Exhibit 2, p. 3).
The Goddard well #2, located in Garden City, is constructed in the PGSA. In addition, a
well located near the Hewlett Packard facility west of Garden City is also constructed in the
PGSA (Exhibit 45, p. 27).
The testimony of Ed Squires (Tr. 1072-1073), expert witness for M3 Eagle, established
that the City of Caldwell and the City of Meridian divert water from the PGSA:
Q. What about the cities of Caldwell and Meridian, are their municipal wells
completed into the Pierce Gulch Sand Aquifer or some other aquifer?
A. Some of them are.
Q. Are those productive wells into the Pierce Gulch Sand Aquifer for Meridian
and Caldwell?
A. Some of the most productive wells we have, yes.
Based on inclusion of the Middleton area within the domain of the ground water model,
the City of Middleton probably diverts ground water from the PGSA for its municipal water
supply.
The PGSA is one of the deeper cold -water sedimentary aquifers in the Treasure Valley.
Aquifers deeper than the PGSA are often influenced by geothermal influences and have
relatively poor water quality. The PGSA is underlain by mudstone formations that do not
produce water of sufficient quality for municipal use without significant treatment. (Tr. 823-825)
AMENDED FINAL ORDER, Page 3
The deep aquifers above the geothermal ground water are the target aquifers for
municipal water within the Treasure Valley because of their quality and productivity. (Exhibit
33D, pg. 24).
The December 21, 2009 final order did not clearly state that the PGSA is the target
aquifer for municipal providers within much of the Treasure Valley and probably within much if
not all of M3 Eagle's model boundaries. The findings of fact will be amended to clearly state the
reliance of the municipalities in the Treasure Valley on the PGSA as a primary source of
municipal water.
The above described deficiency in the findings of the final order may have contributed to
many of the issues raised by M3 Eagle. For instance, M3 Eagle argues that the interim director
mistakenly declared a ground water shortage by not considering all of the ground water resources
in the Treasure Valley as being available for appropriation. Because the PGSA is the target
aquifer for M3 Eagle and for other municipalities, the interim director focused on water
availability and possible injury resulting from M3 Eagle's proposed appropriation from the
PGSA, not from other aquifers. The interim director also discussed whether it was in the public
interest to allow M3 Eagle to appropriate water for reasonably anticipated future needs to serve
30 years of development.
Limitations of the PGSA
M3 Eagle argues that the interim director announced "severely limited ground water
supplies" in the Treasure Valley. This statement is a mischaracterization. The final order
focused on the PGSA, not the entire ground water resource in the Treasure Valley.
Witnesses for M3 Eagle testified at the hearing that recharge to the PGSA was robust and
that the travel time in the aquifer is rapid. The interim director relied on the technical
information provided by M3 Eagle to evaluate what the terms "robust recharge" or "rapid travel
time" meant. This evidence was provided by M3 Eagle's geochemical expert, Richard
Glanzman, and by the scientific models developed and employed by M3 Eagle to simulate the
physical characteristics of the aquifer and its responses to pumping.
Geochemical Conclusions
1. Geochemical evidence submitted by M3 Eagle established that the PGSA derives its
water primarily from the ancestral Boise River and not from recharge resulting from vertical
seepage from lands overlying the PGSA.
Richard Glanzman, a geochemistry expert for M3 Eagle, testified as follows:
Q. And that statement says "Groundwater chemistry indicates that the Pierce
Gulch Sand Aquifer is a discrete aquifer recharged from the Boise River with no
apparent hydraulic connection with other aquifers". And the question 1 have is,
are you implying that in that statement that there's no hydraulic connection
existing between the Pierce Gulch Sand Aquifer and any other shallower aquifers
above it?"
AMENDED FINAL ORDER, Page 4
A. This is referring to the aquifer study and the wells studied in the M3 area. It
does indicate that's what it means.
Q. And so are you stating that there's no other connection with any other aquifers
above, shallower aquifers above?
A. That's what I'm saying.
(Tr. 1424).
The testimony of Glanzman is supported by the testimony of Mark Utting:
Well, I did state earlier that the only place we know recharge occurs in the model
area would be at the southeast boundary. (Tr. 1659-1660).
The hydraulic head in the PGSA is higher in most places than it is in overlying aquifers.
If there were any vertical movement of water, the higher head in the PGSA would cause water to
migrate upward out of the PGSA, not downward into the PGSA. (Tr. 806, 825-26, 940-943).
The interim director also takes note of the following conclusion that was based on
modeling performed as part of the Treasure Valley Hydrologic Project and quoted in an
Appendix to the M3 Eagle model report (Exhibit 16): "Simulated fluxes between model layers
in the base calibration indicates a relatively small amount of water moving vertically between
model layers, especially in lower layers. Based on simulation results, most recharge occurring in
shallow aquifer zones does not reach lower zones." (Exhibit 33B, p. 111).
2. M3 Eagle's technical evidence established that the PGSA is old water that has not
moved rapidly through the aquifer.
Glanzman concluded based on his interpretation of the data that "the aqueous
geochemistry analytical results indicate that the PGSA is a distinct regional aquifer containing
ground water originating from the geologically ancestral Boise River." (Exhibit 43, p. 5).
In support of its conclusion that PGSA ground water is "old," the Treasure Valley
Hydrologic Project determined that "ground water in the deep deltaic aquifers beneath Boise
entered the subsurface between 10,000 and 20,000 years ago." (Exhibit 33b, pg. 11).
Model Conclusions
M3 Eagle developed a ground water model to simulate the properties of the PGSA and to
predict what would happen when additional water is diverted by M3 Eagle. M3 Eagle argues
that the model was only developed to simulate ground water level changes resulting from M3
Eagle's proposed pumping and that the other components of the model should be ignored as
being unreliable. M3 Eagle encourages the interim director to subscribe to the following maxim:
Believe the results of a scientific study even though the data and input are unreliable. This
suggestion is untenable. A reliable and believable model should be built by inputting accurate
and believable information into the model, and the inputs and the results should be acceptable
AMENDED FINAL ORDER, Page 5
after being calibrated to measured outputs. In fact, M3 Eagle's evidence states the following
about the accuracy of the model.
Model calibration was performed to best available estimates of recharge,
pumping, and target ground water level elevations. (Appendix A to Exhibit 16, p.
20).
Moreover, concern by the model's designers for the accuracy of the water budget is
evident because they concluded that a small difference between the model inflow and the model
outflow terms "supports successful model calibration." (Exhibit 16, p. 26).
In contrast to the above statement, the water budget terms for the aquifers overlying the
PGSA were not considered reliable because there was no attempt to calibrate the upper layers of
the model. As stated in Appendix A to the M3 Eagle modeling report (Exhibit 16) "The model
(i.e. both realizations) was not calibrated to hydrogeologic conditions in the shallow and middle
aquifer systems. Model realizations should not be used to simulate hydraulic responses in either
system without further calibration, nor should the water budget developed for these portions of
the system be construed as accurate." (emphasis added, Appendix A to Exhibit 16, p. 20).
The ground water model shows inflow to the model boundary of the PGSA (layers 5-7) at
the southeast portion of the model. M3 Eagle created two versions of the model, one calibrated
to aquifer transntissivities (T -Match) and one calibrated to water levels in the PGSA (H -Match).
The inflow for the T -Match version of the model was 107 cfs. The inflow for the H -Match
version was 115 cfs. Neither version of the model simulated direct inflow to the PGSA from
shallow aquifers overlying the PGSA. The modeled inflow of 9.6 cfs from the west and north
boundaries is not supported by evidence in the record and was used to force calibration of the
model.
Mark Lifting summarized recharge to the PGSA:
Well, I did state earlier that the only, place we know recharge occurs in the model
area would be at the southeast boundary. (emphasis added, Tr. 1659-1660).
M3 Eagle argues that pumping will induce additional inflows to the PGSA, either from
the Boise River or from shallower aquifers. This conclusion may or may not be true because the
nature of how the Boise River recharges the PGSA is unknown. (Tr. 1143-44, 1240-41, 1661).
Additional recharge from shallower ground water zones would only occur if the current
vertical hydraulic gradient (higher hydraulic head at deeper depths) reverses and the hydraulic
gradient demonstrates lower head with depth. In addition, even after a gradient reversal,
confining layers above the PGSA significantly impede the vertical movement of water. M3
Eagle's ground water model confirms this vertical impedance by assuming negligible flow of
ground water into the PGSA from overlying aquifers.
M3 Eagle's expert witnesses testified that the PGSA is robustly recharged, and that the
hearing officer must give great weight to this "all important" expert testimony. For purposes of
evaluating M3 Eagle's application, and in an attempt to quantify the "robust" recharge to the
AMENDED FINAL ORDER, Page 6
PGSA, the interim director accepts M3 Eagle's own model numbers. As additional data is
gathered and further studies are completed, these numbers may change, but the interim director
must rely on the evidence in the record.
Available Drawdown
M3 Eagle argues that "wells will be positioned over the PGSA sufficiently far away from
the edge of the aquifer boundary to allow a reasonable depth of the well and the available
drawdown to the well." (Tr. p. 1124, Squires).
Despite the above testimony, M3 Eagle's application proposes construction of wells
scattered throughout the M3 property. Locations of existing wells proposed as points of
diversion in the water right application are also scattered throughout the property. As the PGSA
inclines upward to the northeast, the available drawdown decreases and water level declines are
more likely to cause up-slope wells to be unusable.
Municipal providers generally attempt to distribute wells within the service area.
Concentration of wells at one end of the development requires larger delivery pipelines leading
from the concentrated wells. More electrical energy must be expended to raise the pressure in
the delivery lines to overcome friction losses in the delivery. Spacing of wells throughout the
service area minimizes drawdown increases from intersecting cones of depression, reduces
energy costs caused by friction losses in long delivery pipes, reduces the size of piping needed to
deliver water, and more evenly distributes necessary pressure throughout the integrated system.
It is likely that M3 Eagle would attempt to construct and use existing wells both in the upslope
and downslope areas of the PGSA underlying the M3 Eagle property despite the testimony of Ed
Squires.
Water Supply Analysis
M3 Eagle argues that the interim director's water supply analysis is not supported by the
record and offers four reasons why.
1. M3 Eagle argues the interim director didn't consider the entire recharge in M3
Eagle's model water budget. The response to this argument is explained earlier in the text. The
argument that all ground water recharge must be considered by the interim director is
inconsistent with and belies M3 Eagle's testimony and evidence about recharge to the PGSA and
is inconsistent with the recharge inputs to the PGSA assumed by the model.
2. M3 Eagle argues the interim director cannot ignore the 9.6 cfs shown as recharge
on the west and north of its model boundary. M3 Eagle established that the hydraulic gradient in
the PGSA is from the.southeast to the west and to the northwest, and adopted this gradient
direction in its conceptual model. The interim director accepts M3 Eagle's conceptual model
and rejects the assumption of inflow to the PGSA from the west and north. The numerical model
inflows from the north and west of 9.6 cfs were forced by M3 Eagle's modeler because the
calibration to measured water well depths could not be matched without the use of these arbitrary
inflow boundaries that are inconsistent with the conceptual model and unsupported by evidence
in the record.
AMENDED FINAL ORDER, Page 7
3. M3 Eagle argues that 900 cfs of the "total presumed total inflow would remain."
Although M3 Eagle's computation to derive the 900 cfs is not contained in its brief, the interim
director concludes that 900 cfs is derived by the broad assumption that all the ground water is
available for appropriation and use rather than focusing on the PGSA, the target aquifer for
municipal use. As discussed earlier, by its own evidence, M3 Eagle established the inflows to
and characteristics of the PGSA.
4. M3 Eagle argues that the interim director used an average number of 10 cfs rather
than 9.03 cfs to calculate the recharge remaining in the PGSA of 13-21 cfs. This amended final
order reflects an average diversion of 9.03 cfs, which will increase the range of remaining water
in the PGSA from 14 to 22 cfs. This computation has little consequence to the determinations of
the amended final order. M3 Eagle seeks an appropriation of over 23 cfs. M3 Eagle would
divert a much higher flow rate than 9.03 cfs during the irrigation season. Presently, there are
annual fluctuations in the water levels of wells monitored in the PGSA, with declines in the
summertime resulting from irrigation pumping at nearby "pumping centers." (Exhibit 42, p.
20.). The peak pumping and effects from the pumping have the potential to further stress a
possible limited supply of water.
Director's Opinions and Assertion of Assumption of Facts not in the Record
M3 Eagle asserts the interim director assumed or considered evidence not in the record
and that the interim director "resorts to his own opinions."
As discussed earlier in this analysis, the interim director relied on the evidence presented
by M3 Eagle to determine the limitations of the PGSA. The reason the interim director
concentrated on layers 5-7 (three layers, not two) is partly because the water budget for the
model did not show inflows to the PGSA from any other layers. Furthermore, M3 Eagle's
documentation about the model stated that the water budget for the upper layers was not reliable.
Lastly, M3 Eagle's evidence also established that the recharge to the PGSA is Boise River water
from the south and east (Tr. 1658-1659) and that there is no hydraulic connection between the
PGSA and overlying aquifers (Tr. 1424). Many of M3 Eagle's arguments in this section promote
the same broad assumptions about recharge to the entire ground water resource without focusing
on the PGSA and ignoring evidence presented by M3 Eagle about specific recharge to the PGSA.
M3 Eagle apparently argues that the interim director cannot rely on the expertise of the
agency in finding facts and reaching conclusions from the evidence in the record. This argument
is contrary to the accepted tenets of administrative law.
Faulting Near the M3 Eagle Proposed Development
M3 Eagle argues that the hearing officer incorrectly found there is a fault in the
southwest portion of the M3 Eagle property. The interim director's findings were intended to
determine that the evidence presented did not conclusively establish the existence or
nonexistence of a fault, but that there were sufficient indications of an impediment to flow that a
AMENDED FINAL ORDER, Page 8
fault could exist and the existence of a fault could further limit the ability of M3 Eagle to obtain
water at full development.
Legal Issues
Prior to a detailed discussion of the legal issues raised by M3 Eagle, the relationship
between the technical findings of fact and the legal determinations by the interim director must
be established. The evidence establishes that M3 Eagle may appropriate water within the
standard statutory five year development period. The above analysis of the technical information
and the technical findings of fact in the final order were included, based on evidence presented in
the record, to show why there is sound public policy for the interim director's strict application
of the statutory standards and also to show that it is not in the local public interest to allow the
large appropriation for a 30 -year period that likely would restrict the ability of existing
municipalities to grow and to promote economic development within the existing communities.
Qualification as a Municipal Provider
Idaho Code § 42-202 states, in pertinent part:
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.
M3 Eagle argues that the verb "qualifies" is ambiguous. M3 Eagle argues evidence that
an applicant is "ready, willing, and able to be a municipal provider once the permit is issued" is
sufficient information and documentation to show that an applicant qualifies as a municipal
provider.
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.
M3 Eagle seeks to be a municipal provider under subsection (c) above as a "corporation .. .
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."
AMENDED FINAL ORDER, Page 9
Idaho Code § 42-202B(5) establishes the requirements for being a municipal provider.
M3 Eagle argues that the applicant does not need to be supplying water for municipal water
through a water system and does not need to be regulated by the state of Idaho as a public water
supply to qualify. In other words, M3 Eagle argues that if a person or entity presents an
application to appropriate water for municipal use and seeks to reserve 30 years of development
water for reasonably anticipated future needs, the test of qualification is satisfied if the applicant
is ready, willing, and able to be a municipal provider sometime after the permit is issued,
because M3 Eagle will not be a municipal provider for the service area sought "at the time the
permit is issued."
M3 Eagle's proposed standard for qualification is that the applicant wants to be a
municipal provider in the future. The interim director rejects this interpretation of the verb
"qualifies." The interim director interprets the verb to mean that the applicant must be a
municipal provider as defined by Idaho Code § 42-202B(5) at the time the application is
considered by the Department. There is sound public policy for this and other requirements
discussed later in this analysis. M3 Eagle did not qualify as a municipal provider when the
Department considered the application.
Reasonably Anticipated Future Needs Water Rights for Municipalities
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).
M3 Eagle argues that counties are municipalities, the M3 Eagle property was within Ada
County at the time the Department considered the application, and the M3 Eagle property has
been annexed into the City of Eagle.
As a preliminary matter, the assertion that the M3 Eagle property has been annexed into
the City of Eagle is not reflected in the record. By its argument, M3 Eagle suggests that the
interim director consider evidence not in the record. The hearing officer cannot consider the
asserted information in his decision.
The interim director concedes that a county can qualify as a municipal provider.
Nonetheless, there was no population, planning data, or planning horizon information for Ada
County presented at the hearing. Furthermore, Ada County has no direct interest in providing
water to its residents. M3 Eagle's focus at the hearing was a future annexation of its
development property into the City of Eagle. M3 Eagle offered as evidence the Comprehensive
Plan for the City of Eagle. To argue that there was a continuum of municipalities within the
service area ignores the requirement that the application be based on "population and other
planning data ... reasonably expected to be required within the planning horizon of each
AMENDED FINAL ORDER, Page 10
municipality within the service area ...." If the City of Eagle was the municipality M3 Eagle
intended to serve within its proposed area, the City of Eagle needed to be within the service area
at the time the Department considered the application. The M3 Eagle property was not annexed
into the City of Eagle at the time the Department considered the application.
M3 Eagle argues that Idaho Code § 42-202B(8) only requires review of the "planning
horizon of each municipality within the service area" when there is more than one municipality
within the service area to insure that the proposal is not "inconsistent with comprehensive land
use plans approved by each municipality." The statute requires that the proposal for reasonably
anticipated future needs be based on the planning horizon, population projections, and other
planning data of the municipalities within the service area, and then requires that the proposal not
be inconsistent when there are dual or multiple sets of planning data of more than one
municipality within the proposed service area.
The interim director affirms his conclusions of law that M3 Eagle must, at the time the
Department considers the application for appropriation of water for reasonably anticipated future
needs:
(1) satisfy the test of being a municipal provider;
(2) show there is a municipality within the proposed service area that will be served
with municipal water; and
(3) present evidence about the planning horizon, population projections, and other
planning data of the municipality or municipalities to be served to establish the quantity of water
that can be appropriated.
At the time the Department considered M3 Eagle's application, none of the above three
requirements were satisfied.
M3 Eagle suggests that it was acting as the agent of the City of Eagle in pursuing the
application. The only document establishing a binding relationship with the City of Eagle is the
very general and broad preannexation and development agreement between the city and M3
Eagle. This document does not establish agency.
The Evidence Supports the Conclusions of Law
M3 Eagle proposes the dedication of a significant portion of the ground water in a target
aquifer for many municipalities for possible use sometime within the next 30 years. The
proposed development has not begun. There has been almost no construction of infrastructure.
There is no municipal water system in place.
In contrast, the several municipalities relying on the PGSA as a water source have
constructed integrated water systems within their boundaries. The municipalities can be
expected to grow in the future and likely will have needs for additional water supplies diverted
from the PGSA. It is not in the public interest that the orderly expansions of these existing
systems should be limited by the dedication of ground water for future anticipated needs of a
development that is not within the boundaries of these municipalities, and does not incorporate
into its proposal the planning information for any of these communities.
AMENDED FINAL ORDER, Page 11
Uncertainty about possible faulting and development of the PGSA at its boundaries that
could affect the ability of the several municipalities relying on the PGSA to appropriate water
supplies in the future is additional public interest support for requiring strict adherence by M3
Eagle to the requirements of the law for appropriating water for anticipated future needs.
Miscellaneous Arguments
M3 Eagle argues that the interim director's calculation of the quantity approved for
appropriation by dividing the proposed appropriated by six (five years times six is 30 years) is
not based on the record. The interim director agrees the record contains better evidence to
compute the quantity. The interim director will take the development predicted by M3 Eagle's
economist during the first five years of the 30 year projection, and, based on the proportion of
the five-year development to the 30 year development, determine the quantity of water that can
be appropriated under a standard water right.
M3 Eagle argues that the interim director must issue a water right for reasonably
anticipated future use because of earlier issuance of a similar water right for the Tamarack Resort
recreational development in Valley County. The issues raised in this contested case were not
raised when the Department issued the Tamarack permit. The Department is not bound in a
subsequent water right determination by the issuance of the Tamarack permit.
M3 EAGLE'S MOTION TO REOPEN THE RECORD
M3 Eagle moved to reopen the record for the purpose of taking "testimony and
documentary evidence on the facts and legal conclusions raised or identified for the first time by
the Interim Director in his Order and, to the extent necessary for reconsideration, to address other
points described herein." M3. Eagle further argues that the "Order contains several instances of
the Interim Director taking official notice without notifying the parties or giving them an
opportunity to rebut his new facts and opinions," and that the interim director must "afford the
parties a timely and meaningful opportunity to contest and rebut the facts so noticed."
In the original final order and, as explained in the preceding analysis, the interim director
relied on the evidence presented by M3 Eagle and other evidence in the record to determine the
limitations of the PGSA and to write the final order. The interim director did not take notice of
or gather additional evidence in writing a decision.
After sixteen days of hearing and the submittal of volumes of evidence, M3 Eagle
proposes to reopen the record, either to recharacterize or rehabilitate the evidence that was
presented, or to perhaps present additional evidence about the dynamic nature of the M3 Eagle
development as it evolves. M3 Eagle pushed for expediency in holding the hearing, the hearing
was held, M3 Eagle had a full and lengthy opportunity to present its information, and all the
parties and the Department should have the reasonable expectation of finality without the
possibility of an iterative process where an applicant can present additional information in an
attempt to finally satisfy its burden and obtain exactly what it applied for.
AMENDED FINAL ORDER, Page 12
At the end of the hearing, the interim director also discussed with the parties his concerns
about whether M3 Eagle could obtain a water right for reasonably anticipated future needs and
asked the parties to brief the legal issue. M3 Eagle has had two opportunities to address these
legal issues before the Department, once in a post hearing brief and once in its petition for
reconsideration.
M3 Eagle's petition to reopen the record should be denied.
EAGLE PINES WATER ASSOCIATION'S AND NORTH ADA COUNTY
GROUNDWATER USERS ASSOCIATION'S PETITION FOR CLARIFICATION AND
RECONSIDERATION
Eagle Pines Water Association and North Ada County Groundwater Users Association
("Association Protestants") requested that the interim director require the M3 Eagle, or its
successors and assigns to "submit a comprehensive mitigation plan, including curtailment, in
connection with the monitoring plan to be approved by the Department to mitigate damages to
any pre-existing water rights in accordance with its assurances in its application."
The interim director determined in the final order and determines in this amended final
order that a standard appropriation of ground water by M3 Eagle for a significantly reduced flow
rate, excluding a water right for reasonably anticipated future needs, will not injure other water
rights. As a result, the condition requested by the Association Protestants is not needed, and the
petition for clarification and reconsideration should be denied.
AMENDED FINAL ORDER, Page 13
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 Willow Creek Road 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.
AMENDED FINAL ORDER, Page 14
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 proposed 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 span 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 7,153 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 housing units 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
AMENDED FINAL ORDER, Page 15
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. The artesian pressure in the PGSA is higher than the
pressure in the overlying layers, creating an upward vertical gradient. This upward vertical
gradient inhibits vertical down migration of ground water into the PGSA from overlying
aquifers.
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.
AMENDED FINAL ORDER, Page 16
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.
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 the strike is the intersection of the formation with a horizontal
plane. The line of intersection at the outcrop, 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, also characterized as an aquitard, 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 also northwest toward the lower Payette River
Valley.
26. In areal extent, the PGSA is a large hydrogeologic formation. Although the
boundaries have yet to 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. The nearby cities of Eagle and Star and the municipal providers supplying
municipal water to these cities rely on the PGSA for their municipal water supplies. In addition,
the cities of Garden City, Boise, Meridian, Caldwell, and Middleton also rely on the PGSA for
their municipal water supplies.
AMENDED FINAL ORDER, Page 17 •
28. 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 12, page 10) that
was identified and mapped by M3 Eagle expert witnesses. This fault is located northeast of 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. M3 Eagle used a Theis analysis that incorporated the existence of a fault at this
location.
29. Figure 46 of Exhibit 44 depicts much greater seasonal ground water level
drawdowns in the Kling well and test well no. 1 as a result from of pumping from the PGSA than
in the M3 Eagle wells located farther up Big Gulch. These large 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.
30. 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.
31. 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.
32. M3 Eagle conducted geochemical tests of the water in the PGSA, both inside and
outside of the M3 Eagle property. See Exhibit 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.
33. Evidence at the hearing established that 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. The
PGSA does not directly contact the Boise River for recharge. The flow path and water travel
time from the Boise River to the PGSA is unknown.
34. 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
AMENDED FINAL ORDER, Page 18
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.
35. 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
107 - 115 cfs. This assumption is consistent with M3 Eagle's determinati,n that the Boise River
in the Boise area is the major contributing source of water to the PGSA.
36. 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 9.6 cfs. This modeling assumption conflicts with the conceptual model of
flow from the Boise Valley into the Payette Valley and is not supported by the record.
37. The M3 Eagle model estimates existing pumping of ground water from the PGSA
within the model domain of 84 cfs and another 9.03 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. Despite these uncertainties, the model assumed a total pumping of
approximately 93 cfs.
38. The interim director determines 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 9.6 cfs of simulated model 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 93 cfs and a total inflow of 107 - 115 cfs, only 14 - 22 cfs would remain of the
total inflow for other future uses within the model domain from the PGSA.
39. M3 Eagle seeks an appropriation of over 23 cfs. M3 Eagle would divert a much
higher flow rate than 9.03 cfs during the irrigation season. Presently, there are annual
fluctuations in the water levels of wells monitored in the PGSA, with declines in the summertime
resulting from irrigation pumping at nearby "pumping centers." (Exhibit 42, p. 20). The peak
pumping and effects from the pumping has the potential to further stress a possible limited
supply of water.
40. The numerical determinations of recharge to and remaining ground water in the
PGSA contained in these findings of fact are not absolute. There may or may not be more
recharge induced from additional pumping. As additional data is collected, the determination of
the quantity of water in the aquifer may need to be readjusted. Nonetheless, for purposes of this
decision, the interim director must rely on the scientific evidence contained in the record. The
following are facts that the interim director incorporates into his decision in determining only 14
— 22 cfs remains available for appropriation:
(a) The flow path of recharge, and the various geologic formations through
which the water from the Boise River must pass to reach the PGSA are unknown. As a
result, additional pumping may not induce additional recharge from the Boise River.
AMENDED FINAL ORDER, Page 19
(b) The hydraulic head in the PGSA is greater than in overlying aquifers. The
upward vertical gradient prevents vertical recharge into the PGSA from overlying
aquifers.
(c) Even if pumping reduces pressures in the PGSA enough to reverse the
vertical gradient, fine-grained sediments overly the PGSA and impede the hydraulic
communication between the PGSA and overlying aquifers.
(d) The characterization of the PGSA as "geologically ancestral Boise River
water" establishes that the recharge of water into the PGSA from the Boise River is
limited.
41. Most of the communities within the model boundary have expanding growth
areas near their perimeters. The flow of 14 - 22 cfs determined 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.
42. 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 14-22 cfs for these future uses.
43. 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.
44. 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:
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
AMENDED FINAL ORDER, Page 20
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.
4. 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.
5. 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
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."
6. 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
AMENDED FINAL ORDER, Page 21
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.
7. 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.
8. 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).
9. 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 reasonablyexpected 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).
10. 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,
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.
11. 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.
AMENDED FINAL ORDER, Page 22
12. The quoted language above in Idaho Code § 42-202B(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.
13. 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.
14. M3 Eagle would have the interim 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.
15. The M3 Eagle development is, by its nature, the very type of development
that the legislature did not recognize as qualifying to appropriate 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 existing integrated systems. This possible limitation could dampen economic
growth of the communities relying on the PGSA as a source of municipal water. 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.
16. 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
AMENDED FINAL ORDER, Page 23
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.
17. It is not in the public interest to grant a water right to M3 Eagle for 23.18
cfs for anticipated future needs from the PGSA over a span of 30 years when the
reservation of this water could likely preclude the orderly expansion of existing
municipal water systems that also rely on the PGSA as a source of water, and would
likely preclude the economic growth associated with the expansions of the existing
municipal systems.
18. Based on the evidence presented at the hearing, M3 Eagle should be
granted a permit for the proportional flow rate it would be able to develop over a period
of five years. M3 Eagle projects there will be 1,011 homes served by the end of five
years. The five-year period in the M3 Eagle projections is from the date construction
begins, not from the date the permit is issued. Therefore, it is recognized that the
projected construction of 1,011 housing units is on the upper end of development
projection. The proportion of 1,011 housing units divided by the total number of 7,153
housing units is 0.1413. The product of 23.18 multiplied by 0.1413 is 3.28 cfs. A permit
should be issued for 3.28 cfs to M3 Eagle.
19. The water supply is sufficient to provide an appropriation of 3.28 cfs.
20. The applicant has sufficient financial resources to develop a first phase of
the project within five years at a flow rate of 3.28 cfs.
21. An appropriation of 3.28 cfs from the PGSA underlying the M3 Eagle
property will not injure other water rights.
22. A comparable quantity of annual volume for the municipal use is 0.1413
times 6,535 acre-feet, or 923 acre-feet.
23. To accommodate flexibility, M3 Eagle may divert 2.93 cfs of the 3.28 cfs
to storage, but cannot exceed the rate of 3.28 cfs. Diversion from storage for uses shall
be limited to 923 acre-feet of water. To allow construction of ponds and retention of
water, M3 Eagle may store up to 923 acre-feet of water in ponds on the proposed
development that is diverted directly from ground water. Storage in ponds is limited to
1,836 acre feet. The total diversion from ground water is limited to 923 acre-feet.
24. M3 Eagle will employ measures of conservation to conserve the waters of
the state of Idaho. At an appropriation of 3.28 cfs, the proposed application is in the
public interest.
AMENDED FINAL ORDER, Page 24
ORDER
IT IS HEREBY ORDERED that M3 Eagle's Petition for Reconsideration is
Granted, and has been addressed by the preceding analysis, findings of fact, conclusions
of law, and the following order.
IT IS FURTHER ORDERED that M3 Eagle's motion to reopen the hearing
record is Denied.
IT IS FURTHER ORDERED that the Association Protestants' Motion for
Clarification and/or Reconsideration is Denied.
IT IS FURTHER 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:
3.28 cfs
2.93 cfs
3.28 cfs
Annual volume diverted:
Annual volume diverted from storage:
Volume of storage:
Total annual volume authorized
923 acre feet
923 acre feet
923 acre feet
923 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 February 1,
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 3.28 cfs.
AMENDED FINAL ORDER, Page 25
The total annual volume diverted under this right shall not exceed 923 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 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 Iocated 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.
Dated this„,dh
Tay January, 2010.
Gary Spa c man
Interim Director
AMENDED FINAL ORDER, Page 26
CERTIFICATE OF SERVICE
Vti
I HEREBY CERTIFY that on this ,�'5 day of January, 2010, 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: AMENDED FINAL ORDER and Explanatory Information to
Accompany a Final Order
Name Address
JEFFREY C FEREDAY
GIVENS PURSLEY LLP
M3 EAGLE LLC
ALAN SMITH
EAGLE PINES WATER USERS
ASSN
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 IA/.L=1. 1 A
DALE GASTON
MARION D GROOTHUIS
VINCENT J MINKIEWICZ
CAROL JEAN THOMPSON
BARB JEKEL
ROBERT LYONS
G E MC DONALD
GEORGE W KEYES
ERIC C LEIGH
AMENDED FINAL ORDER, Page 27
601 W BANNOCK ST
PO BOX 2720
533 E RIVERSIDE DR STE 110
3135 OSPREY RD
3135 N OSPREY RD
5264 N SKY HIGH LN
855 STILLWELL DR
884 W BEACON LIGHT RD
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
1 GO 855 STILLWELL DR
1 GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
C/0 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
GO 855 STILLWELL DR
Postal
City State Code
BOISE . ID 83701
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
Name
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
AMENDED FINAL ORDER, Page 28
Address
C/O 855 STILLWELL DR
CIO 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/0 855 STILLWELL DR
CIO 855 STILLWELL DR
CIO 855 STILLWELL DR
CIO 855 STILLWELL DR
C/O 855 STILLWELL DR
Postal
City State Code
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
EAGLE ID 83616
Deborah J. Gibson
Administrative Assistant
Water Management Division
LZ 11161 si
AGREEMENT
(M3 EAGLE / IDWR SETTLEMENT TERMS)
This Agreement is entered by and between the Idaho Department of Water
Resources ("IDWR") and M3 Eagle, LLC ("M3 Eagle"), collectively referred to herein
as the "Parties," for the purpose of settling the two consolidated lawsuits now before
Judge Sticklen as M3 Eagle v. Idaho Department of Water Resources, Case No. CV OC
1003180 ("M3 Eagle v. IDWR").
Recitals
A. On November 21, 2006, M3 Eagle filed its application for water right no. 63-
32573, which was subsequently amended (as amended, the "M3 Application").
The M3 Application sought a municipal ground water right permit for reasonably
anticipated future needs ("RAFN") to supply M3 Eagle's proposed planned
community project ("Project") in north Ada County, Idaho. The M3 Application
sought a maximum diversion rate of 23.18 cubic feet per second ("cfs") to serve
the instantaneous peak demands at full build out, and an average diversion rate of
9.03 cfs which equates to 6,535 acre-feet of water per year. The reasonably
anticipated future needs component of the M3 Application would allow build -out
of the 7,153 -unit Project over 30 years.
B. Protests were filed to the M3 Application, a contested case hearing was held, and
IDWR issued its Final Order on December 21, 2009. M3 Eagle petitioned for
reconsideration and moved to reopen the record. On January 25, 2010, IDWR
issued its Amended Final Order ("Amended Final Order") which concluded that
M3 Eagle had not been annexed into the City of Eagle ("City"), was not a
qualified "municipal provider," as that term is defined in Idaho Code § 42-
202B(B)(5), and therefore was not entitled to hold a municipal water right for
reasonably anticipated future needs ("Municipal Provider Issues").
Accordingly, IDWR granted M3 Eagle a water permit with a maximum diversion
rate of 3.28 cfs and an annual diversion volume limit of 923 acre-feet, the
amounts deemed to be subject to development in a five-year period (hereinafter
referred to as "Permit," which also shall refer to the Permit as it may be amended
or replaced as a result of the proceedings described herein). The Amended Final
Order also concluded that the evidence in the contested case showed only 14-22
cfs of ground water would remain unappropriated in the target aquifer if M3
Eagle were granted its entire requested amount ("Water Supply Issues").
C. In M3 Eagle v. IDWR, M3 Eagle has petitioned for judicial review of the
Amended Final Order, and also has filed an action seeking IDWR compliance
with Idaho's public records statute. M3 Eagle challenges certain of IDWR's post -
hearing procedures and the Amended Final Order's findings and conclusions
concerning Municipal Provider Issues and Water Sufficiency Issues.
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 1 of 7
/we
D. On December 27, 2007, M3 Eagle and City entered into a Pre -Annexation and
Development Agreement, Instrument No. 107170114, Ada County Recorder's
Office ("Development Agreement"), which is Exhibit 58 in IDWR's contested
case record for the M3 Application case ("Hearing Record"). Among other
things, the Development Agreement contemplates City's annexation of the Project
property and M3 Eagle's development of the Project as a part of the City.
E. The Development Agreement addresses water supply for the Project and requires
M3 Eagle to construct a water system "sufficient to serve the Project" and to
obtain "all water rights necessary to serve the Project." Under the Development
Agreement, M3 Eagle is obligated to convey and assign the Project's water
system and water rights "to City for inclusion in City's municipal water supply
system," for purposes of "hav(ing] City be the [Project's] water service provider."
Under Section 2.2(h) of the Development Agreement, "[o]nly in the event City
fails to perform under Section 2.2 or, if City refuses to cooperate with [M3 Eagle]
in providing for City to be the water service provider to the [Project] as set forth
in Section 2.2, [M3 Eagle] may seek alternative potable water service from other
capable providers ...." M3 Eagle intends for the City to be the Project's water
service provider. The City is recognized by IDWR as a qualified municipal
provider and is eligible to hold a RAFN water right.
F. In accordance with City's comprehensive plan and pursuant to the Development
Agreement, the City approved and published Ordinance 634 on November 30,
2009 which annexed and zoned the Project property, after the Hearing Record
was closed.
G. By this Agreement, M3 Eagle and IDWR, in consultation with City, intend to
agree on several key issues and establish an orderly process to resolve all claims
raised in M3 Eagle v. IDWR by: (1) agreeing to certain findings and conclusions
concerning Water Supply Issues based on the Hearing Record; and (2)
establishing a procedure to allow the Hearing Record to be reopened before
IDWR on remand from the District Court for the limited purpose of taking
additional evidence to resolve the Municipal Provider Issues.
M3 Eagle and IDWR, in consultation with the City, have concurred on several findings
and conclusions, which are set forth in paragraph 5.E, below, and will continue to confer
and seek agreement on additional findings more particularly addressing Water Supply
Issues and pumping effects, all based solely on the Hearing Record. The Parties intend to
submit to the Court all of these findings, both those in paragraph 5.E and those yet to be
agreed to (if any) as part of the findings to be included in the Stipulation and Order.
Agreement Terms
In consideration of the mutual covenants and commitments contained herein, the
Parties hereby agree as follows:
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 2 of 7
Avr-
1. Development of Stipulation and Order. The Parties requested the District Court in
M3 Eagle v. IDWR, at the January 14, 2011 scheduling conference, to allow the Parties
90 days to work in good faith to develop a Stipulation and Order (defined below) to be
filed with the Court. The process for developing the Stipulation and Order shall be as
follows:
A. Within 60 days after this Agreement's execution, the Parties, in
consultation with City, shall:
i. Develop and agree upon information describing City's planning horizon
and reasonably anticipated future needs for City's service area (as such
terms are defined in I.C. § 42-202B), including the Project ("City RAFN
Information"). The City RAFN Information shall include information to
the satisfaction of the director such as the following for its service area:
(i) the projected population based upon credible demographic information,
(ii) the City's existing water rights portfolio, (iii) the projected water
demand for the planning horizon for City beginning 2007, and (iv)
information on the quantity of water appropriated for permit 63-32573 and
appurtenant to the M3 Eagle Planned Community in relationship to the
water needs of the City's service area. The City RAFN Information shall
not include information regarding the service areas of other municipal
providers which are located within either the City limits or in the City's
comprehensive planning area. IDWR shall review City RAFN
Information and notify M3 Eagle and City in writing of its completeness
upon finding that no additional or different information is required.
ii. Develop and agree upon findings and conclusions, in addition to those
already agreed to as set forth in paragraph 5.E, below, based on the
Hearing Record ("Findings and Conclusions"), which shall be included
in the Stipulation and Order as Exhibit A.
iii. Develop and agree upon conditions ("Permit Conditions") to be
included in the water right Permit, which shall be included in the
Stipulation and Order as Exhibit B.
B. Within 30 days following the conclusion of the 60 -day period described in
paragraph 1.A, the City shall:
i. accept assignment of the Permit by executing and filing with IDWR an
assignment of permit form or other appropriate instrument determined by
IDWR; or
ii. notify M3 Eagle in writing that it declines to accept assignment of the
Permit, in accordance with section 2.2(h) of the Development Agreement.
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 3 of 7
Ati-
2. Proceedings if City accepts assignment. If City accepts assignment of the Permit (as
provided for in paragraph 1.B.i, above), then, within 90 days of the District Court's
approval of the Stipulation and Order (as provided for in paragraph 4, below), IDWR
shall reopen the Hearing Record and conduct a hearing to take evidence and testimony,
but only for the limited purpose of receiving or recognizing evidence of (i) City's
annexation of the Project, (ii) demonstrating the City's planning horizon and reasonably
anticipated future needs for City's service area, including the Project, based on City's
current water rights portfolio and planning information, (iii) information on the quantity
of water appropriated for permit 63-32573 and appurtenant to the M3 Eagle Planned
Community in relationship to the water needs of the City's service area, and (iv) any
additional matters mutually agreed upon by the Parties. The Parties agree that M3 Eagle
may fully participate in such proceedings.
3. Proceedings if City declines assignment. If City declines to accept assignment of
the Permit (as provided for in paragraph 1.B.ii, above), M3 Eagle shall have an additional
180 days following City's notification of such to notify IDWR that M3 Eagle has entered
into an agreement with an alternative municipal provider ("Municipal Provider") to
accept assignment of the Permit and serve the Project ("MP Agreement"). Within 90
days of the District Court's approval of the Stipulation and Order (as provided for in
paragraph 4, below), IDWR shall reopen the Hearing Record and conduct a hearing to
take evidence and testimony, but only for the limited purpose of receiving or recognizing
evidence that (1) M3 Eagle has entered into an MP Agreement, (2) the Municipal
Provider is a municipal provider as defined in I.C. § 42-202B(5), (3) the Municipal
Provider's service area will include the Project, (4) the Municipal Provider has adequate
financial resources, and (5) the Municipal Provider can and will serve the Project with
water diverted under the Permit resulting from the Second Amended Order within the
constraints of the Permit. In addition to the above, the parties recognize that the director
will need to determine whether the M3 Eagle Planned Community can be served by the
Municipal Provider and the effect, if any, of adding the Permit to the Municipal
Provider's water rights portfolio. Accordingly, if an MP Agreement is submitted in lieu
of the City RAFN Information and City's acceptance of the Permit, IDWR shall require
the evidence in the Record be sufficient to process a RAFN water right for the Municipal
Provider.
4. Stipulation and Order. Within 30 days after (i) City accepts assignment of the
Permit (as provided for in paragraph 1.B.i, above) or (ii) M3 Eagle has notified IDWR
that it has entered into a MP Agreement (as provided for in paragraph 3, above), as the
case may be, IDWR and M3 Eagle shall prepare and submit to the District Court a
stipulation and order for dismissal in M3 Eagle v. IDWR conforming to the terms of this
Agreement (the "Stipulation and Order") and shall advocate for its approval by the
District Court. The Stipulation and Order shall contain Exhibits A, and B, described in
paragraph 1.A, above, and shall remand this matter to IDWR for further proceedings
consistent with this Agreement.
5. IDWR's Order on Remand. Following the remand proceeding described in
paragraphs 2 and 3, above, as the case may be, IDWR shall issue a second amended final
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 4 of 7
order ("Second Amended Order") consistent with: (1) the evidence received during the
remand proceedings, (2) Exhibits A and B included with the Stipulation and Order, and
(3) the other provisions of this Agreement. IDWR shall issue Permit consistent with the
Second Amended Order.
A. If the City RAFN Information is presented on remand (paragraph 2, above),
the Second Amended Order and Permit shall issue upon presentation of evidence in the
remand proceedings that establishes, to the satisfaction of the Director, there has been
sufficient information provided to process a RAFN water right for the City.
B. If an MP Agreement is presented on remand (paragraph 3, above), the Second
Amended Order and Permit shall issue upon presentation of evidence in the remand
proceedings that establishes, to the satisfaction of the Director, there has been sufficient
information provided to process a RAFN water right for the Municipal Provider in these
circumstances.
C. IDWR's Second Amended Order shall replace the Amended Final Order and
shall include:
i. the findings in paragraph 5.E, below;
ii. the findings, conclusions, and conditions contained in the
Stipulation and Order's Exhibits A and B and
iii. other findings and conditions consistent with the evidence accepted
pursuant to paragraph 2 or 3, above, as the case may be, and with
the other provisions of this Agreement.
D. Once the Second Amended Order is final and unappealable, the Amended
Final Order shall be void and shall be afforded no precedential value by IDWR, the
Parties, or whichever entity the Permit is assigned to as provided for herein ("Assignee").
E. In addition to others agreed to by the Parties and included in the
Stipulation and Order's Exhibit A (if any), findings and conclusions in the Second
Amended Order shall include the following:
i. IDWR recognizes that City or another qualified municipal provider may
hold, and the M3 Application contemplates, a permit specific to the service
area described in the M3 Application (i.e. conforming to the M3 Eagle
planned community project (the "Project")) described in the December 27,
2007 Pre -Annexation and Development Agreement between City of Eagle
and M3 Eagle L.L.C., Instrument No. 107170114, Ada County Recorder's
Office ("Development Agreement"), which is Exhibit 58 in the record.
ii. The aquifer proposed to supply the water right sought in the M3
Application lies beneath the southwestern portion of the M3 Eagle planned
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 5 of 7
Ate-
community property (i.e. southwest of the green line depicted in Exhibit 18,
Fig. 1), and is part of the "deep, regional flow system" identified in the
Treasure Valley Hydrologic Project model and reports (collectively, the
"TVHP"). Ex. 33D at 49. The water supply in the aquifer is sufficient for
the purpose it was sought to be appropriated as identified in the M3
Application.
iii. At the time the hearing closed, the Project had not been annexed and
therefore was not a part of City. The Project was subsequently annexed into
City consistent with the Development Agreement.
iv. IDWR has deemed M3 Eagle's monitoring plan acceptable.
6. Assignee's Use of the Permit. Assignee may apply to IDWR to change the
authorized place of use or another attribute authorized in the Permit through an
amendment, transfer or under a new RAFN application, including removal of the
Permit's annual volume cap (collectively, "Transfer"). M3 shall not protest any such
Transfer so long as Assignee demonstrates that it will (i) supply water to the Project (as
described in the M3 Application) and will (ii) not use any of the water transferred under
such rights to serve any other properties unless Assignee demonstrates to M3 Eagle that it
has adequate water rights to serve the Project.
7. Other applications by Assignee. This Agreement shall have no effect on Assignee's
existing or future water right permits, licenses, or applications (i.e. any water right
permit, license or application other than the Permit), except that Assignee, in separate
future proceedings, may use and rely on the evidence submitted on the remand of this
matter as described above.
8. Use of existing permit pending other proceedings. Consistent with I.C. § 67-5274,
M3 Eagle or Assignee shall be entitled to divert and use water under the Permit during
the pendency of any litigation challenging the Permit.
9. Time periods. All time periods set forth in this Agreement are subject to extension
by mutual agreement of the Parties and, as necessary, approval of the District Court.
10. Effect and timing of Agreement and Stipulation and Order. If neither City nor a
Municipal Provider accepts assignment of the Permit, as provided for above, this
Agreement shall be void, and the Parties may seek any remedies under the law. Neither
this Agreement nor the Stipulation and Order resulting from this Agreement shall bar M3
Eagle or (as the case may be) City or Municipal Provider from challenging any IDWR
rule or order arising from the remand in this matter. If IDWR and M3 Eagle do not reach
agreement as to the findings of fact to be listed in Exhibits A (as described in Section
1.A.ii above) or the conditions in Exhibit B (as described in Section 1.A.iii above) or if
any other term in this Agreement is not satisfied, this agreement shall be void.
11. IDWR not a third party beneficiary. Nothing in this Agreement or in any IDWR
order arising from it shall be construed as making IDWR a third party beneficiary of the
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 6 of 7
Development Agreement, or authorize IDWR to interpret or enforce the Development
Agreement. The Parties acknowledge and agree that this Agreement is part of a
settlement of a contested lawsuit.
IN WITNESS WHEREOF, the Parties hereto, h g been duly authorized,
have executed this Agreement to be effective on this l %� of Jana 2011.
� Y �Y�
IDAHO DEPARTMENT OF WATER M3 EAGLE:
RESOURCES:
M3 Eagle L.L.C., a Texas limited liability
company
By: C(/ .� By: M3 BUILDERS, L.L.C., an Arizona
Gary Sp an, Interim Director limited liability company, its Manager
By: The M3 Companies, L.L.C., an
Arizona limited liability company, its
sole member
By: nr
William I. Brownlee, Member
M3 EAGLE / IDWR SETTLEMENT TERMS — Page 7 of 7
7
a& 0610
November 11, 2010
TO: John Homan IDWR Deputy Attorney General, and Garrick Baxter IDWR Deputy Attorney
General:
CC: Gary Spackman IDWR Interim Director and City of Eagle -- Mayor City of Eagle, Jim Reynolds
and Council members Michael Huffaker, Norm Semanko, Al Shot�starian, and John Grasser.
RE: Case No. CVOC 2010-03180, Permit Application to Appropriate Water No. 63-32573, in the name
of M3 Eagle, LLC
FROM: North Ada County Groundwater Users Association (NACGU), Protestants represented by John
Thornton and David Head and Eagle Pines Water Users Association (EPWUA) Protestants
represented by Alan Smith and Norman Edwards (individual protestant).
The following document and attachments respond to three Elements related to the negotiations of M3 Eagle
LLC's Application to Appropriate Water No. 63-32573. Those elements are:
1. NACGUAs and EPWUAs and Norm Edwards's response to IDWRs request for a reply to M3
Eagle, LLC's Response to the Protestants Nine Settlement Positions
2. NACGUAs and EPWUAs and Norm Edwards's response to IDWRs request for a reply to M3
Eagle, LLC's Recommended Long -Term Water -Level Monitoring Plan for the M3 Eagle, LLC
3. NACGUAs and EPWUAs and Norm Edwards's requests/concems identified at our meeting
with IDWR Deputy Attorneys General on October 11, 2010
The following is a brief bulleted summary of our points/concerns for each of the three Elements. A more
detailed discussion of Element 1 points/concerns follows the bulleted summaries.
Element 1- NACGUAs and EPWUAs and Norm Edwards's response to your request for a reply to
M3 Eagle, LLC's Response to the Protestants Nine Settlement Positions
• Per IDWRs request, NACGUA, EPWUA and Norm Edwards submitted on August 19, 2010 our
settlement positions (Attachment #1). M3's response (Attachment #2) which IDWR provided
to us on October 11, 2010, ignored and summarily discarded nearly all of our nine (9) settlement
positions after a delay in their response of approximately six (6) weeks.
D Protestants have significant doubts about whether M3 Eagle, LLC is serious in these negotiations.
• It is Protestants' position that the City of Eagle must be a party to these negotiations since it will
likely become the permit and license holder of this water right under the Pre -Annexation
Agreement it made with M3 Eagle, LLC. Moreover, the contractual obligations and commitments
made by the City of Eagle in that "Pre -Annexation Agreement" made it an indispensable party to
these negotiations.
D Protestants submit that the quasi judicial decision entered by the Director of an Administrative
Agency, (i.e. IDWR), is entitled to significant stature and value and cannot and should not be
negotiated away. That decision set forth in the "Amended Final Order of January 25, 2010" is
entitled to stand unless and until altered or changed by the appellate courts.
1
> The Final Amended Order decision by the IDWR Director of January 25, 2010 cannot and should
not be set aside, nullified, or voided by the negotiation process. To do so would make the whole
"protest process" a complete laughable futility. To do so would also invade the prerogative of the
appellate courts.
• The Protestant's main concern has and remains over the sustainability of the aquifer(s) to avoid
injury to our senior water rights. We have provided an excerpt (Attachment #3) that sets forth over
twenty points of concern regarding the sufficiency of groundwater in the North Eagle area
identified by IDWR's Staff experts and M3 Eagle's own expert hydrogeologists that have admitted
ground water level declines, large draw downs, effects to adjacent wells, loss of artesian water, etc.
Element 2 - NACGUAs and EPWUAs and Norm Edwards's response to your request for a reply to
M3 Eagle, LLC's Recommended Long -Term Water -Level Monitoring Plan for the M3 Eagle, LLC
> While a long-term monitoring is important, the most crucial to the Protestants is the assessment as
to the required sufficiency of water supply required by Section 42-203A(5)(b), Idaho Code. This
has not been completed or a finding of fact determined during the 17 days of Hearings.
> On November 2, 2010 we received from IDWR, a copy of a more complete long-term water -level
monitoring plan prepared by Hydro Logic, Inc. for M3 Eagle LLC which begins to address our
Settlement Position #6.
> We support the comments provided by IDWR's staff hydrogeologist, Dennis Owsley, described in
his Staff Memo dated October 28, 2010 (Attachment #4).
> There needs to be an established amount of groundwater level drawdown identified by the
monitored wells that serves as the trigger to initiate mitigation/curtailment thus avoiding injury to
senior water rights. This establishes the "reasonable pumping level" without future lengthy and
costly litigation for the senior water right holders.
• Additional monitoring wells need to be included that are located in and around the Protestants wells
and wells identified by the Protestants during the 17 days of hearings as wells that have "gone dry".
These will serve to identify trends in groundwater levels and triggers for mitigation/curtailment
identification of "reasonable pumping level" for the Protestants wells. Currently IDWR is
monitoring many wells in these areas.
• Water level declines have been identified both by IDWR staff hydrogeologists and M3's
hydrogeologists. What groundwater level will be established to serve as a baseline?
> On Figure 3 of the draft monitoring plan titled "Water Level Trends in Four Up -Gulch Wells at M3
Eagle" (Attachment #5) has an inserted foot note block that attributes the four wells water level
decline to recent decline in average annual precipitation. This is incorrect and needs to be
removed as to the cause of the decline. In fact, 5 of the last 7 years have been essentially at or
above the annual average of 11.66 inches/year identified at the Boise WSFO Airport. This
information is located at the Western Regional Climate Center's website
"http://www.wrccc.dri.edu/summary/Climsmid.html".
> Determination of the direction of the groundwater direction of flow needs to be identified thru
initiation of dye tracing and continued monitoring of well hydrographs located north, south and
2
west of the M3 Eagle well fields. This information will greatly assist in understanding the
direction of groundwater flow and potential impacts from new extractions of groundwater.
➢ How do other wells monitored by IDWR influence IDWR future actions/decisions regarding
possible draw downs in the North Eagle area, including the M3 Eagle area?
> There needs to be an identification of annual cost for this monitoring, duration of the monitoring
into the future and formal agreements identified by the City of Eagle and M3 Eagle, LLC to
guarantee funding into the future.
• There needs to be formal agreements that M3 Eagle, LLC and the City of Eagle will pay in a timely
fashion, for the injury to senior water right holders.
Element 3 - NACGUAs and EPWUAs and Norm Edwards's requests/concerns identified at our
meeting with IDWR Deputy Attorneys General on October 11, 2010
> Prior to any final agreed upon settlement, there needs to be an assessment of the sufficiency of the
water supply, Section 42-203A(5Xb), Idaho Code. There was no assessment or identification in
the Directors Final Amended Order as to the sufficiency of the aquifer to sustain more than the 3.28
cfs of withdrawal without injury to the senior water rights.
> The City of Eagle, whom the water rights application will likely be transferred to shall bear the
initial burden of coming forward with evidence for the evaluation of criteria (a) through (d) of
Section 42-203A(5), Idaho Code. This includes the information relative to financial resources,
Section 42-203A(5Xd), Idaho Code, which requires the following: i. The applicant shall submit a
current financial statement certified to show the accuracy of the information contained therein, or a
financial commitment letter along with the financial statement of the lender or other evidence to
show that it is reasonably probable that financing will be available to appropriate the water,and
apply it to the beneficial use proposed. ii. The applicant shall submit plans and specifications
along with estimated construction costs for the project works. The plans shall be definite enough to
allow for determination of project impacts and implications.
> Determination by IDWR as to the legality of replacing the City of Eagle on the Permit Application
to Appropriate Water No. 63-32573application in terms of appropriately addressing the
requirements set forth in IDAPA 37 TITLE 03 CHAPTER 08 37.03.08 - WATER
APPROPRIATION RULES.
> Address the "Nine Points of Settlement Positions" identified in our August 19, 2010 letter
(Attachment #1).
> IDWR needs to develop a Groundwater Management Plan for the North Eagle area. This is due to
the anticipated large amount of residential and commercial development (Eagle -- Star Tech Center)
and the groundwater level declines in the northern portion of this area.
> Monitor the change in the Boise River streamflow due to the potential effect of groundwater
withdrawals associated with the M3 Eagle and other larger applications for groundwater
withdrawals.
3
Element 1- NACGUAs and EPWUAs and Norman Edwards's response to M3 Eagle, LLC's
Response to the Protestants Nine Settlement Positions:
This information is provided pursuant to your request for a reply to "M3 Eagle, LLC's Response" (included
as Attachment #2) to "Protestant's Nine (9) Settlement Positions" (included as Attachment #1) submitted
to you on August 19, 2010. M3's "Response" which you provided to us on October 11, 2010, ignored and
summarily discarded nearly all of those (9) settlement positions after a delay in their response of
approximately six (6) weeks. As a result, Protestants have significant doubts about whether M3 is serious
in these negotiations. Therefore, Protestants have attached those same nine (9) settlement positions to this
response and demand a direct response to each point and a reply within a period of three (3) weeks. On
November 2, 2010 we received from you, a copy of a more complete long-term water -level monitoring plan
prepared by Hydro Logic, Inc. for M3 Eagle LLC which begins to address our Settlement Position #6. Our
comments and recommendations on this draft plan are included in Element 2.
It is Protestants' position that the City of Eagle must be a party to these negotiations since it will likely
become the permit and license holder of this water right under the Pre -Annexation Agreement it made with
M3 Eagle. Moreover, the contractual obligations and commitments made by the City of Eagle in that
"Pre -Annexation Agreement" made it an indispensable party to these negotiations.
An indispensable party is one who has such an interest in the subject matter of a
controversy that a final order, judgment, or decree between the parties already before the
court cannot be made in that party's absence without having injurious effect on that interest
or leaving the controversy in such a situation that a final determination cannot be made in
that party's absence or it will be inconsistent with equity and good conscience. See 39
Am Jur: Alaska Freight Lines v Weeks, 18 Fed Rules Dec 64.
An indispensable Party has also been defined as one that is unconditionally necessary. See Alaska
Freight Lines case.
In the event a negotiated settlement can be reached it is very improbable that the court will enter any
judgment, order, or decree without the City of Eagle being an active party to the negotiations and a
signatory thereto.
Protestants submit that the quasi judicial decision entered by the Director of an Administrative Agency, (i.e.
IDWR), is entitled to significant stature and value and cannot and should not be negotiated away. That
decision set forth in the "Amended Final Order of January 25, 2010" is entitled to stand unless and until
altered or changed by the appellate courts.
Based on our discussions with you on October 1 apparently M3 Eagle, LLC and their counsel seek to
have you make new factual conclusions about the vastness of the aquifer and the available water supply in
the "North Eagle area"; something that is totally unsupported by the evidence and something that M3 Eagle,
LLC seeks to pass on to you as a crystal clear fact and to pass off as something they did a poor job of
establishing after 16 or 17 days of hearings.
This present case is not the normal situation where negotiations are taking place prior to any iudicial type
decision. There is a quasi iudicial decision herein within the statutory power and authority of the
administrative agency which made it after full and fair hearings. That decision by the IDWR Director of
January 25, 2010 cannot and should not be set aside, nullified, or voided by the negotiation process. To do
4
so would make the whole "protest process" a complete laughable futility. To do so would also invade the
prerogative of the appellate courts. These new factual conclusions which M3 Eagle, LLC seeks to
advance, push forward and establish as a totally exact condition of the aquifer in the North Eagle area would
do just that. This would not only be an inappropriate result of the negotiation process it would also result
in destroying the function of all administrative agencies and their statutory powers assigned to them by the
State Legislature. The administrative decisions made by these agencies of the state would be of no legal
effect or significance.
In response to the assertions of M3 Eagle, LLC we have attached an excerpt (identified as Attachment #3)
the majority of these identified in one of our previous "hearing briefs dated September 11, 2009". That
excerpt sets forth over twenty points of concern regarding the insufficiency of groundwater in the North
Eagle area identified by IDWR Staff experts and M3's own expert hydrogeologists that have admitted
ground water level declines, large draw downs, etc. Keep in mind, this is not what we say, this is what
M3's own expert hydrogeologists say!
In short, Protestants urge that all negotiations must take place within the perimeter of the quasi judicial
decision already made by IDWR and cannot be used to set aside, nullify, or void those findings of fact and
conclusions by law or to supplant them with whatever factual conclusions M3 Eagle, LLC may desire.
ohn L. Thornton
epresenting NACGUA
age, •74,vt 4L72
Alan Smith Norm Edwards
Representing NACGUA Representing EPWUA
5
Attachment #1 - Protestants Nine Settlement Positions
August 19, 2010
To: John Homan and Garrick Baxter: regarding Case No. CVOC 2010-03180 (Application to Appropriate
Water No. 63-32573, in the name of M3 Eagle, LLC
From: North Ada County Groundwater Users Association (David Head and John Thornton), Eagle Pines
Water Users Association (Alan Smith) and Norman L Edwards
Per your request, the following are the settlement positions of the Protestants regarding application to
appropriate water - Water No. 63-32573. Our main concern continues to be the protection of our senior
water rights. We also strongly support the findings and conclusions identified by the Interim Director's
Amended Final Order dated January 25, 2010.
1. Replace the name of "M3 Eagle LLC" with the name "City of Eagle" on IDWRs Amended Final
Order dated January 25, 2010 application to appropriate water -- Water No. 63-32573. This will
transfer the water right application to the City of Eagle, providing enough water for the first 6 years
of the development needs for this portion of the City of Eagle and preserve the original priority date
for this application.
2. IDWR to condition any water right permit to insure that any groundwater withdrawn from under
the M3 property in North Ada County to be used only on the M3 property in the same area.
3. M3 Eagle and or the City of Eagle aggressively seek other surface water sources of water such as:
from the Boise River, Payette River, Black Canyon Canal, purchase reservoir storage within the
Boise or Payette River systems, or develop the proposed storage reservoir in the Fire Bird area
(dam site identified by ACOE in the Boise River Interim Feasibility Study).
4. Provide for a phased water right (five - six year phases that support the 30 year build -out period).
Each phase to allow for an additional 3.28 total flow rate. Each phase is to be approved by the
IDWR and based on an appropriate ground water monitoring plan also approved by the IDWR.
5. Annual volume of water diverted and stored to be 923 acre feet.
6. Development and implementation of an IDWR approved comprehensive groundwater monitoring
plan that will be used to correlate the draw down predictions of M3s Groundwater Model with the
actual monitoring results.
7. IDWR to curtail further development of groundwater withdrawals if monitoring identifies
groundwater draw downs that would result in injury to senior water rights.
8. Continue the North Ada County Technical Working Group studies of the Treasure Valley aquifers
and use this new data and knowledge in IDWR approving additional phase of this water right.
These studies include but are not limited to: Dr Donna Cosgrove Report; Lee Liberty's
Geo -physical studies; the USGS and IDWR studies of the gains and losses of the Boise River and
associated drains/canals and groundwater monitoring wells, USGS geochemistry groundwater
studies; IDWR completions and monitoring of new long-term monitoring wells; studies to better
understand the recharge and discharge and inter -connection of the various aquifers and interaction
with the surface water Boise River flows within the Treasure Valley; incorporate the appropriate
recommendations of the Treasure Valley Comprehensive Aquifer Management Plan (TV CAMP);
etc.
6
9. M3 Eagle LLC to establish a perpetual escrow account managed by IDWR or some other
disinterested party of 2 million dollars to serve as a mitigation of future damages to senior water
rights.
7
Attachment #2 — M3's Response to Protestants Nine Settlement Positions
1. Protection for senior water rights. In accordance with Idaho Code §
42-226, Idaho Code §§ 42-237a through 237h, and Idaho Code § 607, and
the Department's Rules, IDAPA 37.03.011 (as these may be amended
from time to time), water diversion and use under this permit shall be
subject to curtailment when and Ito the extent the Department determines
such diversion and use is causinit material iniurlto Protestants' senior
water rights and is not mitigated.
2. Monitoring program. In accordance wfthlhe•Water Level Monitoring
Plan ("Monitoring Plan") to be provided to the Department as required by
the Amended Final Order, Permittee shall monitor water levels in six wells.
(the "Monitoring Wells") on a continuous basis, and shall make these
wells available to IDWR to monitor. The final Monitoring Plan shall be
consistent with the draft attached hereto, although changes, including the
identification of wells used as Monitoring Wells, may be made to the Plan
at Permittee's option with the Department's concurrence.
3. Phased review of water availabilitv. In order to allow the Department
to ensure that adequate water supplies exist for each upcoming phase of
the M3 Eagle Project's construction during the 30 -year planning horizon
contemplated in the Permit, Permittee shall:
a. file with the Department, on or before June 30 of each year,
all data obtained from its Monitoring Wells during the immediately
preceding period of May 1 through April 30 (the "Monitoring
Year"); 1 and
b. by July 31 after every fifth data submission under
paragraph 3.a, or 90 days before commencing construction of each
separate phase of development, whichever comes first, file with the
Department a monitoring report by a hydrogeologist describing the
results of the monitoring program including the amount of ground
water production under the Permit, aquifer levels, drawdown
effects in the Monitoring Wells due to Permittee's pumping under
this Permit (including the location of pumping wells in relation to
the Monitoring Wells), or similar information as may be required
by the Department.
At Permittee's option and with the Department's concurrence, these
monitoring and reporting obligations may be carried out by the
Department.
' The May 31 through April 30 Monitoring Year is intended to ensure that the highest and lowest water
levels of the year are measured and recorded. (The lowest levels have been shown to occur in September -
October, while the highest levels occur during January -March.)
4. Department's continuing authority.
a. The monitoring and reporting requirements set forth above
shall remain in place throughout all phases of the M3 Eagle project
development unless terminated sooner by order of the Department.
b. If, during the 30 -year planning horizon, the data obtained
from the SVR #9 Monitoring Well indicates the Pierce Gulch Sand
Aquifer water level is more than 30 feet lower than the Baseline Water
Level (defined below), Permittee shall within 90 days of such event, anu
then again on or before July 31 of each year thereafter, file with the
Department a "Drawdown Report," which shall include the information
set forth in paragraph 3.b, above, as well as other information describing
the causes of water level declines. For purposes of implementing this
paragraph 4.b, the conditions specified below as items i -iv shall apply.
i. The "Baseline Water Level" shall be the average water
level measured in SVR #9 during the 365 days prior to the first
date water is pumped to supply uses under this Permit.
ii. Permittee shall report SVR #9's Baseline Water Level
to IDWR within 90 days of the first date water is pumped to supply
uses under this Permit.
iii. To determine water level declines, SVR #9's average
water level during the Monitoring Year will be compared to its
Baseline Water Level.
iv. Water level (i.e. depth -to -water) measurements will be
recorded, corrected, and reported in accordance with the
procedures set forth in the Monitoring Plan.
c. If, during the 30 -year planning horizon, the Department
determines, based on credible evidence from the monitoring or otherwise,
that there is a substantial likelihood that diversion and use of ground water
under the Permit in a particular phase is causing material injury to any of
Protestants' senior water rights, the Department may issue an order to the
Permittee to show cause, after notice and hearing, as toffy the _Permjj e
should not reduce existing diversions under the Permit, forego additional
diversions; or provde adequate mitigation to remedy such injury. Such
hearing shall be held according to the Department's rules governing
contested cases and its conjunctive management rules and a final decision
shall be made on the record according to the evidence.
d. In exercising its continuing authority under this paragraph
4, the Department shall take into consideration all monitoring data,
9
hydrogeologic evidence, and other information pertaining to the question
whether Permittee's ground water pumping under this Permit is causing
material injury to any of Protestants' senior water rights, and shall make
available to Permittee all such information the Department has.
10
Attachment #3 — "Sufficiency of the Water Supply and Impacts to the Aquifer"
1. "All wells classified as undifferentiated or Pierce Gulch display negative water levels trends ..."
(Exhibit 906, p 4, McVey IDWR Staff Memo)
(See also Exhibit 50, p. 4, Conclusion #2, McVey Memo)
2. "A declining water level trend of 0.3 to 0.6 feet per year calculated using linear regression...".
This is for the water level trends in Four Up -Gulch Wells at M3 Eagle. (Figure 3 identified in the
"Recommended Long -Term Water -Level Monitoring Plan for the M3 Eagle, LLC"
. Prepared by Hydro Logic, Inc and submitted to Bill Brownlee/ M3 Eagle, LLC October 15, 2010)
3. "Some wells will have to be deepened or replaced." (Hydro Logic, Inc. - 2008)
(Exhibit 12, p. 241, item #19)
4. "These high capacity wells will cause drawn downs that will affect other wells." (Hydro Logic, Inc.
- 2008) (Exhibit 12, p. 241, item #19)
5. "Artesian wells may cease to flow between Eagle and Star." (Hydro Logic, Inc. - 2008)
(Exhibit 12, p, 241, item #19)
6. "However, because the M3 Model was not calibrated to aquifers other than the Pierce Gulch Sand
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 within the Payette
River Valley would be necessary to use the M3 Model for predictions in these aquifers."
(Exhibit 16, 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, Utting and Squires, 2008, p. 33.)
7. "Ground water to be withdrawn by M3 Eagle ... will be from subsurface flow that has already
departed the Boise Basin on it's way to the Payette Basin so the impacts to existing water users ... near
Eagle are predicted to be small."
(Exhibit 42, Tab 4, p. 1)
8. Several other hydrologists do not believe there is sufficient data to support the Payette flow theory.
Newton, Petrich, Urban
(Exhibit 42, Tab 4, p. 6, 3rd paragraph)
Ralston
(Exhibit 47, p. 9., 1st two sentences)
(Exhibit 47, p. 13, 2 a, 1st paragraph, last sentence)
Owlsey & Vincent IDWR Staff Memo
(Exhibit 50, p. 15 - 17)
9. "Water levels would likely be lowered in some of the domestic wells under long term pumping."
(Exhibit 42, Tab 4, p.10)
10. "Wells closer to the M3 site would be impacted to a larger extent."
(Exhibit 42, Tab 4, p. 10)
11
11. "PGSA water levels appear stable at the current level of ground water withdrawal in the Eagle
area."
(Exhibit 42, Tab 4, p. 14)
12. "... the actual extent of any future impacts cannot be truly known until actual pumping wells are in
place ..
(Exhibit 42, Tab 4, p. 7)
13. "Increased withdrawal coupled with decreased replenishment will eventually lead to water level
declines."
Squires, Wood, Osiensky
(Exhibit 68, p. 62)
14. "The Boise aquifer system is limited in aerial extent and depth."
Squires, Wood, Osiensky
(Exhibit 68, p. 76)
15. "Reduction of recharge, coupled with increased pumpage will result in lowered water levels in
wells."
Squires, Wood, Osiensky
(Exhibit 68, p. IV)
16. "... Pumping from a deeper zone ultimately affects the shallower portions of the aquifer.
Similarly, pumping a shallower zone ultimately affects deeper zones."
(Exhibit 12, p. 7) (Re -Analysis of 16 Aquifer Tests)
17. "In our opinion, the possibility of limited Long-term sustainability for the PGSA also cannot be
discounted based upon currently available data."
(Exhibit 50, p. 12, IDWR Staff Memo)
18. "recharge rates to the deeper regional aquifers are limited" - "most recharge occurring in shallow
aquifer zones does not reach lower zones."
(Exhibit 50, p. 17, IDWR Staff Memo)
(Quoting from Petrich 2004, pgs. 19 and 21)
19. "contemporary seepage from rivers and/or irrigation diversions is not the primary source of
recharge for most deeper regional aquifers."
(Exhibit 50, p. 18. IDWR Staff Memo)
(Quoting from Hutchings & Petrich, 2002, p. 58)
(See also Exhibit 33G - Hutchings & Petrich, 2002, p. 58)
20. "This finding indicates that ground water in the deeper aquifers entered the flow regime prior to
atmospheric testing."
(Exhibit 50, p. 18, IDWR Staff Memo)
(Quoting from Hutchings & Petrich, 2002, p. 58)
21. "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 ..
(Exhibit 50, p. 18, IDWR Staff Memo)
12
(Quoting from Petrich 2004, p. 19)
(See also Exhibit 33G, p. N)
22. ... "the PGSA ground water originated almost exclusively from geologically ancestral Boise River
surface water."
(Exhibit 43, Glansman & Squires, p. 5, 3rd paragraph) (p. 4, 3rd paragraph)
(Exhibit 33G - Hutchings & Petrich, p. N
23. "Additional ground water level declines were observed in individual wells in other areas, including
the area between Eagle, west Boise, Meridian, and Kuna." Shallow wells may be especially sensitive to
changes in local surface water irrigation patterns in areas where the water table is not in direct hydraulic
connection with surface channels (by virtue of drains and canals)."
(Exhibit 33, Treasure Valley Hydrologic Project Executive Summary- Petrich et al 2004, pages 24 and 25)
24. "For example, agricultural irrigation withdrawals (non -supplemental) are concentrated in areas
where surface water irrigation is unavailable, and municipal withdrawals are concentrated near the urban
areas of Boise, Nampa, Caldwell and Meridian. As a result, withdrawals may exceed recharge in Local
areas within the Treasure Valley, resulting in local water level declines.
(Exhibit 33, Treasure Valley Hydrologic Project — Water Budget for the Treasure Valley Aquifer System
Executive Summary- IDWR Staff, Scott Urban 2004, p. iii)
It is very apparent from the above set forth points that M3 Eagle very well knows that they are going to
damage many area well owners, both domestic and irrigation, who have senior water rights. Their own
expert hydrologists acknowledge that area wells will have to be deepened or replaced, water levels will
decline, artesian flows will be eliminated, and large draw downs will eventually occur when these high
capacity wells are pumping on the M3 site.
13
Attachment #4 - IDWR's Staff Memo dated October 28, 2010 "Comments on Recommended
Long-Term Water Level Monitoring Plan for the M3 Eagle, LLC
14
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: October 28, 2010
To: John Homan and Garrick Baxter
From: Dennis Owsle*2
cc: Sean Vincent
Subject: Comments on Recommended Long -Term Water Level Monitoring Plan for the M3 Eagle,
LLC
Per your request, a technical review of the proposed ground water monitoring plan provided by M3
Eagle, LLC has been conducted. The following comments are the result of the review.
General Comments
There are no monitoring wells currently designated to monitor water levels in the shallow aquifer. Zone
5 of M3 Test Well #1 and Zone 3 of M3 Test Well #4 should be added to the currently proposed
monitoring well network to allow assessment of the impacts of pumping on the shallow aquifer. Both
wells are already part of the proposed monitoring network. The inclusion of these two shallow zones
will result in a final monitoring well network that includes the currently proposed six deep wells/zones
and two shallow zones, for a total of eight monitoring zones, and an undetermined number of
production wells that will also be monitored.
Aquifer testing. The Department requests the electronic data and analyses for all aquifer tests
conducted on behalf of M3. At a minimum, this will include the 24-hour aquifer tests required by the
Department of Environmental Quality for any newly constructed Public Water System supply wells and,
hopefully, any longer term tests that are performed as well. Multiple issues were discussed throughout
the administrative hearing process for the M3 Eagle, LLC water right application regarding hydraulic
connections within and surrounding the M3 property that were not fully resolved based upon the data
from the 9 -day SVR#7 aquifer test. An aquifer test of longer duration would provide data that might be
used to resolve some of the concerns raised by Department staff during the administrative hearing.
10/28/2010 Memo to John Homan and Garrick Baxter from Dennis Owsley, Hydrology Section
Page 2 of 4
Specific Comments
1) Page 1, first paragraph. The proposed monitoring plan indicates "The M3 Eagle, LLC (M3) has been
monitoring groundwater levels in the wells on its property beginning in July of 2006 and has shared
that data with the Department of Water Resources (Department or IDWR) since that time." The
most recent data submitted by HLI on behalf of M3 comprises hand measurements and data logger
files that are current through November of 2008. This water level data was submitted in support of
the administrative hearing for M3 Eagle, LLC. Of the data submitted, only the hand measurements
were useful to Department staff as the data logger data were provided in an encrypted, unusable
format and the data were not labeled. The Department has since made several requests to HLI for
the data collected since then but has not yet received any of the more recent data. The Department
again requests this data from M3.
2) Page 1, last paragraph. Revise the number of wells to be monitored reflecting the inclusion of the
two shallow monitoring well zones as described in the general comments.
3) Page 1, 4" sentence in the last paragraph — insert "be" between "wile' and "monitored".
4) Page 2, Wells to be Monitored. Revise this section to include the two shallow monitoring well zones
described in the general comments.
5) Page 4, first paragraph. The data submittal needs to include proper labels identifying each
parameter (e.g., date, depth to water, pressure above transducer, temperature, etc.) to allow data
interpretation by the Department. In contrast to the previous submittal, the data logger data should
be provided in an MS Excel® spreadsheet or other unencrypted format that allows the data to be
copied and pasted in order to facilitate analysis by Department staff.
6) Page 5, Barometric Efficiencies (BE). The reported BE for 1W#1 -Zone 3 is 0.33 in the proposed
monitoring plan. In a previous report (Reanalysis of 16 Aquifer Tests in the Greater Eagle -Star Area
of North Ada County, Idaho, 2008), this well had a reported BE of 0.52. This inconsistency should be
addressed, and it should be verified that the correct BE is reported for each of the designated wells.
7) Pages 6-13, Monitoring Protocol. The serial numbers for each of the data loggers installed needs to
be included and, in the event of a change in data loggers, M3 should provide a brief description of
the reason for a change and any influences such changes may have on the data reported.
8) Pages 6-13, Monitoring Protocol. Details relating to well head equipment and measurement
protocols for the two shallow monitoring zones need to be included in this -section.
9) Page 14, Measuring Instruments. The annual report should document specific differences measured
in the electric tape recalibration process versus the steel tape measurements. The first annual
2
10/28/2010 Memo to John Homan and Garrick Baxter from Dennis Owsley, Hydrology Section
Page 3 of 4
report should include any calibration measurements from the previous years of monitoring, dating
back to July of 2006.
10) Page 15, Permanently Installed Flow Meters. The installation and calibration of the flow meters
installed on all of the production wells must meet Department and manufacturer standards. Flow
meters must be full profile electromagnetic (non-mechanical) flow -meters. In addition, M3 must
allow property access by the Department staff to conduct field inspections during installation and
periodic verifications of the instrument calibration process. A measurement plan for the installation
and calibration of the flow meters must be approved by the Department prior to installation.
11) Page 15. Interpretation and Reporting. The indication on page 15 that "all field and digitally -
acquired data will be submitted to IDWR on July 31; after the high water level period has been
reached and passed" conflicts with previous statement on page 4 that the "hydrographs for each,
the raw data, and the analyses conducted by HLI, will be submitted to IDWR by July 315` of each
year" (emphasis added) since the statement on page 15 implies that only the raw data will be
provided to the Department and that it will not be submitted prior to July 31 under any
circumstances. Department staff requests the raw data be submitted at a minimum of twice per
year, within two weeks of collecting data during the high water level period and within two weeks
after collecting data during the low water level period. According to the proposed monitoring plan,
the high water -level period occurs between January through early March, and the low water -level
period occurs between September through October. The raw data should be submitted in
electronic format, via email or provided on a compact disk, with the proper formatting and labels as
stipulated in specific comment 5 above.
12) Page 15. Interpretation and Reporting. Data will be submitted to the Department at a minimum of
twice annually, regardless of the amount of water (if any) that was being diverted in the previous
year.
13) Page 15. Interpretation and Reporting. A date for the submittal deadline of the interpretative
report produced after five years of monitoring needs to be established.
14) Page 15. Interpretation and Reporting. The section of the interpretative report devoted to ground
water withdrawals should include details regarding the duration and rate of each production well on
the property. Static and pumping water levels for the production wells need to be detailed in this
section as well.
15) Figure 3. Caption states "A declining water level trend of 0.3 to 0.6 feet per year calculated using
linear regression, is linked to a recent decline in average annual precipitation." The caption should
be revised to read: "The plot shows a declining water level trend of 0.3 to 0.6 feet per year
calculated using linear regression."
3
10/28/2010 Memo to John Homan and Garrick Baxter from Dennis Owsley, Hydrology Section
Page 4 of 4
16) Figure 3. M3 Test Well #1 is not included in the figure. This well is one of the designated monitoring
wells and should be included in the plot to show seasonal fluctuations prior to the development of
the water right. In addition, any data collected from Zone 5 of Test Well #1 and Zone 3 of Test Well
#4 should be included in the plot.
4
Attachment #5 - Figure 3 "Water Level Trends in Four Up -Gulch Wells at M3 Eagle" from
Recommended Long -Term Water Level Monitoring Plan for the M3 Eagle, LLC, October 15, 2010
18
Depth to Water in SVR #9 feet bmp
Water Level Trends in Four Up -Gulch Wells at M3 Eagle
2006 2007
194 ' , 1 r ! I I ? , '3 I 1" I , r I I P I I I }
2008 Year 2009
_/ _ J _ y _ _ 1_ _ .� _ ♦ _ L _ 1_ _ _ .. _ _ ►. _ I_ _1 _ .� _ 1 _ L _ I_ _1 _ J _ _ .. _ 1_ _I _ J _ 1 _ L _ 1- _I _ _ 1
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1
1 1 1 I 1 1 1 1 1 1 1 I 1 1 1 1 I T. 1 I 1 ( 1 1 I I 1 I f 1 1 I I t I 1 I 1 1 I I 1 1 1
DTW In SVR #9
-r-1-l-r-r-(-1-i-T-r-1---i-r-r-r-1-i-T-r-1--1-Z-- -1 p r-r---1-i-T-r-i -1-l-T-r-'r-I-I--T-r-r-1"-1-T-r-r-I--1-1-
19fi_ , .7 ._ 1._ L_1 Iw 1 1 - I 1 1 � 1 1 . Decline about 0.51 Wyr I 111111411/r 1
1 1 1 1 I r I 1 1 1 1 - 1 1 1 I 1 1 I r 1 1 1 I
." -1 -r -r-1- I r -- -r- -a_ r-,-:1- T r - I 1 r r 11 T r l 1 T r. I T r l
-a- «- -1--1---+- -I- - --- -- -:- , *- -1.,1:-„. -� -- --
- - 1--,-•,-4-,---,---,-,.-,•.WL=0.50531-817.32.
I 1 I 1 1 1 I 1 1 1 I I 1 it- 1 -+
I 1 1 1 I
-4..-1--.1,-,-1 •
I 1 1 1 1 I 1 1 1 1 1 1 1 1 1 1 1 1 1 I 1 1 1 1 I 1 I 1 1 1 I 1 I 1 I I1 - I r l _"r -.4"".. I 1 - I I I 1
-1-1-r-r-r-I-i-r-1--1---1-T-r-1--I-l-r-r-r -I-1--r-,--I-1-T-r-I--•1-l-7-r---1_'1_7-r_i -7_? 1_-17'-M1i--1�-1.1.
.... --I ... r..1-•-I--I--I-L-1•-I---4_{-H•-•-I-_I-4-+-r---1-..1-4
-1 - J - - - L - 1- 1- J - 1 - L -'- - - J - L - L - t- - J - 1 - L - I- -I - J - " - L -'- -I - J - 1 - L - I- -I - J - 1 - L
I I
1 I
1 J
2010
..,_♦_L _1__I-.1_ 4 1__1___1
1 1 1 1 1 1 1 1 1 r 1 1 1
2011
1 i I 1? I I ''
198
200
1 1 1 1
-I- -I - { - • - r -I- -1- i - • - r _,_ - - ti - • - F _,_ -I - '1 - ♦ - r _,_ -1
__I_1_J_L_L_I__I_J_1_L_1-__J_1_L_I__I_J1_L_I__I_J-. _LIJ 1 L 1 1 1
i 1 1 1 I I I 1 1 1 I I I 1 I I 1
- I i 1 1 1
1
1 1 1 1 1 1 I I 1 1 1 1 1 1 1 1 1 1 1 1 I I 1 1 1 1 1 1 1 : 1 I
202
--I-J-J_1_L_I-J-J_1_L_'---J-L-L-'--J-1_L_I--1_J-..
1 I I 1 I I 1 1 1 1 1 { I I I I 1 1 1 1 7 1 DTW in TW #4 Zone 3
-11111111111 11111111111 • Decline about 0.37 ft/yr - 1 1
t - r - I _ _, _ _� _ . 7 -
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 11 1 I 1 1 1 1 1
1
1
1 1 1 1 1 I 1 � I I I I 1
1 I J 1 L 1 1 _ 1 L 1 I 1 L 1 I 1
1 1 1 1 1 1 1 1 1 I I I 1
1 1 1 1 1 1 1 1 : 1 1 . 1 1 . 1 1 1 1 1
1__L_+__1_ _1 L_ L -L____1_
I i ( I 1 , 1 1 1 I 1 1 1 1 r 1 1
11
1- -1
I I
11
1 1 1 1 1 1 1 1
1 1 I I 1 1 1 1
1 1 1 1 1 1 1 1
1 1 1 1 1 1 1 1 1 1 r
19'.. 7.11-11.1=1=1.1.1.6. 1 1 I t I 1 1 1 I I 1 I 1 I 1 I I I I 1 1 I I I I I I I 1 I 1 I I I 1 I- I 1 1 I I 1
-I--t-r-r-1--1--t-f_1••_1-_ •rt �l-.1-r-� 4, �.-�r•.1-1- t -r -r -1-ti-1-r- -1-t-r -l--I-1-t-r-r-I---Y-♦-r �j�
1I_J_1_ L_ 1___ J_ 1_ L_ 1__I-J_1_L_I__I_J_. _L_e _I _ LI�rJ L_1_J_1_L_l. _1_-_,.L_t_ ••�=0.3742t-551.16_
- ...-i
��
I 1 I 1 i 1 1 i I I 1 I 1 I I I I I I I 1 1 I I 1 1 II
---- 1---1 ---1 ^I -----r ^^-1-1-1-r-1--I-1- -r -I--1-�-1 1 1-r-1--1--1-1 -r 1 1
-1 -1-/-L-1--1-..1-1-1.-I---1-/-L-1--1-1-1-L.-1--1-.1 _L_I---I.. J..1 _.,_I-J..1..E_1__t-..1..J..L-1_-I--- J
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 I 1
1 1 1 1 1 I I 1 I I I 1 1 1 1 1 1 1 1 1 , 1
r - r -1- 1 -
1.1111.1.... I 1.
IQ.
E
132 0
eo
'134N
-136
1
1 I 1 1 1 r w
'138
1
__1_J_J_1_L_1_J_1_L_L _1___1_1 _L _1__1_J_♦_L_1__1_.•_ _L I 1 L I 1 J 1 L 1 J ._L_._ I J 1 L :_ 1 1 1 L 1 I. L 7 1 1
1 1 1 I 1 1 I I 1 1 1 1 1 1 1 I 1 1 I 1 1 I 1 1 I 1 I I 1 I I 1 1 I I . I I 1 I 1
1 1 1 1 1 I 1 1 1 1 I I 1 I 1 1 I 1 I 1 1 1 I 1 1
-I - i- 1- r- r-11-21-21-; - r -1- -- •1 - T - r -I- -it- -1 •• T- r -I- -it- 1- - r I I 1 T r 1 1 7 T r 1 1 1 r 1 1 T r I 1 1 r r 1-1 1 r r -1- ^1 - 1 -
1 1 1 1 1 1 1 1 1 I 1 1 1 1 1 1 1 1 1 1 1 1 I I 1 I 1 I I 1 I I 1 I 1 1 1 1 1 1 1 1 I_ 1 1 1 1 1 1 1 I I 1
1 1 1 . 1 I I 1 I 1 1 1 1 I I I 1 1 1 1 1 1 1 I I I 1 I I I I 1 t I I 1 I 1 I 1 I 1 1 i 1 I r 1 I
--1--1-7-r-r------r-r9-T-r-rr-r-I-1-, -r-1--1-.-
_1_J_J_L_L_1___J_L_L_I__I_�_-_L _I__I_J__._L_I-_1_J_1 _L_1_ I J 1 I J J_L_1__1_J_1_L_i__1___1 _ 1.-
262
DM in T1N #3 Zone 4
-r -I -i - r - r -r -I - r - r - r-r_--r-r-I--I--t-r-r-r-1-r- r-r--1--1-1-r-I--I-- f r-r-1---1-r-Decline about 0.34 ft/yr
__1__I_J_L_L-1_-1_J_1-1. ._I.• a-L-{--1--I_J-1-,-1_..1_.1....- 1_L__-1_.J_1_♦__I__I_J_!-L l 1 __1-L _
I I 1 I 1 I 1 I I I I ti I I 1 I 1 1 I I I 1. 1 1 1 I 1 I I 1 I 1 I 1 I I I I I 1 1 I 1 I I I I I I I I 1 I I I 1
264
266
268
1 1 1 1 1 1 1 1 1 1 1
1 1
1 1 1 1 I I I 1
-,--1-r-r-I--I--r-
1 1 1 1 1 1 1 1 L 1
--�-r-r
1
1• 1 1 1 1 1 1 1
1 1 1 1 1 1
11.: -1_ -1
I =1- 1
• I ' 1- ' 1 1 1 1 1 1 ---- , -
-;
--1-1- r-1-i-..-r-1-1-1-•f r ---1-1-T -r-, T r -or -11;m1,-
, WL II 0.3395t - 416.91
1 1 1
-1--r-r-i-1- 1 -r -r 1----r-r-r-1-�-r-r-r-1-i--r-,--1-i-T-r-�-1--T-r---I- i -T -r r -1 -1 -T -r -i
- .. - ♦ _ I- -I-
-•I - - - •- _ ,_ - - •1 - �• - �• _ ,_ -I - -1 - } -' r _ ,_ -, .. y .. - p - 1- _, _ •� - { - '- _ ,_ -I - -� - { - 1• - - -I - -� - { - 1• - I- -t-- -1 .. ♦ - F'
1
1 1 1 1 1 1 1 1 1 1 1 1 1 l 1 1 1 1 1 1 1 DTW in TW #2 Zone 2 1 1 1 1 1 1 1 1 1
-1-7-r-r-I--1-i-r-r-1---7-T-r-,--I-1-r-r -I I -1 -T -r --- 1 -1 -7 -r -r -I -1 -T -r
-•- Decline about 0.59ff/yr-.-----1--.-.-•-I--1- .-•---/
J I J 1 ' J 1
1 1 J 1 1 I 1 1 1 1 1 I 1 I 1 1 1 1 1 1 1 I 1 1 1 1 1 1 1 1 I 1 1 I 1 1 1
1 I I 1 1 , I 1 1 1 1 1 1 I I I I 1 1 I 1 1 I 1 1 1 , I 1 11
I t
I 1
-
-sib�-` ' I -J -1_L I-- J L L 1- I_J-1_L -1-
1 - 1 I I� I r I r I r 14rw � I 1 1 1 i I I
I ti
J _ J - L - L _1_ -1- J - 1 - L -1- - - J - 1 - L -I- 1- J - 1 - L -1- -1- J
1 1 I I I 1 1 I 1 4-4 1 I I 1 1 1 1 1 1
I 1 1 r { 1 I
I I
_ _I!. J la ' . .1 _ 1 _ L _ I_ _ 1 _ J _ 1 _ L _ I_
t 1 1 I I I I I 1
r -1- 1 - T - r -,- -I- - T - r - - -,- 1 - r - r -1
1
1
-'-- -J-
r------r-r -r
L t 1 1 , 1 . J _
1 1 , I 1 1 1 1
_;_ :WL= 0.5866t-910.54
J _ J _ L _ L -I- -I - J _ 1 _ L -1- _ - J _ 1 _ L _ 1_ _1 _ J _ 1 _ L _ 1_ _I _ J _ _ IL
-I--'-J-1
1 1 1 1
-1.-
-1-
1
-
J _ 1 _ L
I I 1
--'-J- 1- L-1--1--1-1_L-I-
I t 1 1 I I I I 1
_ 1 _
r r
- 1- -I- - - 1 _ ` - t- -I- J - 1 -
11111111111
HAD Lret. irc
Boise, Idaho
1 1 1 1 1 1 1 1 1 1 1
I 1 1 1 1 1 1 1 1 1 1
1111111111
This figure presents hydrographs of four wells completed in the PGSA in the "up -gulch” portions of M3 Eagle property (away from the
pumping centers near the southwest "panhandle"). The highest levels occur during mid -winter with the lowest levels during late summer,
correlating with annual irrigation pumping cycles. A declining water level trend of 0.3 to 0.6 feet per year calculated using linear regression,
is linked to a recent decline in average annual precipitation.
216
:218
2220
222
Figure 3.
Depth to Water in TW #2 Zone 2 feet bmp
6 c i It; 6-( o
Comments to Council, M3 water rights application, 1/25/11
Mayor Reynolds, Chair Shoustarian and members of Council:
I don't pretend to fully understand the January 16, 2011, settlement agreement between IDWR
and M3 and I realize that Eagle is not a party to that settlement. Nevertheless, I hope you will
indulge me with a few short remarks about it.
Here's the essence of how all this rolled out for the protestants to M3's application: Initially
IDWR granted M3 a partial right because it rejected M3's argument that it was a qualified
municipal provider and thus entitled to a full right. Because only a partial right was granted,
protestants' request for monitoring and mitigation was deemed not necessary. With a name
change on the application, IDWR will grant a full right to a bona fide municipal provider...but it
appears from this settlement agreement that protestants may still be denied their right to be
heard on monitoring and mitigation
Does that seem right to you? It seems to me to be some pretty impressive magic...and dark
magic at that. In both situations—partial or full right, protestants are denied consideration of
our monitoring and mitigation case as senior water rights holders, even though by statute and
IDWR procedure we have every right to that consideration.
This is a travesty. And, if you decide to accept assignment of this application, I hope that you
will insist that protestants be heard and included as part of the other matters that can be
introduced in future proceedings by the recognized parties to those proceedings. To do
otherwise would perpetuate an egregiously unfair maneuver by the parties to this settlement,
IWDR and M3.
As senior water rights holders, we have only asked that any new aquifer withdrawals proceed
responsibly and cautiously, with appropriate safeguards for our wells. We ask you to stand
with us on this, as members of your community and in fairness.
But onto the matter most at hand tonight...
Presuming I read this settlement correctly, the immediate question before you is whether or
not you will replace M3 as the water rights applicant, seeking the entire right as reasonably
anticipated future needs. If you decide not to serve as applicant, M3 is free to use a private
provider, presumably United, to serve their development. This is a hard decision and one I don't
envy you making; I can see advantages to either a municipal or a private provider.
It seems, however, that among the questions you consider as you make this decision are the
following:
Is managing a water business a proper role for a municipality or is that business better served
through the private sector? If it is a proper role for government, is Eagle prepared for this huge
expansion? To grow the expertise and budget to manage a large water system, including the
costs of monitoring and mitigation?
You inherited this development agreement from your predecessors, since not one of you was in
office when it was negotiated. Your predecessors obviously thought that government would do
a better job on water system management than the private sector, since the negotiated DA
terms include Eagle assuming ownership of the M3 -built system as it's completed.
Do you agree with that decision? If not, you have the opportunity under the terms of this
settlement agreement to reverse it. You can decline to replace M3 as applicant and let that
role fall to United.
What messages do you send to the affected communities by the decision you make?
Your predecessors on Council, in a rushed manner just before their terms expired, approved a
project that was highly controversial and generated intense opposition from the community.
How will citizens in the Eagle community react to a decision to step in and take over M3's
responsibility to secure the water right, especially when another option...that of United
Water...is available?
The M3 development model approved by the previous Council was atypical and, as it turns out,
very risky. Unlike other developers who applied for water rights only as they needed them on a
phased basis...and received those rights without lawsuits, incidentally...this development model
relied on the whole right being granted before the project began. To get that right, M3
attempted to advance a new definition of "municipal provider", expanding that interpretation
from private water companies and government entities to private, for-profit housing
developers. That strategy did not work. With M3 as applicant, IDWR grants only a partial right;
the entire right would be granted only to either a water company or, in this case, the City of
Eagle.
So now M3 asks you to help them recover from that error...to take responsibility for this critical
piece of their flawed business model. Will you continue to take responsibility for future
mistakes in the business model if other problems appear down the road?
The economic analysis relied upon by your predecessors for estimates of property tax income
for the City, for example, assumed that over 40% of the M3 housing units would sell for
$500,000 or more, even though the entire Treasure Valley market slice at that price point was
only 8%. How comfortable do you feel with that assumption, particularly given the housing
market today? The cost of the services you must supply to Eagle residents of the M3 property
will not drop correspondingly, I'd wager.
And what message do you send to the broader development community if you step in here,
when in the past you've required developers to come to the table providing water rights as well
as infrastructure? Will you do that for all applicants? If not, what justifies M3 as a special case?
As I said, this is not an easy decision. The issue is complex and the consequences permanent
and significant. Please proceed carefully, consider all the short- and long-term consequences
fully and don't be intimidated or rushed.
Thank you for your attention and your consideration.
CJ Petrovsky
4831 Willow Creek Rd
Eagle
State StreetlState Highway 44 is the only east -west connection north of the Boise
River that links communities in Canyon and Ada Counties. Given the regional
connection of this corridor and the following characteristics, agencies are working
together to improve the corridor.
Transit
• Highest ridership route of the regional transit system
Roadway
• Heavy commuter route with congested conditions today and
projected high traffic volume growth
Land Use
• Projected population and employment growth
• Preservation of existing neighborhoods
State Street Transit and Traffic Operational Plan
1
Transit
• Increase existing transit service (Routes 9 and 44)
• Construct Downtown Boise Multimodal Center
(federal funds for project)
Roadway
• Improve connections for pedestrians and bicyclists
• Implement ITS and intersection improvements
Land Use
• Complete and adopt the Land Use Master Plan for the
corridor
• Work with businesses and downtown communities to
encourage transit use
State Street Transit and Traffic Operational Plan
Proposed Near -Term Improve
P. oArro rPATRER w
Intersection Expansions
Route 44 Service Increase tot
30 -Minute Frequency (Peak)
.--...n...-•••...
SH 16 Extension
E1r
LEGEND
Transit Improvements U
OBus Bays
* Downtown Boise Mutumodal Center
— ITS Transit Project
(Transit Signal Priority at Intersections)
Transit Routes
^^ , Route 9 (15+Nnuto Frequency - All Day)
- Route 44 (30 -minute Frequency - Peak)
s
S
TOO Plan and Initial Stages!,
f. Ballantyne Lane Realignment, � of Site Devetopment
y ,
STATE rr
'Completion and Adoption
of Land Usa Master Plan J
.LAZA OR
.....
New Park & Rides)
a3
'Installation of Bus Bays'
1 .es
....R.. slop S•a,'
em.n
Improvement/Expansion'
1 of Existing Park & Ride
lInstallation of Bus Bays'
r.n
Roadway Improvements Land Use Activities cji
LI SIjnalVed Intersection
• Intersedwn Project
Roadway Project
Sdewak Project
ITS Traffic Project
II
Park 8 Ride
Land Use Master Plan Study Area
TOD Locauon
1/
rRoute 9 Service Increase to
15 -Minute Frequency with
All Day Service
State Street Transit and Traffic Operational Plan
7
Future Downtown Boise
Multimodal Center
30th Street Extenslon•-
Transit
• Expand transit service (Route 9) to downtown Eagle
• Add north/south routes that connect to State Street
Roadway
• Widen State Street to include curbside HOV lanes,
pedestrian facilities, and bike lanes between 23rd Street
and Glenwood Street
• Widen State Highway 44 to include four travel lanes with
bike and pedestrian facilities between State Highway 16
and Ballantyne Lane
Land Use
• Plan and develop initial stages of TOD sites
• Expand and add Park & Rides
State Street Transit and Traffic Operational Plan
Proposed Medium -Term 1
New Park & Ride,
Two New Routes
ISH 44 Widened to Four Lanes with Median
LEGEND
Transit Improvements Q
• New Bus Stop
0 Bus Bays
ElQueue Jumps
* Downtown Boise Multimodal Center
ITS Transit Proloct
— (Transit Signal Priority at Intersections)
Transit Route9
•-- Route 9 (15 -minute Frequency -All Day)
— Route 44 (30 -minute Frequency - Peak)
New Routes (15 -minute Frequency - Peak,
30 -minute Frequency - Off -Peak)
t)
rContinued TOD Sitel
_DevelopmentJ
tNew Park & Ride'
Expansion of
' I Park & Ride
'.H'.'0'. .�
TOD Plan and Initial Stages
Implementation of Queue Jumps of Site Development
Roadway Improvements Land Use Activates
9t New Signalized Intersection
It Intersection Protect
Roadway Project
- Sidewalk Project
- - ITS Traffic Profecl
Park a Rode
TOD Location
Note. Gray lines and symbols indicate improvements that were made in previous phase.
State Street Transit and Traffic Operational Plan
'Extension o1 Route 9 Service',
10 Downtown Eagle 1
State Street Widened to Seven Lanes with Curbside NOV Lanes
4r�
Bus Bays on Widened Section
and Consolidation of Bus Stops
a
O
•
• I : r r
TOD Plan and Initial Stages
of Site Development
Accommodation of Park 8 Ride
at Multimodal Center
Proposed Long -Term Improveme
Transit
• Expand transit service (Route 9) from downtown Eagle
to State Highway 16
• Imolement Sus Raoic Transit service between Downtown
3oise Multimodal Center and Eagle Road
Roadway
• Widen State Highway 44 to include curbside HOV lanes,
bike lanes and pedestrian facilities oetween Glenwood
Street and Eagle Road
Land Use
refe,1::
• Increase TOD on the corridor
State Street Transit and Traffic Operational Plan
Proposed Long -Term Improve
(New Route
i
(Extension of Route 9 Service to SH 161
LEGEND
Transit Improvements U
• New Bus Slop
• BRT Simon
O Bus Bays
O Oueue Jumps
Downtown Base Ltumnrodal Center
— ITS Transt Project
4—. BRT Implementation
Transit Routes
Route 9 (15•mmule Frequency -All Day)
— Route 44 130•nonute Frequency • Peak)
- New Routes
(15 -minute Frequency - Peak,
30 -monde Frequency - O^ -Peak)
Roadway Improvements .Ly
I F Signalized Intersection
• Intersection Project
O Roadway Project
- - - Sidewalk Project
• - ITS Traffic Protect
Land Use Activities y
Pnlk B Ride
TOD Location
(Implementation of Queue Jumps'
OOOOO
State Street Widened to Seven Lanes with Curbside HOV Lanes
irat
2
[Implementation of BRT between Eagle Roadl
and Downtown Boise Multimodal Canter
Or, `app a Continued TOD Site Development
OR h . ' - (All Gray Circles)
Note: Gray lines and symbols indicate improvements that were made In previous phases.
TOD Plan and Initial Stages of Site Development
(All Purple Circles)
[BRT Station
State Street Transit and Traffic Operational Plan
I•
1 •
Ano s.,.e..
. tr. bon.. a.•e.
hm 6b>C.u4.r
e.tanu. re, Area l.anVwna'nn aulwn.
Some of the proposed improvements are currently funded. However, the majority of the
proposed improvements are unfunded but could be funded through the following sources:
[wl
Transit is currently funded through fare box collection, local contributions,
and federal funds. Some potential future funding sources include:
• Local option sales tax
• New Starts Program (federal)
• Federal grants and/or earmarks
Roadway is currently funded through a variety of sources, which include:
• Local/State Funding: gas tax, property tax, vehicle registration, impact fees
• Federal: Highway Trust Fund (gas tax), grants, earmarks
Land Use is typically funded through private -sector investment and
development. For specific development types to occur, such as transit -
oriented development, the following mechanisms are possible:
• Zoning Incentives: density, setbacks, building height
• Public/Private Partnerships: joint ventures, leasing/ownership
• Financing Incentives: tax credits or financing assistance
State Street Transit and Traffic Operational Plan