20070917Rhead Supplemental.pdf

McDevitt & Miller LLP
Lawyers
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[phone]
[phone] (Fax)
420 W. Bannock Street
O. Box 2564-83701
Boise, Idaho 83702
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September 17, 2007
Via Hand Delivery
Ms. Jean Jewell, Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83720
Re: UWI~ W ~07 ~
Dear Ms. Jewell:
Enclosed for filing, please find nine (9) copies of the Supplemental Testimony and
exhibits of Scott Rhead, with a copy of each designated as "Reporter s Copy . A
computer disc containing the testimony and is also enclosed.
An additional copy of the documents and this letter is included for return to me with
your file stamp thereon.
Very truly yours
McDEVITT &: MILLER LLP
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Enclosures
Dean J. Miller
Dean J. Miller (ISB No. 1968)
McDEVITT & MILLER LLP
420 West Bannock Street
O. BOX 2564-83701
Boise, Idaho 83702
Tel: [phone]
Fax: [phone]
ioe(Q),mcdevitt- miller .com
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF UNITED WATER IDAHO INC., TO
AMEND AND REVISE CERTIFICATE OF
CONVENIENCE AND NECESSITY NO 143
CASE NO. UWI-07-
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
SUPPLEMENTAL TESTIMONY OF SCOTT RHEAD
September 17, 2007
ORIGINAL
Please state your name.
Scott Rhead.
Are you the same Scott Rhead who previously filed Direct and Rebuttal
Testimony in this proceeding?
Yes I am.
What is the purpose of your Supplemental Testimony?
I will provide an update on the status of the City of Eagle s Application for
Permits Nos. 63-32089 and 63-32090 pending at the Idaho Department of Water
Resources ("IDWR"
, "
Department"
In your capacity as Director of Engineering for United Water, have you
previously participated in water right application proceedings at the Department
and are you familiar with procedures used by the Department to process water
right applications?
Yes, I have participated in numerous water right application proceedings and I am
familiar with the Department's procedures.
As of the date of the filing of your Supplemental Testimony, has IDWR issued a
final, non-appealable order granting the City s Application?
No it has not.
Please describe activity that has occurred at the Department since May 24, 2007
with respect to the City s Application.
On July 18, 2007, the assigned Hearing Officer issued a Preliminary Order
approving in part the permits subject to various conditions. The Preliminary
Order is attached as Exhibit 105, pgs. 1-25. Under Department procedures
Rhead, Stipp
United WaterIdaho Inc.
parties may then petition for reconsideration. Several parties, either through
counselor on their own behalf, filed Petitions for Reconsideration. The City also
filed a Petition for Reconsideration, objecting to some of the conditions contained
in the Preliminary Order. Those Petitions are attached as Exhibit 105, pgs 26-51.
What occurred in response to the Petitions.
On August 21 , 2007, the Hearing Officer issued an Order granting
Reconsideration. That Order is attached as Exhibit 105, pgs 52-53. As
indicated in the Order, the Hearing Officer intends to reconsider the matter based
on the Petitions and then issue a revised Order.
As of the date of your Supplemental Testimony, has the Hearing Officer issued a
revised Order?
No he has not.
Is there any statutory or procedural deadline by which the Hearing Officer must
issue a Final Order?
As I understand it, there is not.
Please describe the procedures that will be in effect once the Hearing Officer does
issue a Final Order.
Once the Order is final, parties opposing it will have 14 days to appeal to the
Director of the Department for review of the Order. Other parties then have 14
days to respond. The Director then determines whether to grant review. Ifreview
is granted the Director sets a briefing schedule and may hear oral argument. At
the conclusion of briefing and argument the Director has 56 days to issue his Final
Order, which time period can be extended for good cause. The Director also may
Rhead, Stipp
United Water Idaho Inc.
review the Hearing Officer s Order on his own motion even ifno parties to the
case appeal.
When the Director issues a Final Order is the matter at an end?
Not necessarily. Within 28 days, parties may file a Petition for Judicial Review in
State District Court.
When the District Court rules on the Petition for Judicial Review is the matter
then at an end?
Not necessarily. The judgment of the District Court is appealable to the Idaho
State Supreme Court.
Does that conclude your testimony?
Yes it does.
When the Idaho State Supreme Court rules, is the matter then at an end?
Not necessarily. The Supreme Court may refer the matter back for further
proceedings.
Rhead, Stipp
United Water Idaho Inc.
CERTIFICATE OF SERVICE
I hereby certify that on the ~ay of September, 2007, I caused to be served, via the
methodes) indicated below, true and correct copies of the foregoing document, upon:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83720-0074
i i ewell~puc.state.id. us
Bruce Smith
MOORE, SMITH, BUXTON & TURCKE
950 W. Bannock, Suite 520
Boise, ID 83702-5716
Robert B. Bums
MOFFA IT THOMAS
101 S. Capital Blvd. 10th Floor
O. Box 829
Boise, ID 83701-0829
REPLY COMMENTS- 1
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BY:
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BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
IN THE MATTER OF APPLICATIONS TO
APPROPRIATE WATER NOS. 63-32089 AND
63-32090 IN THE NAME OF THE CITY
OF EAGLE
PRELIMINARY ORDER
On January 19 2005 , the City of Eagle ("Eagle ) filed two applications for permit to
appropriate water, numbered in the files of the Idaho Department of Water Resources ("IDWR" or
Department") as 63-32089 and 63-32090. IDWR published notice of the applications in the
Idaho Statesman on April 21 and 28 2005. The applications were protested by the following
individuals: Roy Barnett, Tim Cheney, City of Star, Dean and Jan Combe, Michael Dixon/Hoot
Nanney Farms, Bill Flack, Bob and Elsie Hanson, Michael Heath, Charles Howarth, Corrin
Hutton, Norma Mares, Michael McCollum, Charles Meissner, Jr., LeRoy and Billie Mellies
Robyn and Del Morton, Frank and Elaine Mosman, Joseph, Lynn, and Mike Moyle, Eugene
Muller, Tony and Brenda O'Neil, Bryan and Marie Pecht, Dana and Viki Purdy, Sam and Kari
Rosti, Ronald Schreiner, Star Sewer and Water District, Jerry and Mary Taylor, United Water
Idaho, and Ralph and Barbara Wilder.
IDWR conducted a prehearing conference on July 28 2005. At the prehearing conference
Scott Reeser hand-delivered a letter to IDWR. In the letter, Scott Reeser asked to intervene in the
contested case.
On September 13 2005, IDWR issued an order granting Scott Reeser s petition to
intervene.
Several protestants failed to appear at the prehearing conference. IDWR mailed a notice of
default to the non-appearing protestants. The following non-appearing protestants who failed to
show good cause for non-appearance were dismissed as parties: Roy Barnett, Bryan and Marie
Pecht, Del and Robin Morton, Tony and Brenda O'Neil, and Frank and Elaine Mosman.
The hearing officer conducted a second prehearing conference on October 18 2005. At the
prehearing conference, Eagle proposed to drill two wells for conducting a pump test. Eagle
proposed to pump water from one of the wells and measure water levels in other wells in the
vicinity of the pumped well to detennine the impacts of pumping.
On December 22 2005, IDWR approved two drilling pennits to construct wells for the
pump test.
PRELIMINARY ORDER - Page 1
EXHIBIT 105
PAGE 1 OF 53
On January 17,2006, IDWR received a "notice of protest" from Bud R. Roundtree. IDWR
interpreted the document as a petition to intervene.
On January 19 2006, the hearing officer issued a Notice of Hearing, Order Authorizing
Discovery, and Prehearing Order. The hearing officer scheduled the hearing for April 10 through
April 14, 2006. On February 28, 2006, Eagle notified the hearing officer that the two test wells
had not been constructed. The letter stated "the City of Eagle will not be able to get the pump test
completed pursuant to the existing schedule." As a result of the notice, the hearing officer
canceled and continued the hearing. In the Order Continuing Hearing and Canceling Prehearing
Deadlines the hearing officer ordered the following:
...
(U)pon completion of construction of the test wells, the City of Eagle shall
arrange a time for the anticipated pump tests with the other parties. When the
date(s) for the pump tests have been arranged, the City of Eagle shall notify the
Department of the test date(s). After receiving notice of the test date(s), the
Department will inquire about available dates for a hearing. The hearing will be
scheduled no earlier than ninety days following the date of the test to allow the
exchange of information and discovery previously authorized.
On July 11 2006, the City of Eagle notified the hearing officer that "the pump test
conducted by the City of Eagle has been completed.
Sometime during late summer 01' the fall of 2006, Eagle submitted a report titled City of
Eagle - 7 Day Aquifer Test to IDWR staff for review. The document is dated "June 2006 " but the
test was not completed until June 19,2006.
On September 6, 2006, the hearing officer issued a second Notice of Hearing, Order
Authorizing Discovery, and Prehearing Order. The Notice of Hearing scheduled the hearing for
December 6 through 8, 2006 and December 11 and 12 2006. At the time of service of the notice
of hearing, IDWR had not acted on the petition to intervene filed by Bud Roundtree. The record
does not show that IDWR ever determined whether Roundtree should be allowed to intervene.
Roundtree received notice of all the proceedings, however, and IDWR treated Roundtree as a full
party to the contested case.
On November 7, 2006, Star Sewer & Water District withdrew its protest.
On November 13, 2006, protestants Joseph, Lynn and Mike Moyle, Eugene Muller, Dana
and Viki Purdy, Charles Meissner, Jr., and Charles Howarth filed a Motion to Continue the
Hearing. On November 15 2006, the above protestants filed an Amended Motion to Continue
Hearing. The protestants filing the motion for continuance asserted: (1) various scheduling
conflicts of the protestants; and (2) Eagle failed to "arrange a time for the anticipated pump test
with the other parties" as required by the hearing officer s March 10, 2006 Order Continuing
Hearing and Canceling Prehearing Deadlines.
On November 20 2006, the hearing officer denied the Amended Motion for Continuance.
This order will not discuss the grounds for refusing the continuance based on scheduling conflicts.
A discussion of the prearrangement of the plUllp test is gelmane, however.
PRELIMINARY ORDER - Page 2
EXHIBIT 105
PAGE 2 OF 53
In denying the request for a continuance on the grounds of failure to jointly conduct a
pump test, the hearing officer wrote:
...
The hearing officer intended that all the parties interested in the pump test have an
oPPOltunity to participate in the test. If Eagle failed to arrange the timing of the test
with the parties, the hearing officer is dismayed that Eagle did not follow the
dictates of the order.
Nonetheless, even assuming Eagle did not arrange a time for the pump test with the
protestants as required by the hearing officer s March 10, 2006 order, the
protestants have known that the City of Eagle completed its pump test since
receiving the July 11 2006 letter. The hearing officer also notified the protestants
of the completion of the pump test in his August 16, 2006 letter and alluded to the
completion of the test in his September 6, 2006 order. Failure of the city to fully
coordinate the pump test with the protestants should have been raised as an issue at
the time the protestants were notified that the pump test had been completed.
Instead, the protestants waited until less than a month before the scheduled hearing
to complain. Despite Eagle s failure, the protestants' inaction after learning of the
completion of the pump test for approximately four months leads the hearing
officer to surmise that the protestants were disinterested in participating actively in
the pump test. Consequently, failure to coordinate the pump test is not grounds for
postponing the hearing at this late date.
On November 22, 2006, protestants Joseph, Lynn and Michael Moyle, Eugene Muller
Dana and Viki Purdy, Charles Meissner, Jr., and Charles Howarth filed a Motion in Limine. The
protestants participating in the Motion in Limine argued that the "
...
data and results collected from
the seven-day pump test conducted by the City of Eagle in May and June, 2006" should be
excluded from the evidence "
...
because the Protestants were not provided an opportunity to collect
data from their wells while the pump test was conducted.
On November 30, 2006, the hearing officer issued an Order Denying Motion in Limine
Notice of Staff Memorandum, and Amended Notice of Hearing. In the order, the hearing officer
stated:
...
The protestants had an opportunity to complain about their inability to participate
in the test long in advance of the hearing. The protestants did not avail themselves
of the opportunity and should not be allowed to raise the issue just prior to the
hearing as a means of preventing consideration of technical information.
The Motion in Limine should be denied.
On November 29, 2006, Sean Vincent and Shane Bendixsen submitted a
Department staff memorandum to the hearing officer that evaluated the pump test
conducted for the City of Eagle test wells. A copy of the staff memorand1.UIl is
enclosed with this document. The staff memorandum raises several issues about
the procedures of the pump test and the analysis of the pump test data. The
PRELIMINARY ORDER - Page 3
EXHIBIT 105
PAGE 3 OF 53
questions raised by Department staff could seriously affect the credibility of the
pump test evidence presented at the hearing.
The hearing officer will consider the Department staff memorandum as part of the
evidence in this contested case. Because the analysis of the pump test submitted to
Department staff was incomplete, the hearing officer will forward any additional
evidence about the pump test received into evidence at the hearing to Department
staff for further review to determine possible deficiencies. After the staff review
the hearing officer will distribute the results of the Department's post hearing
review to the parties who will have an opportunity to submit additional comments
and possibly to request supplemental hearings about the document. This process
will delay the ultimate consideration of the applications.
The November 30 2006 order also delayed commencement of the hearing by one day.
A hearing for the contested case was conducted on December 7 and 8, 2006, and resumed
on December 11 and 12 2006. At the end of the day on December 12 2006, the presentation of
evidence was not complete. As a result, additional evidence was presented the morning of
December 18 2006.
Bruce Smith and Tammy Zokan, attorneys at law, appeared on behalf of Eagle. Charles
Honsinger and Jon Gould, attorneys at law, appeared on behalf of Joseph, Lynn and Mike Moyle
Eugene Muller, Dana and Viki Purdy, Charles Meissner, Jr., Charles Howarth, and Mike
Dixon/Hoot Nanney Farms. Sam Rosti, Corrin & Terry Hutton, Mary Taylor, and Jan Combe
appeared individually representing themselves.
On December 20, 2006, the hearing officer issued a request for staff memorandum to Hal
Anderson, Rick Raymondi, Sean Vincent, and Shane Bendixsen. The request for staff
memorandum stated the following:
Sean Vincent (Vincent) and Shane Bendixsen (Bendixsen) reviewed a technical
document titled City of Eagle, Idaho 7-Day Aquifer Test prepared by Chris H.
Duncan of Holladay Engineering Company. After the review, Vincent and
Bendixsen issued a staff memorandum dated November 29, 2006. In the
memorandum Vincent and Bendixsen stated that "the scope of the data collection
was adequate, but the aquifer test analysis is incomplete.
The request for staff memorandum recited some of the procedural background, and fuliher
stated:
At a hearing conducted on December 7-, 11-, and 18,2006, the City of Eagle
presented additional analysis of the aquifer test data. In addition, the City of Eagle
called Vincent to testify regarding the November 29 2006 staff memorandum.
THEREFORE, the hearing officer invites department staff to augment the
November 29, 2006 staff memorandum regarding the above captioned matter
which could include, without limitation:
PRELIMINARY ORDER - Page 4
EXHIBIT 105
PAGE 4 OF 53
A full scrutiny of the methods of gathering data, the data presented, and
results of the aquifer test contained in the City of Eagle, Idaho 7-Day
Aquifer Test report dated June 2006.
Presentation and analysis of additional data available to department staff to
enhance the hearing officer s understanding of the hydrogeology and
aquifers in the vicinity of the proposed appropriations of water, including,
but not limited to data related to aquifer tests performed for the Lexington
Hills well and the Floating Feather well.
An independent analysis of Eagle s 7-Day Aquifer Test data using
commonly accepted scientific methods in the field of geology,
hydrogeology, and engineering.
A technical review and critic (sic) of any infonnation and analysis of data
presented as evidence dming the contested case hearing conducted on
December 7-, 11-, and 18 2006.
On February 27 2007 (date on the document was February 27, 2006), Sean Vincent of
IDWR submitted to the hearing officer a staff memorandum titled Review of Addendum to City of
Eagle, Idaho 7-Day Aquifer Test Report. Attached to the staff memorandum was a document titled
Addendum to City of Eagle 7-day Aquifer Test Report.
In the staff memorandum, Vincent states that "the Addendum adequately addresses
comments made in a previous memo to you dated November 29,2006.
On March 13, 2007, Eagle mailed copies of the wlitten addendum reviewed by IDWR staff
to the parties who attended the December hearing.
On March 27 2007, the hearing officer mailed a copy of the staff memorandum written by
Vincent to the parties who attended the December hearing. The hearing officer also served a
Notice of Consideration of Additional Evidence and Post Hearing Order on the parties. The
document infOlmed the parties that the hearing officer would consider the infonnation in the
addendum and the staff memorandum, and granted the parties until April 25, 2007 to review
documents and to submit technical comments about the addendum to the hearing officer and/or
request a supplemental hearing.
On March 27, 2007, the hearing officer issued an order dismissing the following parties
from the contested case: Michael McCollum, Michael and Nancy Heath, Tim Cheney, Bob &
Elsie Hanson, Bill Flack, Ronald Schreiner, City of Star, Scott and Nancy Reeser, Bud Roundtree
Ralph and Barbara Wilder, and Nanna Mares.
On April 24, 2007, Mary Taylor submitted written comments to Eagle s addendum.
PRELIMINARY ORDER - Page 5
EXHIBIT 105
PAGE 5 OF 53
On April 25, 2007, protestants Joseph, Lynn and Mike Moyle, Eugene Muller, Dana and
Viki Purdy, Charles Meissner, Jr., Charles Howarth, and Mike Dixon/Hoot Nanny Farms, Inc.
submitted comments to Eagle s addendum and the IDWR staff memorandum.
Having considered the evidence presented at the hearing, and the information subsequently
submitted to the hearing officer, the hearing officer finds, concludes, and orders as follows:
FINDINGS OF FACT
1. On January 19,2005 , the City of Eagle submitted two applications to appropriate
water to IDWR. IDWR assigned application numbers 63-32089 and 63-32090 to the applications.
Application to appropriate water no. 63-32089 seeks the following:
Source:Groundwater
Flow Rate:0 cfs
Purpose of Use:Municipal
Proposed Priority:January 19,2005
Period of Use: Jan. 1 through Dec. 31
Points of Diversion:
Township 04 North Section 10 NWNE1
Range 01 West
Section 11 SENW
Section 10 NWNW
Section 11 NWSE (two wells)
Place of Use: The municipal service area for the City of
Eagle.
Application no. 63-32090 proposes the following:
Source:Groundwater
Flow Rate:9 cfs
Purpose of Use: Municipal
Proposed Priority:January 19 2005
Season of Use: Jan. 1 through Dec. 31
Points of Diversion:
Township 04 North Section 10 NWNE
Range 01 West
Section 11 SENW
Section 10 NWNW
Place of Use: The municipal service area for the City of
Eagle.
1 Public land survey descriptions in this decision without a fraction following a two alpha character descriptor are
presumed to be followed by the fraction "1/4." In addition, all public land survey descriptions are presumed to be
based on the Boise Meridian. All locations are in Ada County.
PRELIMINARY ORDER - Page 6
EXHIBIT 105
PAGE 6 OF 53
4. The two applications identify eight possible separate well locations. The three
points of diversion listed in application no. 63-32090 duplicate locations described in application
no. 63-32089. Eagle only intends to construct a maximum offive wells.
5. Eagle owns and operates a municipal water system that serves a geographical area
within the municipal boundaries of the City of Eagle. The certificated area of service for the Eagle
municipal water system also includes lands outside of the city boundaries. The certificated area for
service by the Eagle municipal water system is depicted in Eagle Exhibit 6 and is color-coded in
pink. Eagle Exhibit 6 also shows locations of the five wells proposed by the applications.
6. A portion of Eagle s service area is located west of Linder Road, east of Highway
, and north of Highway 44 to the edge of the foothills bounded on the north by Homer Road.
This area will be refelTed to in this decision hereinafter as the "western expansion area.
7. Two housing developments named Eaglefield and Legacy are currently proposed
for construction in the western expansion area. The combined number ofhornes proposed for the
development is approximately 2 000 homes. The homes will be constructed on approximately 800
to 900 acres in Sections 2, 3, 9, 10) and 11 , T4N, RIW.
8. Eagle anticipates that the development for the 2 000 homes will be complete within
five-years, although all of the homes may not be built by that time.
9. Developers proposing construction of resident~al housing within Eagle are required
to dedicate sufficient ground water or surface water rights to the proposed developed lands to
accommodate irrigation demands within the subdivision. When surface water is the traditional
method of irrigating the lands prior to development, the developer is required to install a separate
system from Eagle s municipal water system for delivery of surface water for irrigation.
10. The applications propose delivery of water primarily for in-house use in the 2 000
homes projected for construction. The peak one-hour demand for in-house use in 2 000 residential
units is 2.23 cis. In addition, Eagle is required to supply the development with 6.68 cfs for fire
protection. The total projected instantaneous demand is 8.9 cfs, the' combined flow rate sought by
the two applications.
11. The developers of the proposed subdivisions must pay for the five proposed wells
and internal delivery system within the development. In addition, Eagle has set aside monies in its
budget for construction of main lines and trunk lines to connect with the existing Eagle municipal
water system. Eagle also has the power to levy assessments against its water users for payment of
additional improvements. Finally) Eagle has the authority to form a Local Improvement District
(LID) and issue bonds to be repaid by future assessments.
12. Eagle does not presently intend to employ any water storage to meet peak demands.
Storage to supply short-term peak demands and fire flow demands could be a component of future
use, however. Eagle Exhibit 6 identifies the location of a future storage tank at the northern
boundary of the western expansion area.
PRELIMINARY ORDER - Page 7
EXHIBIT 105
PAGE 7 OF 53
13. In May 2006, Eagle constructed two wells within the proposed development
property. Both of the wells were constructed according to the Department of Environmental
Quality standards.
14. The first well was constructed in the SENW, Section 11 , Township 04 N0l1h
Range 01 West. This well will be referred to hereafter as Well no. 1 or the "Legacy Well." The
second well was constructed in the NWSE, Section 11 , Township 04 North, Range 01 West. This
well will be referred to hereafter as Well no. 2, or the "Eaglefield Well.
15. An aquifer pump test was conducted from approximately May 25 through June 19
2006, by pumping the Eaglefield Well and monitoring water levels in other wells. The test was
conducted in three separate phases. Background testing was conducted for seven days prior to the
pump test. A seven-day constant rate pump test commenced on June 2 and ended on June 9 at a
pumping rate of 1 580 gallons per minute ("gpm ). Following pumping, water levels were
measured for seven days following the end of the pumping period to determine recoveries of
ground water levels without pumping.
16. Eagle monitored the water levels in eight wells. One of the monitoring wells was
the pumping well (Eaglefield Well). Water levels in the Legacy Well were monitored. Water
levels in six other privately owned wells were also monitored. Other parties to this contested case
were not given an opportunity to participate in the test and monitor their own wells during the test.
17. Eagle submitted to IDWR a report titled City of Eagle, Idaho 7-Day Aquifer Test.
The report was received into evidence as Eagle Exhibit 14. Copies of the aquifer test were made
available to the pa11ies.
18. IDWR staff reviewed the report. In a staff memorandum dated November 29
2006, staff found several deficiencies in the report. The staff memorandum stated, among other
things, the following:
a. A higher pumping rate than was originally proposed for the lower yielding
Monitoring Well # 1 (Legacy Well) could and should have been used to stress the system.
If Eagle had done so, the effect on other nearby wells and possible boundary conditions
would have been more clearly identified.
b. Site hydrogeology should have been consulted to determine whether the test
data and conceptual models were reasonable.
c. Other factors such as water level trends, barometric pressure fluctuations
and fluctuations caused by nearby pumping wells should have been examined and used to
correct andlor interpret the test data.
d. Tables should have been prepared to identify the various wells and their
construction characteristics. Methods of analysis other than the Theis Equation should
have been employed. This would have verified the results of the Theis estimates. Use of
other methods would have better analyzed the water level recovery data.
PRELIMINARY ORDER - Page 8
EXHIBIT 105
PAGE 8 OF 53
explained.
Significant differences in the values estimated for storativity were not well
water level.
Some water levels recovered to an elevation higher than the initial static
19. The above deficiencies were discussed at the hearing. As a result of these concerns
the hearing officer allowed additional analysis of data and information following the conclusion of
the presentation of evidence.
20. Ground water levels measured in a well owned by Ricks (Monitoring Well no. 6)
showed some signs of a boundary condition. The Ricks well began a steeper decline in water
levels approximately four to five days into the pump test. Because the rate of pumping of the
Eaglefield Well was not as high as it could have been, and because the pumping test was of
somewhat short duration, this possibility of boundary conditions was never explored.
21. In an addendum to its original report submitted to the hearing officer after the
hearing, Eagle addressed some of the concerns raised by IDWR staff. As a result, IDWR staff
issued a supplemental staff memorandum dated February 27, 2007. The author of the
supplemental memorandum, Sean Vincent, wrote the following:
The water level and aquifer test data presented in the Addendum generally
support the authors' primary conclusion (i., the deep sand layers that are
targeted for production have sufficient capacity for additional withdrawals).
The fact that static water levels in the deep system near the area of proposed
development are above land surface and appear to be relatively stable
suggest that the deep aquifer system is not cUlTently in a state of overdraft.
An exception to the relatively stable water level trend described above is the
hydro graph for Well 04NOI W-31AAA1 , which is located approximately 5
miles southwest ofthe area of proposed development. The water level in
this well has declined by approximately 10 to 15 feet since 1970. Because
the aquifer strata are dipping, however, this 462-foot deep well may not be
producing from the same aquifer system that is targeted for the development
by the City of Eagle.
The inclusion of a conceptual hydrogeologic model, hydrographs for area
wells, and additional analyses using the Cooper-Jacob (1946) and Theis
(1935) residual drawdown methods, significantly improves the value of the
aquifer test as a basis for evaluating the water supply.
As discussed in the Addendum, semilogarithmic plots of drawdown and
residual drawdown suggest that both positive (recharge) and negative (finite
aquifer) boundaries affected the test data. The observed behaviors are
consistent with the conceptual model of a fmite, confined aquifer that
receives recharge from the surrounding uplands. Given the available data
PRELIMINARY ORDER - Page 9
EXHIBIT 105
PAGE 9 OF 53
fact.
application of the Theis (1935) solution to estimate the aquifer properties is
appropriate for this hydrologic setting.
The Addendum also includes calculations for estimating potential impacts
to existing wells. The calculations, which also are based on the Theis
(1935) solution, are conservative in that they neglect to account for aquifer
recharge but non-conservative in that they are premised on the assumption
of an infinite aquifer.
The I-year time frame for evaluating impacts to existing wells is
appropriate, in my opinion, and is consistent with guidance for determining
yield for public drinking water supply wells (IDEQ, 2007). The ranges
transmissivity and storativity values used to estimate drawdown also are
appropriate based on available information.
I verified that the drawdown estimates presented in Table 4 of the
Addendum were calculated correctly using the series approximation of the
Theis (1935) solution and the assumed input values.
Although the data analysis provides the basis for estimating hydraulic
properties for the target aquifer system, the aquifer test was not of sufficient
duration to definitively evaluate aquifer boundary conditions and long-term
impacts associated with pumping. As recommended in the Addendum
(Recommendations 15 and 16), a long-term water level and discharge rate
monitoring program should be implemented if the water right applications
are approved in order to evaluate water level trends as affected by pumping.
Dedicated up gradient and downgradient monitoring wells that are
completed in the deep aquifer system within the zone of influence of the
aquifer test are recommended.
22.The hearing officer adopts the Vincent analysis text quoted above as findings of
23. Ground water underlying the location of the proposed wells resides in three aquifers
separated by discontinuous clay aquatards. The discontinuity of the impervious clay strata allows
some communication between the aquifers. This communicative relationship between the aquifers
will be discussed in subsequent findings.
24. The shallow aquifer is a water table aquifer extending from land surface to
approximately 100 feet below land surface. The intermediate aquifer is generally found from 100-
200 feet below ground surface and is at least semi-confined. The deep aquifer is located at depths
below approximately 200 feet and is under artesian pressure. There may also be deeper aquifers
including geothermal aquifers.
25. The production zones for two of the test wells are completed in the shallow aquifer.
The production zones for three of the test wells are completed in the intermediate aquifer. The
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EXHIBIT 105
PAGE 10 OF 53
Eaglefield Well, the Legacy Well, and one of the United Water wells are completed in the deep
aquifer. Evidence at the hearing established that a United Water intennediate aquifer well
and a United Water deep aquifer well were completed within the same borehole. Upon
construction, United Water nested strings of casing inside a single well. The casing for the
monitoring well identified as having been constructed into the deep aquifer monitoring well
commingled the intermediate and deep aquifers together, resulting in a mixing of water from the
intennediate and deep aquifers, and also mixing the pressures of the two zones. This commingling
probably skewed the data gathered from the United Water deep aquifer well. As a result, the only
direct measurements of drawdowns in the deep aquifer caused by pumping are the measurements
of drawdowns for the Legacy well.
26. Eagle Exhibit 8 is a summary of the potential effects on the protestants' wells of
pumping the proposed Eagle Wells at various flow rates.
27. Eagle Exhibit 24 contains information about the protestants' well and tables
estimating drawdowns using the Theis equation at various radial distances from a producing well
in the three different aquifers, the shallow aquifer, the intermediate aquifer, and the deep aquifer.
28. Table 1 of Eagle Exhibit 24 is an estimate of potential drawdown in the shallow
aquifer based on various pumping rates and distance from the pumping well. The estimates were
calculated by multiplying Theis equation drawdowns by a multiplier of 0.116. The 0.116
multiplier is an arbitrary number that has no basis in scientific or technical literature nor is it
derived from actual data. Nonetheless, there is limited communication between the shallow
intennediate, and deep aquifers, and the separation between the shallow aquifer and the deep
aquifer production zone significantly reduces the communication. The hearing officer determines
there is little effect on the shallow aquifer by pumping from the deep aquifer.
29. Table 2 of Eagle Exhibit 24 is an estimate of potential drawdowns in the
intermediate aquifer resulting from continuous pumping at various flow rates from the deep
aquifer. The drawdowns were calculated by multiplying the Theis equation drawdown values by
5. The 0.5 multiplier has no basis in teclmicalliterature or data analysis. The hearing officer
determines there is a direct hydraulic relationship between the intennediate aquifer and the deep
aquifer from which Eagle proposes to produce water. Although the direct relationship may be
limited by the separation from the deep aquifer, the degree of the limitation was not established.
As a result, the hearing officer assumes the full Theis equation drawdowns will occur in the
intermediate aquifer without applying a fractional multiplier, and will use Table 3 of Eagle Exhibit
24 to detelmine the impacts of pumping the proposed wells on wells constructed in the
intermediate aquifer.
30. Table 3 of Eagle Exhibit 24 contains results of a direct Theis equation calculation of
drawdowns at various flow rates and distances from the pumping well for continuous pumping
over a period of 365 days. Pumping from the deep aquifer will directly and adversely affect other
nearby water users diverting from the deep aquifer.
31. Water residing in the intelmediate and deep aquifers in the area of proposed well
construction is under artesian pressure. Artesian pressure in the deep aquifer causes water to rise
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EXHIBIT 105
PAGE 11 OF 53
above land surface in wells constructed with a production zone in the deep aquifer. These artesian
pressures have been used by some ofthe protestants to supply water to their beneficial uses.
32. The following is a table of the active protestants' names, water right priorities/date
of construction) and the depth of their wells. Some of this information is taken from Eagle Exhibit
24.
Protestant Water Right Priority -Distance from Comments
Construction Nearest
Proposed
Ea!!le Well
Dean & Jan 63-2858A 8/5/1956 900 ft Well is 65 feet deep
Combe
Mike Dixon 63-2957 8/28/1953 No information about the
63-2958 8/28/1953 depth or number of wells
63-31988 3/1/1976 was presented at the hearing
Charles Howarth Domestic 2002 1 )399 ft Well is 333 feet deep
(not
recorded)
Corrin & Terry Domestic 992 ft Well is 115 feet deep
Hutton
Charles W.Three wells.July 1981 800 ft Well is 90 feet deep
Meissner W ell logs for July 1970 Well is 103 feet deep
two of the
wells. No
recorded
water rights.
Mike Moyle 63-2546 12/12/1959 643 ft to Six wells, all completed in
63-2609 2/15/1944 200 ft the deep aquifer
Eugene Muller 63-22650 7/25/1887 286 ft Well was initially completed
in the shallow aquifer. The
well was redrilled in 1979,
and now the production zone
is in the deep aquifer
Dana & Viki 63-2920 1/2/1953 390 ft Well is 90 feet deep
Purdy 63-15680 6/1/1900 700 ft Well is 250 feet deep
63-22652 6/1/1967 approx.640 ft Well is 120 feet deep
Sam & Kari Domestic 1980 444 ft Well is 255 feet deep
Rosti (not
recorded)1992 Well is 445 feet deep
63-11715
Jerry & Mary 63-5040 3/1/1941 997 ft.Wells completed in the
Taylor 63-2858B 6/1 0/1951 shallow aquifer
63-17523 6/1/1960
63-3296 6/5/1962
63-32189 3/31/1976
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EXHIBIT 105
PAGE 12 OF 53
33. Pumping at a continuous rate of 8.9 cis is not an unreasonable assumption about
future use of water by Eagle, given Eagle s projected growth and probable storage of municipal
water in the future.
34. Pumping of Eagle s proposed wells at a rate of8.9 cfs will cause significant
reduction in the artesian pressures of wells consl1ucted in the deep aquifer. Pumping will also
cause reductions in artesian pressures in the intelmediate zone.
Moyle
35. Joseph, Lynn, and Mike Moyle own six wells constructed in the deep aquifer that
flow under artesian pressure. Four of the wells are described as points of diversion by water rights
nos. 63-2546 and 63-2609, bearing priority dates of 1939 and 1943, respectively. A fifth well is
the point of diversion for an unrecorded domestic use for a home built by Joseph and Lynn Moyle
in approximately 1970. The sixth well was constructed in 1997 to supply water to Mike Moyle
home.
36. Moyles have measured the closed-in pressure in the wells at 10 pounds per square
inch ("psi"). Ten psi correlates to a water level head of approximately 21 feet. The flowing
artesian wells have supplied stock water for as many as 43 000 mink on the Moyle property. In
addition, the Moyle wells have provided irrigation water and water for commercial refrigeration
and cooling. Finally, the flowing artesian wells provide domestic water for several homes. In
some locations , small, relift pumps increase the pressure for commercial and domestic uses.
37. The four Moyle wells described by decreed or claimed water rights are remote from
an electrical supply. As a result, pumping the wells would be difficult if the artesian pressure is
lost.
38. As aI1esian pressure declines, the flow from the artesian wells will decrease.
During the end of June 2006 or the first of July 2006, the pressure dropped in some ofthe artesian
wells. Moyles discovered that artesian water was not flowing to the end of the water lines
providing drinking water for the mink. As a result, some of the mink died from lack of water.
39. If Moyle s nearest well is approximately 5 643 feet away from anew well pumping
continuously at a flow rate of 8.9 cfs, Table 3 of Eagle Exhibit no. 24 predicts a decline in artesian
pressure of approximately 15 feet. A reduction from an artesian pressure head of 21 feet down to
six feet would significantly reduce the flow needed to supply the domestic, commercial
stockwater, and irrigation needs for Moyles. Lesser reductions of artesian pressure will also
signiflcantly reduce the flow needed by Moyles to supply the beneficial uses.
Muller
40. Eugene Muller holds water right no. 63-22650. The original well was constructed
to a depth of70 feet, and the production zone was in the shallow aquifer. In 1979, the well could
no long provide water for Muller s beneficial use, and Muller dug a new well in the deep aquifer.
The new well is a flowing artesian well.
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EXHIBIT 105
PAGE 13 OF 53
41. Muller testified that water flowed nom the original well. His testimony is
inconsistent with the described characteristics of the shallow aquifer. Nonetheless, any loss of
pressure or water level in the original well occurred prior to 1979 when the original well failed
requiring construction of a new well in the deep aquifer.
Howarth
42. In approximately 2001 or 2002, Charles Howarth constructed a domestic well in the
deep aquifer. The domestic well is under artesian pressure, maintaining 3 to 7 psi of pressure.
Meissner
43. Charles Meissner, Jr. owns three wells. One of the wells is completed in the
shallow aquifer at a depth of90 feet.
44. A second well was constructed to a depth in excess of 103 feet (See Protestants
Exhibit 404, second page) in 1970, and is used for domestic and stockwater purposes. This well
will be referred to as the "Double R Cattle Well." The well casing is not pt:rforated, and the water
in the well is derived nom the bottom of the casing. The casing passes through a significant layer
of clay from 70 to 85 feet in depth that probably acts as an aquatard. The water underlying the
aquatard is under artesian pressure, but the water does not flow above land surface. The
production zone for the well is completed in the intermediate aquifer.
45. Table 3 of Eagle Exhibit 24 establishes that, at a distance of 4 800 feet from the
nearest proposed Eagle well and at a continuous pumping rate of8.9 cfs, water levels in the Double
R Cattle Well will decline approximately 15 feet.
46. The depth and other information about the third well was not presented, except
Meissner speculated that the well has collapsed.
Purdy
47. Dana and Viki Purdy hold water right no. 63-2920 authorizing irrigation from
ground water. The point of diversion is a well approximately 90 feet deep. Purdys pump
supplemental ground water for irrigation when surface water in not available for irrigation. The
water right for the irrigation well bears a priority date of 1953, but is constructed in the shallow
aquifer.
48. Water right no. 63-15680 authorizes use of water for domestic and stockwater
purposes and bears a priority date of June 1 , 1900. The well is constructed to a depth of250 feet.
Viki Purdy testified that the well has been in place during several decades she has lived on the
Purdy farm and that the well had not been worked on or replaced. Water in the well is under
artesian pressure but does not free flow. The production zone for this well is most likely
completed in the deep aquifer.
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EXHIBIT 105
PAGE 14 OF 53
49. Table 3 of Eagle Exhibit 24 establishes that, at a distance of2 700 feet nom the
nearest proposed Eagle well and at a continuous pumping rate of 8.9 cis, water levels in the well
for water right no. 63-15680 will decline approximately 19.5 feet.
50. Water right no. 63-22652 authorizes a stockwater use, and bears a priority date of
June 1 , 1967. The point of diversion for water right no. 63-22652 is a well drilled to a depth of 120
feet. The well is constructed in the intermediate aquifer. Water in the well is under artesian
pressure, but water does not tree flow at ground surface. The well was constructed in 1966.
51. Table 3 of Eagle Exhibit 24 establishes that, at an approximate distance of 2 640
feet from the nearest proposed Eagle well and at a continuous pumping rate of 8.9 cis, water levels
in the well for water right no. 63-22652 will decline approximately 19.0 feet.
52. A well log for another well associated with a home owned by Dana Purdy s mother
was received into the evidence. The well was drilled in 1991.
Taylor
53. Jerry and Mary Taylor own several water rights. Three of the water rights
authorizes a total irrigation of 17 to 18 acres. Another water right authorizes domestic use. Claim
no. 63-5040 is for a domestic/commercial use in the City of Star. The point of diversion is
sufficiently distant from the proposed wells that it would not be affected. The wells nearest to the
proposed points of diversion are completed in the shallow aquifer.
Combe
54. Dean and Jan Combe hold a water right for a domestic use from a well with a
priority date of August 5, 1956. The well is 65 feet deep, and is completed in the shallow aquifer.
Rosti
55. Sam and Kari Rosti own a domestic well drilled in 1980. In addition, they own a
445 foot deep irrigation well completed in the deep aquifer drilled in 1992.
56. Diversion of water from the deep aquifer would have little or no effect on the Boise
River in the reach from Lucky Peak to just below Star Bridge. The flows of the Boise River in this
zone are affected primarily by water residing in the shallow aquifer and are directly related to
surface water flows in the Boise River. Water in the deeper zones is separated by an aquatard or
several aquatards. Water in the deeper aquifer migrate westerly toward the Snake River.
CONCLUSIONS OF LAW
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
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EXHIBIT 105
PAGE 15 OF 53
be appropriated, or (c) where it appears to the satisfaction of the director that such
application is not made in good faith, is made for delay or speculative purposes,
or (d) that the applicant has not sufficient financial resources with which to
complete the work involved therein, or (e) that it will conflict with the local
public interest as defined in section 42-202B, Idaho Code, or (f) that it is contrary
to conservation of water resources within the state of Idaho, or (g) that it will
adversely affect the local economy of the watershed or local area within which the
source of water for the proposed use originates, in the case where the place of use
is outside of the watershed or local area where the source of water originates; the
director of the department of water resources may reject such application and
refuse issuance of a permit therefor, or may partially approve and grant a permit
for a smaller quantity of water than applied for, or may grant a permit upon
conditions.
2. The applicant bears the ultimate burden of proof regarding all the factors set forth
in Idaho Code 9 42-203A.
3. Idaho Code 9 42-111 defines the phrase "domestic purposes." Stockwater use of
up to 13 000 gallons a day is recognized as use of water for domestic purposes.
4. In 1951 , the Idaho Legislature enacted legislation known as the Ground Water Act.
In 1953 , the Idaho Legislature amended the Ground Water Act. The 1953 amendment recognized
that ground water rights would be administered according to the prior appropriation doctrine, but
that prior water rights should not prevent the full economic development of the ground water
resources of the State ofIdaho, and that ground water appropriators would be required to pump
from a "reasonable pumping level" established by the Department. In 1978, the Idaho Legislature
amended the Ground Water Act again. The 1978 amendment expressly stated that domestic water
rights are subject to the reasonable economic pumping level standard.
5. In Parker v. Wallentine 103 Idaho 506 650 P.2d 648 (1982), the Idaho Supreme
Court determined that a later in time appropriator should be enjoined from pumping ground water
for irrigation that almost immediately dried up a domestic well located nearby. The court held that
the water right for the domestic well was perfected prior to the ilTigation water right and before the
reasonable pumping level standard was applied to domestic beneficial uses, and that the domestic
water right holder was entitled to the protection of the ground water pumping level existing prior to
pumping by the junior appropriator. The court held that the injunction was not permanent, and
could be absolved upon fl.lll compensation by the junior appropriator for the cost of deepening the
senior appropriator s well and payment of the costs of additional equipment and energy.
The Idaho Supreme Court stated in Parker v. Wallentine:
Under the doctrine of prior appropriation, because Parker s domestic well was
drilled prior to Wallentine s irrigation well, Parker has a vested right to use the
water for his domestic well. That right includes the right to have the water
available at the historic pumping level or to be compensated for expenses inculTed
if a subsequent appropriator is allowed to lower the water table and Parker is
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EXHIBIT 105
PAGE 16 OF 53
required to change his method or means of diversion in order to maintain his right
to use the water.
103 Idaho 506, 512 (1982) (emphasis supplied). The Idaho Supreme Court went on to note that:
Parker will not be deprived of any right to his use if water can be obtained for
Parker by changing the method or means of diversion. The expense of changing
the method or means of diversion, however, must be paid by the subsequent
appropriator, Wallentine, so that Parker will not suffer any monetary loss. Thus
upon a proper showing by Wallentine that there is adequate water available for both
he and Parker, it is within the inherent equitable powers of the court upon a proper
showing and in accordance with the views herein expressed to enter a decree which
fully protects Parker and yet allows for the maximum development of the water
resources of the State.
103 Idaho at 514.
7. Under Parker if (1) pumping of ground water by junior ground water appropriators causes
declines in pumping water levels in wells of the senior water right holders because of local well
interference, and (2) the water rights held by the senior water right holders bear priority dates earlier than
1953 , or 1978 for domestic water rights, the holders of the senior water rights are, at a minimum, entitled
to compensation for the increased costs of diverting ground water caused by the declines in ground water
levels.
8. The extent to which Parker provides protection to the protestants' water rights depends on
proof of injury and factual similarities to the facts of the Parker case.
9. In Parker the owner of the domestic well was unable to divert water from the domestic
well within minutes of when the junior priority right holder began pumping ground water. The proof of
the lowered water table caused by pumping from the irrigation well that resulted in inability to pump water
from the domestic well was established through testimony about the effects of the initial pumping from the
Wallentine well and by a pump test conducted by the parties and the Department.
10. In an administrative hearing for an application to appropriate water, the applicant bears the
burden of proving that the proposed use of water will not injure other water rights. If a protestant seeks the
protection of Parker that would insulate the protestant from the reasonable pumping level standard of the
Ground Water Act, however, the protestant must come forward with evidence that: (1) the protestant is the
holder of a water right that is not subject to the reasonable pumping standard of the Ground Water Act, and
(2) the protestant's diversion equipment and facilities are capable of diverting the protestant's water right
at the ground water levels at or about the time the application is being considered. Once the protestant
comes forward with the information, the applicant ultimately bears the burden of proving that the proposed
use of water will not injure the protestant under the Parker standard.
11. Pumping of 8.9 cfs will not cause water level declines in area wells below a level
that is reasonable.
12.The following describes how Parker applies to each of the active protestants.
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EXHIBIT 105
PAGE 17 OF 53
Moyle
13. The priority dates of the water rights held by Moyle predate the 1953 amendment of
the Ground Water Act subjecting subsequent appropriations of water to the reasonable pumping
level standard. Moyles are entitled to protection of their historical water levels in the four wells
recorded by their water rights and in one other domestic well associated with a home owned by
Joseph and LY1ll1 Moyle. Evidence presented established that Moyles were receiving water under
artesian pressure at the time Eagle filed its applications and during the summer preceding the
hearing. Diversion from the proposed Eagle wells will injure Moyles' water rights.
14. Prior to diverting water from its existing or proposed wells, Eagle must (a) supply
water for uses of ground water ii-om the five Moyle wells entitled to Parker protection at no cost to
Moyles except the cost for incidental electricity that adds additional pressure to the water supply
for domestic and commercial uses, and be immediately ready and able to physically deliver the
water to Moyles; or (b) acquire the water rights from Moyles, possibly through condemnation. To
be immediately ready and able to physically deliver water to Moyles, Eagle must complete one of
the following prior to initiating pumping from and beneficial use of ground water under permits for
these applications: (a) physically connect Moyle s water delivery system to Eagle s municipal
water system; or (b) with Moyles' consent , place the necessary pumps in the Moyle wells, supply
the power for the pumps, construct or install any other physical features, including running power
to the wells, and at the same time, insure the water supply to Moyles' beneficial uses is not
interrupted; or (c) drill new wells that will supply the water to May les' beneficial uses and
construct and install all necessary features. Eagle must pay all construction and equipment costs
maintenance, and power costs, except for the electricity costs described above to add additional
pressure for domestic and commercial uses.
Muller
15. The priority date for water right no. 63-22650 (1887), owned by Eugene Muller
predates the 1953 amendment to the Ground Water Act that subjects water rights to the reasonable
pumping level standard. The original well for water right no. 63-22650 was constructed in the
shallow aquifer. In 1979 Muller dug a new well in the deep aquifer. Parker would only protect
Muller s water right from injury to water levels in the shallow aquifer. The hearing officer
detennines that pumping from the deep aquifer will not injure water rights diverting from the
shallow aquifer. Any new water levels (or pressures) in a new well constructed in 1979 are subject
to the reasonable pumping level standard established by the 1978 amendment to the Ground Water
Act as it relates to domestic water rights.
Howarth
16. Charles Howarth constructed a domestic well in the deep aquifer in approximately
2001 or 2002. The domestic well is under artesian pressure, maintaining 3 to 7 psi of pressure.
Howarth's well is subject to the reasonable pumping level standard established by the 1978
amendment to the Ground Water Act as it relates to domestic water rights.
PRELIMINARY ORDER - Page 18
EXHIBIT 105
PAGE 18 OF 53
Meissner
17. One of Meissner s three wells derives water from the shallow aquifer. Pumping
from the deep aquifer will not injure water rights diverting from the shallow aquifer.
18. The Double R Cattle Well is a domestic well and is entitled to Parker protection
because its use predates the requirement of ground water pumping levels under the 1978
amendment to the Ground Water Act.
19. The Double R Cattle Well is completed in the intermediate aquifer. Because Eagle
did not satisfy its burden of proving the relationship between the intermediate and the deep aquifer
the hearing officer will assume that the Theis equation drawdowns apply directly to the
intermediate aquifer. Under Parker Eagle must compensate Meissner for the additional costs of
pumping. Eagle must notify Meissner in the year it begins diverting water from the proposed
wells. To avail himself ofthe benefits of Parker Meissner must measure the water levels in the
Double R Cattle Well, beginning during the year Eagle begins pumping water from the proposed
wells. Meissner must allow Eagle the opportunity to observe or independently measure water
levels in the Meissner well. If Meissner monitors static water levels in his well and can show that
water levels continue to decline in the well after Eagle begins pumping water, Eagle must
compensate Meissner for the additional cost of pumping from up to 15 feet of water level declines
including costs of lowering a pump, if necessary. If the well dries up within the 15 feet of water
level declines, Eagle must either: (a) provide free water service to Meissner through its municipal
water system; or (b) redrill a well for Meissner and pay for the equipment, construction
installation, and additional energy costs to pump the well; or (c) acquire Meissner s water right
perhaps through condemnation.
20. The depth of the third Meissner well is unknown. Meissner had the burden to show
that he had a water right for the well bearing a priority date that would qualify for Parker
protection. Meissner did not satisfy his burden of proof for the third well.
Purdy
21. ' Dana and Viki Purdy own an inigation well that is approximately 90 feet deep and
is pumped to supply supplemental ground water for ilTigation when surface water is not available.
The water right for the ilTigation well bears a priority date of 1953. Pumping from the deep aquifer
will not injure water right no. 63-2920 because Purdys divelt ground water from the shallow
aquifer. The water level in the Purdy ilTigation well is not entitled to Parker protection.
22. The well for water right no. 63-15680 is a domestic well entitled to Parker
protection of ground water levels.
23. The point of diversion for water right no. 63-15680 is a well drilled to a depth of
250 feet. The well is probably completed in the deep aquifer, although the well does not free flow
at land surface. Under Parker Eagle must compensate Purdys for the additional costs of
pumping from a deeper depth. Eagle must notify Purdys in the year it begins diverting water from
the proposed wells. In order to avail themselves of the benefits of Parker however, Purdys must
measure the water levels in the well for water right no. 63-15680, beginning in the first year Eagle
PRELIMINARY ORDER - Page 19
EXHIBIT 105
PAGE 19 OF 53
begins pumping water from the proposed wells. Purdys must allow Eagle the opportunity to
observe or independently measure water levels in the well. IfPurdys monitor static water levels in
the well and can show that water levels decline in the well after Eagle begins pumping water, Eagle
must compensate Purdys for the additional cost of pumping from up to 19.5 feet of ground water
declines, including costs of lowering a pump, if necessary. If the well dries up, Eagle must either:
(a) provide free municipal water service to Purdys; or (b) redrill a well for Purdys and pay for the
equipment, construction, installation, and additional energy costs to pump the well; or (c) acquire
water right no. 63-15680, perhaps through condemnation.
24. Water right no. 63-22652 authorizes domestic and stockwater use, and bears a
priority date of June 1 , 1967. The well for water right no. 63-22652 is a domestic well entitled to
Parker protection of ground water levels.
25. The point of diversion for water right no. 63-22652 is a well drilled to a depth of
120 feet. The well is constructed in the intermediate aquifer. Water in the well is under artesian
pressure, but water does not free flow at ground surface. The well was constructed in 1966. Under
Parker Eagle must compensate Purdys for the additional costs of pumping from a deeper depth.
Eagle must notify Purdys in the year it begins diverting water from the proposed wells. In order to
avail themselves of the benefits of Parker Purdys must measure the water levels in the well for
water right no. 63-22652, beginning in the first year Eagle begins pumping water from the
proposed wells. Purdys must allow Eagle the opportunity to observe or independently measure the
water levels in their well. IfPurdys monitor static water levels in their well and can show that
water levels decline in the well after Eagle begins pumping water, Eagle must compensate Purdys
for the additional cost of pumping from up to 19 feet of ground water declines, including costs of
lowering a pwnp, ifnecessary. If the well dries up Eagle must either: (a) provide free municipal
water service to Purdys; or (b) redrill a well for Purdys and pay for the equipment, construction
installation, and additional energy costs to pump the well; or (c) acquire water right no. 63-22652
perhaps through condemnation.
26. Purdys also presented evidence about a well supplying water to Dana Purdy
mother s home. This well was drilled after domestic wells were subjected to the reasonable
pumping level standard.
Taylor
27. The Taylor wells are completed in the shallow aquifer. Pumping from the deep
aquifer will not injure water rights diverting from the shallow aquifer. The water levels in the
Taylor wells are not entitled to Parker protection.
Combe
28. The Combe well is 65 feet deep. Pumping from the deep aquifer will not injure
water rights diverting from the shallow aquifer. The water level in the Combe well is not entitled
to Parker protection.
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EXHIBIT, I 05
PAGE 20 OF 53
Rosti
29. Rostis own a domestic well drilled in 1980. The Rosti domestic well was drilled
after the 1978 amendment to the Ground Water Act that subjected domestic wells to the reasonable
pumping level. The Rosti domestic well is not entitled to Parker protection of grotUld water levels.
30. The Rosti irrigation well completed in the deep aquifer was drilled in 1992. The
Rosti irrigation well was constructed after the 1953 amendment to the Ground Water Act The
Rosti irrigation well is not entitled to Parker protection of grolUld water levels.
31. Water levels and pressures are not declining significantly in the area where water
is sought for appropriation. Nontheless, IDWR staffraised concerns about limitations of the
pump test. Furthermore, in its addendum to the pwnp test report, Eagle recognized some of the
uncertainties about sufficiency of the water supply and injury and recommended further grolUld
water monitoring. IDWR staff recommended the construction/identification by Eagle of two
observation wells, one up-gradient and one down-gradient ofthe proposed wells. In addition
Eagle must develop a monitoring, recording, and reporting plan for the observation wells.
32. By compensating the protestants entitled to protection of water levels/pressures
under Parker and by monitoring ground water levels during pumping, the proposed
appropriation by Eagle will not injure other water users.
33. There is sufficient water for the purposes sought by Eagle s applications. The
additional monitoring of the two dedicated observation wells will insure that the deep aquifer in
the area is not overappropriated,
34.The application is not filed in bad faith or for purposes of speculation or delay.
35.Eagle has sufficient monetary resources to complete the project.
36.The proposed project is in the local public interest.
37. The proposal conserves the water resources of the state of Idaho because
irrigation and other outside uses of water will be provided primarily by other water rights.
ORDER
IT IS HEREBY ORDERED that applications to appropriate water nos. 63-32089 and 63-
32090 are Approved subject to the following conditions:
Proof of application of water to beneficial use shall be submitted on or before August 1,
2012.
In connection with the proof of beneficial use submitted for this penn it, the permit holder
shall also submit a report showing the total annual volume, the maximum daily volume, and the
maximum instantaneous rate of flow diverted from the point of diversion authorized for this
PRELIMINARY ORDER - Page 21
EXHIBIT 105
PAGE 21 OF 53
pennit during the development period. The report shall also show the maximum instantaneous
rate of diversion, either measured or reasonably estimated by a qualified professional engineer
geologist, or certified water rights examiner, for the entire City of Eagle municipal water system.
The report shall also describe and explain how water diverted under this pennit provides an
additional increment of beneficial use of water for the City of Eagle municipal water system as
opposed to an altemative point of diversion for prior water rights already held and used by the
City of Eagle for its municipal water system.
Project construction shall commence within one year from the date of penn it issuance
and shall proceed diligently to completion unless it can be shown to the satisfaction of the
Director ofthe Department of Water Resources that delays were due to circumstances over
which the pennit holder had no control.
Subject to all prior water rights.
Place of use is within the service area of the City of Eagle municipal water supply system
as provided for under Idaho Law.
Prior to diversion of water under this right, the right holder shall install and maintain a
measuring device and lockable controlling works of a type acceptable to the Department as part
of the diverting works.
Right holder shall comply with the drilling permit requirements of Section 42-235, Idaho
Code and applicable Well Construction Rules of the Department.
Prior to diverting water from its existing or proposed wells, for the four wells identified as
points of diversion for water right nos. 63-2546 and 63-2609, and for the domestic use of water in
the home presently owned by Joseph and Lynn Moyle, the right holder shall: (a) supply water for
uses of the five Moyle wells at no cost to Moyles except the cost for incidental electricity that adds
additional pressure to the water supply for domestic and commercial uses and be ready and able to
immediately, physically deliver the water to Moyles; or (b) purchase the Moyle water rights
perhaps through condemnation. To be immediately ready and able to physically deliver water to
Moyles, the right holder must complete one of the following prior to initiating pumping from and
beneficial use of ground water under this right: (a) physically connect Moyles' water delivery
system to the right holder s municipal water system; or (b) with Moyles' consent , place the
necessary pumps in the Moyle wells, supply the power for the pumps, construct or install any other
physical features, including running power to the wells, and, at the same time, insure the water
supply to Moyles' ongoing beneficial uses is not interrupted; or (c) drill new wells that will supply
water to Moyles, and construct and install all necessary features. The right holder shall pay for all
construction and equipment costs, maintenance, and power costs, except for the electricity costs
described above to add additional pressure for domestic and commercial uses.
The right holder must compensate Meissner for additional costs of pumping :fl.'om the
Double R Cattle Well because of declines in water levels caused by pumping :fl.'om the authorized
points of diversion. The right holder must notify Meissner of the year it begins diverting water
from the proposed wells. In order to avail himself of the benefits of Parker however, Meissner
must measure the water levels in the Double R Cattle Well, beginning during the year Eagle begins
PRELIMINARY ORDER - Page 22
EXHIBIT 105
PAGE 22 OF 53
pumping water from the proposed wells. Meissner must allow Eagle the opportunity to observe or
independently measure water levels in the Meissner well. If Meissner monitors static water levels
in his well and can show that water levels continue to decline in the well after the right holder
begins pumping water, Eagle must compensate the right holder for the additional cost of pumping
from up to 15 feet of water level declines) including costs of lowering a pump, if necessary. Ifthe
well dries up within the 15 feet of water level declines) Eagle must either: (a) provide free water
service to Meissner through its mtmicipal water system; or (b) redrill a well for Meissner and pay
for the equipment, construction, installation, and additional energy costs to pump the well; or (c)
acquire Meissner s water right, perhaps through condemnation.
The right holder must compensate Purdys for the additional costs of pumping from the well
described as a point of diversion by water right no. 63-15680. The right holder must notify Purdys
in the year it begins diverting water from the proposed wells. In order to avail themselves of the
benefits of Parker however) Purdys must measure the water levels in the well for water right no.
63-15680, beginning in the first year the right holder begins pumping water from the proposed
wells. Purdys must allow the right holder the opportunity to observe or independently measure
water levels in the well. IfPurdys monitor static water levels in the well and can show that water
levels decline in the well after the right holder begins pumping water) the right holder must
compensate Purdys for the additional cost of pumping from up to 19.5 feet of ground water
declines) including costs of lowering a pump, if necessary. If the well dries up within the 19.5 feet
of ground water declines, the right holder must either: (a) provide free municipal water service to
Purdys; or (b) redrill a well for Purdys and pay for the equipment, construction, installation, and
additional energy costs to pump the well; or (c) acquire water light no. 63-15680, perhaps through
condemnation.
The right holder must compensate Purdys for the additional costs of pumping ITom the well
described as a point of diversion by water right no. 63-22652. The right holder must notify Purdys
in the year it begins diverting water from the proposed wells. In order to avail themselves of the
benefits of Parker however, Purdys must measure the water levels in the well for water right no.
63-22652, beginning in the first year the right holder begins pumping water from the proposed
wells. Purdys must allow the right holder the opportunity to observe or independently measure
water levels in the well. If Purdys monitor static water levels in the well and can show that water
levels decline in the well after the right holder begins pumping water, the right holder must
compensate Purdys for the additional cost of pumping from up to 19 feet of ground water declines
including costs of lowering a pump, if necessary. If the well dries up within the 18 feet of ground
water declines, the right holder must either: (a) provide free mtmicipal water service to Purdys; or
(b) red rill a well for Purdys and pay for the equipment, construction) installation, and additional
energy costs to pump the well; or (c) acquire water right no. 63-22652, perhaps through
condemnation.
Prior to diversion of water under this right, the right holder shall construct/identify two
observation wells, one up-gradient and one down-gradient ofthe production wells under this
right. The location and construction must be approved by the Department. Each observation
well must be constructed so that water levels in each of the three aquifers can be independently
measured.
PRELIMINARY ORDER - Page 23
EXHIBIT 105
PAGE 23 OF 53
Prior to diversion of water W1der this right, the right holder shall develop and the
Department must approve, a monitoring, recording, and reporting plan for the observation wells.
The right holder shall not provide water diverted under this right for the irrigation of land having
appurtenant surface water rights as a primary source of irrigation water except when the surface
water rights are not available for use. This condition applies to all land with appurtenant surface
water rights, including land converted from irrigated agricultural use to other land uses but still
requiring water to irrigate lawns and landscaping.
The Director retains jurisdiction to require the right holder to provide purchased or leased
natural flow or stored water to offset depletion of Lower Snake River flows if needed for salmon
migration purposes. The amount of water required to be released into the Snake River or a
tributary) if needed for this purpose, will be determined by the Director based upon the reduction
in flow caused by the use of water pursuant to this permit.
The wells constructed at the points of diversion shall be constructed in accordance with
the rules of the Idaho Department of Water Resources regarding well construction standards and
measurement of diversions and the rules of the Department of Environmental Quality for Public
Drinking Water Systems, IDAPA 58.01.08.
Dated this '1~ay of July, 2007.
Hearing Officer
PRELIMINARY ORDER -Page 24
EXHIBIT 105
PAGE 24 OF 53
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this day of July, 2007, a true and correct copy of
the foregoing document( s) described below were served by placing a copy of the same in the
United States mail, postage prepaid and properly addressed to the following:
Document(s) Served: Preliminary Order and Explanatory Sheet for "Responding to
Preliminary Orders..." when a hearing was held.
JERRY & MARY TAYLOR
3410 HARTLEY
EAGLE ID 83616
BRUCE M SMITH
MOORE SMITH BUXTON TURKE
225 N 9TH STE 420
BOISE ID 83702
CORRIN & TERRY HUTTON
10820 NEW HOPE RD
STAR ID 83669
SAM & KARl ROSTI
1460 N POLLARD LN
STAR ID 83669
JOHN M MARSHALL
GIVENS PURSLEY
PO BOX 2720
BOISE ID 83701-2720
LEEROY & BILLIE MELLIES
6860 W STATE ST
EAGLE ID 83616
CHARLES L HONSINGER
DANIEL V STEENSON
RINGERT CLARK CHARTERED
PO BOX 2773
BOISE ID 83701-2773
DEAN & JAN COMBE
6440 W BEACON LIGHT
EAGLE ID 83616
WESTERN REGION
A TTN JOHN WESTRA
2735 AIRPORT WAY
BOISE ID 83705-5082J)~.
Deborah 1. Gibson
Administrative Assistant
PRELIMINARY ORDER - Page 25
EXHIBIT 105
PAGE 25 OF 53
State of Idaho
DEPARTMENT OF WATER RESOURCES
322 East Front Street. P.O. Box 83720 . Boise , Idaho 83720-0098
Phone: [phone]. Fax: [phone] . Web Site: www.idwr.idaho.gov
August 14, 2007
C. L. "BUTCH" OTTER
Governor
DAVID R. TUTHILL, JR.
Director
Re:In the matter of the protested applications for permit to appropriate water nos.
63-32089 and 63-32090 in the name of the City of Eagle
Dear Parties:
Enclosed is another response to the Preliminary Order that the Idaho Department of
Water Resources ("Department") received from Protestant Mike Moyle in the above-referenced
matter. I am providing this copy to all parties because it appears this response was not provided
to the parties as required and stated in the Department's Rules of Procedures.
Hearing Officer
EnclosureCc: All the parties on service list (attached)
RE6
AUG 1 " b1::.
Givens Pursley, LLf!
EXHIBIT 105
PAGE 26 OF 53
July 27 , 2007
RECEIVED
Jut 3 t 2007
uEPARTMENT Dear Mr. Spackman, lfATERRESOURCE8
This letter is in response to your Preliminary Order issued July 1yth , 2007.
As a resident of this State and as a representative of my constituents, I have several
concerns about this Order.
The Department's letter dated 3-10-06 ordered the City of Eagle to arrange a time for
the anticipated pump tests with the other parties. Eagle defied this order. No
arrangements were made, no notifications were sent. In addition, from Eagle s own 7-
Day Aquifer Test page 2 they state the pumping well was moved to test well #2. None
of this was known to the protesters either. It is illegal for us to trespass on private
property. Living near the site, we kept watching for equipment, signs of their pump tests
and waited for arrangements to be made. In your Preliminary Order, page 8 item 16
you state that other parties were not given the opportunity to participate in the test and
to monitor their wells.
So Eagle defiles your Order, fails to arrange with protesters, moves their pump test to a
di~erent location unknown to protesters and we missed the opportunity to complain?
Just exactly when was our opportunity? We are at fault? We didn t even know the tests
were done until it was all over and too late to complain! How then is it the protesters
fault (page3)?
Why were the protesters shut out of the pump tests? What was Eagle afraid might be
found out if our wells were monitored at the time of their tests? So Eagle defies your
Order and gets rewarded with everything they asked for!
The test should have been done at a higher rate and for a longer period to determine
the true impacts. The Department knows this and should at a very minimum require a
new pump test at a higher rate before approving a water right.
Idaho code 42-237a-g states
, "
Water in a well shall not be deemed available to fill a
water right therein if withdrawal there from of the amount called for by such right would
affect.. ..the present or future use of any prior surface or ground water right or result in
the withdrawing of the ground water supply at a rate beyond the reasonably anticipated
average rate of future natural recharge.
Show me the study that proves that the "anticipated average rate of future natural
recharge" will cover the amount of water that this applicant will withdraw from this
aquifer.
Remember Eagle has the burden to prove extra water was available. They did not.
EXHIBIT 105
PAGE 27 OF 53
I also believe that IDWR needs to establish what the reasonable pumping level for this
aquifer is before they approve any new water rights. For IDWR to fail to define
reasonable pumping levels would be a disservice to all parties involved.
Information concerning the drop in our aquifer (wells having to go deeper to tap into
their water right) was not allowed in the hearing because of technicalities. I understand
there have been additional wells in this area that have had to go deeper since the
hearing. I thought the hearing was to gather all the facts available. Whatdifference
does it make to the facts who presents them? If there is information about drops in the
aquifer from whatever source, they should have been included in this hearing. To make
decisions without all the facts is a dangerous precedent to set.
In a letter from the Department dated December 26th, 2005 , It stated that the
Department will closely monitor construction of a pump test well and an additional
monitoring well. Who at the Department closely monitored the construction of these
wells and on what dates? Who at the Department monitored the actual pumping tests?
If the Department was notified in advance, why were not my constituents? Are there
screens at different levels that are allowing co-mingling? If you tell me no , how do you
know?
In the beginning, all of us were led to believe Eagle s permits represented a transfer of
water rights. They do not. They are for new water rights. What policy does the
Department have regarding mitigation? These rights represent a much greater use
much longer period of time and most importantly they are going to the foothills and
everybody knows it. M3 , Suncor, Avimore, etc. do not have the water to provide for
such large developments. The City of Eagle now has annexation signs clear to the top
of Horseshoe Bend Hill. Their service area is a moving target. It grows larger every
day. And it is going north! Dry foothills, no water, guess what? Eagle is gunning for
our aquifer. How can the Department possibly expect this aquifer. which is dropping, to
provide all the water for the dry foothills to the north? But that is what this order will set
the precedent for. Water spreading is illegal. But Eagle is headed in that direction with
this preliminary order.
United water and Star Water both have said they could provide water for the area. In
fact, I believe United Water and Star Water have both run lines into the area in the last
couple of months. Star has a new well and a water right which would allow them to
seNice part of the area today. I believe this application is not about providing water
much as it is about money.
If I am not mistaken, I believe your Department, has not approved a new consumptive
use for water unless it was for a municipality or a big developer, since 1992. I believe if
EXHIBIT 105
PAGE 28 OF 53
a farmer or some other individual were to sue the department over this fact they would
. probably win.
The law does not allow mining. By approving this application you will be allowing
mining of the aquifer. There is approximately a million acre foot of surface water leaving
the valley every year. Before using ground water you should look at the possibilities of
using the extra surface water and not mining the ground water. If you are approving this
application because of this million acre foot, you should be aware that new studies show
that the water that you are over-appropriating actually goes to the Payette River. At the
very least before approving this water right application you should do a study to make
sure where this quote "extra water" is going or coming from.
Last but not least, my biggest concern is a repeat of the Eastern Snake River plain
aquifer problem. Director Tuthill reported in June that it is a very serious problem with
no solution in site. As a state legislature we have expended millions of dollars to try to
fix the problem. No fix is in sight. Now we are looking at an even bigger problem in this
region due to over appropriation and mining of the aquifer here. In the Hagerman valley
area we are talking about fish farms. In the Treasure Valley we are talking about
thousands of homes and people.
Please take these concerns into consideration before making your final decision.
Respectfully,
-;24P/
Mike Moyle
EXHIBIT 105
PAGE 29 OF 53
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this /6'-clay of August, 2007, a true and correct copy
of the foregoing document(s) described below were served by placing a copy of the same in the
United States mail, postage prepaid and properly addressed to the following:
Docwnent(s) Served: Transmittal letter dated August 14, 2007 from Gary Spackman
Hearing Officer.
JERRY & MARY TAYLOR
3410 HARTLEY
EAGLE ID 83616
BRUCE M SMITH
MOORE SMITH BUXTON TURKE
950 W BANNOCK STE 520
BOISE ID 83702
CORRIN & TERRY HUTTON
10820 NEW HOPE RD
STAR ID 83669
JOHN M MARSHALL
GIVENS PURSLEY
PO BOX 2720
BOISE ID 83701-2720SAM & KARI ROSTI
1460 N POLLARD LN
STAR ID 83669
LEEROY & BILLIE MELLIES
6860 W ST ATE ST
EAGLE ID 83616
CHARLES L HONSINGER
DANIEL V STEENSON
RINGERT CLARK CHARTERED
PO BOX 2773
BOISE ID 83701-2773
DEAN & JAN COMBE
6440 W BEACON LIGHT
EAGLE ID 83616
WESTERN REGION
TIN JOHN WESTRA
2735 AIRPORT WAY
BOISE ID 83705-5082
~~,
Deborah 1. Gibson
Administrative Assistant
Certifica te of Service - Page 1
(As of 8/7/07)
EXHIBIT 105
PAGE 30 OF 53
State of Idaho
DEPARTMENT OF WATER RESOURCES
322 East Front Street. P.O. Box 83720 . Boise, Idaho 83720-0098
Phone: [phone]. Fax: [phone]. Web Site: www.idwr.idaho.gov
August 7, 2007
C. L. "BUTCH" OTTER
Governor
DAVID R. TUTHILL, JR.
Director
Re:In the matter of the protested applications for permit to appropriate water nos.
63-32089 and 63-32090 in the name of the City of Eagle
Dear Parties:
Enclosed are responses to the Preliminary Order that the Idaho Department of Water
Resources ("Department") received from two Protestants in the City of Eagle matter. I am
providing these copies to all parties because it appears these responses were not provided to the
parties as required and stated in the Department's Rules of Procedures. The Department has
received two Petition for Reconsideration therefore an evaluation of these responses will be
made by the hearing officer and a response will be issued.
;;;jY'
Hearing Officer
EnclosureCc: All the parties on service list (attached)
, LLP
EXHIBIT 105
PAGE 31 OF 53
,~,
July 24, 2007
FlECE1VED
JUL 2 B 7007
To:
From:
Re:
DEPARTfVJENTOF
Mr. Gary Spackman - IDWR hearing officer l.~rATFRqr-~OURCES
Mary Taylor - protestant
Preliminary Order" for City of Eagle applications # 63-32089 & 63-32090
Dear Mr. Spackman
This letter is my "Petition for Reconsideration
Facts Presented at Hearing
I provided scientific documentation of the water levels in my well dating from 1999 to
October 2006. This data was gathered by professional finns:
SPF Water Engineering of Boise
Hydro Logic, Inc. of Boise
Adamson Pump and Drilling Company ofNampa
That evidence established the following facts:Date Water level
September 8 , 1999 48 to 61 feet
(average 54.
75.June 25, 2006
Circumstances
during 1 hour flow test of my
well
measurement taken a few days
after Eagle s pump test
August 18, 2006 69.
October 11 2006 52.12
Additional tests have been taken since the hearing in December of 2006 - see attached copies.
December 18 , 2006 50.
February 19 2007 50.
April 26, 2007 52.
June 28 , 2007 52.Almost exactly 1 year from
when Eagle did pump tests
The 52.62' of June 2007 versus the 75.82' of June 2006 , following Eagle s pump test
represents a drop in the water level of my well of23-25 feet!
Certainly these additional tests, not available at the time of the hearing in December of
2006 , qualify as "further factual development" (as per your "Certificate of Service ). In
addition, they provide further evidence confirming the injury to my well during Eagle s pump
tests.
We were told the "burden of proof rests upon the applicant". Eagle has failed to prove
their pump test was NOT responsible for the unprecedented and inexplicable 23-25 foot drop in
the water level of my well. As per Item # 8, page 17 of the "Preliminary Order
" - "
Proof of
EXHIBIT 105
PAGE 32 OF 53
Injury" - Injury did occur to the water level in my well at the same time Eagle did their
pump tests. The City pumping this aquifer year-round at a far greater amount than the 1580
gpm is a guarantee of further injury.
Preliminary Order - Findings of Facts
Item #53 , page 15 - Taylor - claim no. 63-5040
This water right predates the Legislative action of 1951 or the modifications of 1953.
The "Priority date for this right is 03/01/1941". This well is a free flowing artesian well as
defined during the hearing, as is Mr. Moyle s. However, there is a shut off valve so the flow is
only used when needed. This water right point of diversion is within Y2 mile of Mr. Moyle
wells. This well is necessary for commerce as is Mr. Moyle s. I ask for at least a portion of the
same consideration for my well as given to the Moyle wells in this "Preliminary Order.
Conclusions of Law
Item #27, page 20 - Taylor - water levels in wells "not entitled to Parker protection
During the hearing in December of 2006, the following definition was established:
80 feet shallow aquifer
80-200 intermediate aquifer
200-500 deep aquifer
Item #8, page 17
~ "
proof of injury" and "factual similarities
Factual similarities" - taken from 103 Idaho 506, 650 P.2d 648. Parker v. Wallentine
are as follows:
The Parker well had been drilled.... to a depth of7! feet". My wells are at 80 feet. By
definition, Mr. Parker s well would have been in the shallow aquifer. My well is in the shallow
aquifer. "L. Junior Wallentine drilled a well..... to a depth of200 feet". Mr. Wallentine s well
was located in a deeper aquifer. City of Eagle s wells are in a deeper aquifer.Parker v. Wallentine My well v. Ci1y of Eagle
71 feet/deeper aquifer 80 feet/deeper aquifer
no water/pumped 1350 gpm water level drop 23-25 feet/1580 gpm
injury occurred within few minutes injury occurred within few days
To paraphrase Item #27, page 20: Mr. Parker s (Taylor s) well was completed in the
shallow aquifer. Mr. Wallentine (City of Eagle) pumping from the deep aquifer would not
injure water rights diverting from the shallow aquifer. This proved to be in error!
Factual similarities" are here presented. "Proof of injury" was presented at the hearing
with further confirmation on page 1 of this letter. To quote the "Preliminary Order" under
Conclusion of Law" Item # 15 - Muller: Parker would only protect Muller s water right from
injury to water levels in the shallow aquifer" (emphasis added). If Parker would have
protected the Muller s water right in the shallow aquifer, then it should protect mine in that
EXHIBIT 105
PAGE 33 OF 53
same shallow aquifer.
In addition, my water right #63-2858B predates any of the legislation of 1951 , 1953 or
1978. The priority date is 06/10/1951. Even with those facts in mind, the "Ground Water Act"
of 1951 reads as follows:
Section 1. It is hereby declared that ..... All rights to the use of ground water in
this state however acquired before the effective date of this act are hereby in all respects
validated and confirmed.
From the 1953 modification:
Section 1. It is hereby declared ..... early appropriators of underground water
shall be protected in the maintenance of reasonable ground water pumping levels as may be
established by the state reclamation engineer
The Eagle pennits have never been about providing water. United Water and Star Sewer
and Water have already been assigned the rights to do just that. In view of this fact, these
permits by the City represent nothing more than the following as quoted from the report of the
Parker v. Wallentine page 513 (Noh v. Stoner):
If subsequent appropriators desire to engage in such a contest (a race to the
bottom of the aquifer) the financial burden must rest on them and with injury to the prior
appropriators for loss of their water" (emphasis added).
These two permit applications represents nothing more than "a race to the bottom of the
aquifer" on the part of Eagle. Water mining!And it will prove to be at the expense of other
senior, prior water right holders. A drop of 23-25 feet in the shallow aquifer represents injury
to my water right and the potential loss of it completely. I am asking for reconsideration for
protection of my water rights under the Parker v. Wallentine case.
Quoting from page 510, footnote 4 of the report of Parker v. Wallentine:
In this very case the record demonstrates that the Department issued the water
pennit to Wallentine because its experts did not expect that the Wallentine well would have a
significant impact on the Parker domestic well. This later proved to be incorrect"This
Preliminary Order " will prove to be incorrect as well!
Experts deal in expectations. Water right holders deal in reality. When the experts
are again proven to be wrong, what then? Our water rights are voided, our land becomes
valueless and our livelihoods injeopardy. The injury is not "if' but "when . The decisions in
this "Preliminary Order" represent nothing more than the taking of private property for public
use without the protection by law of "just compensation
Furthermore, on June 12 2007, Director Tuthill reported to a Legislative Natural
Resources Interim Committee as to the water conditions around our State. His report only
reinforced our position. To quote Mr. Tuthill's comments to that committee - aquifers are being
pumped at greater rates than are sustainable, shallow aquifers are being depleted, junior water
right holders are being giving orders to shut off wells. Ground water throughout the State is in a
troubling condition with southern Idaho at the top of the list.
EXHIBIT 105
PAGE 34 OF 53
All the money and political power in the world can not restore water depletion from the
aquifer due to over appropriation, lack of recharge and no mitigation. These two Eagle permits
pose a very clear injury to our water rights, in the future, if they are granted.
There is currently a moratorium on any new agricultural wells. Eagle s 2 permits
represent a far greater drain on the aquifer than any new ago well in both volume and time
pumped. Ifag. wells pose a threat of injury, Eagle s two permits guarantee it. Eagle s use of
the water from this aquifer will go to sewage treatment facilities and down the Boise River -
gone forever. And incidentally, we all know where Eagle s "Service Area" is going - NORTH.
There is not enough water in Treasure Valley to green up those foothills, but Eagle is going to
try by draining this aquifer.
Why is Eagle not required to provide a percentage of recharge for every gallon taken from
this aquifer in your "Preliminary Order ? Why is Eagle not required to mitigate these "new
and "change of use" permits? That seems most inconsistent given the current conditions of our
ground water as outlined by Director Tuthill on June 12th of this year.
In conclusion, I am asking for reconsideration of your decision not allowing protection of
my water rights. This reconsideration is being asked due to the evidence presented at hearing
and "further factual developments" provided in this letter as well as similarities to past cases in
the law.
If water right permits # 63-32089 and 63-32090 are fully granted or any portion of them
the City of Eagle should be responsible for the injury to my well at their expense.
Compensation for my loss should be the exclusive responsibility of the City of Eagle.
Restoration of my senior water right should be done in a timely fashion and at the expense of
Eagle.
Sincerely,
rf\ (l~~ d ~f?j
Mary Taylor
3410 Hartley
Eagle, Idaho 83616
[phone]
enclosure: 2
EXHIBIT 105
PAGE 35 OF 53
In-12 11:07 AM SPF Water Engineering 2083834156 2/2
SPF Water En gin Bering, LLC
' water resource consultants
June 12,2007
Mary Taylor
3410 North Hartley Lane
Eagle, Idaho 83616
Subject: Water Level Monitoring Results
Dear Mrs. Taylor
I have been measuring water levels in your irrigation well in accordance with the
agreement signed by Mr. Jerry Taylor with SunCor Idaho, LLC. I am employed by
SPF Water Engineering, who Suncor Idaho has h1red to conduct this monitoring.
These water level measurements are being taken as part of a larger water level
monitoring program being conducted in northern Ada County,
During OUf conversation on June 11 , you requested a summary of the water level
measurements taken from your irrigation welt since December 2006. On December iI--
, 2006, I measured a depth to water of 50.05 feet, measured from a hole in the well
casing near the top. On February 19, 2007, I measured a depth to water of 50.58 1f- 2...
feet. On April 26, 2007, the depth to water was measured at 52,71 feet The April- "f;! 3
measurement was lower than the previous two measurements likely because the well
was being used for irrigation.
Please contact me with any questions you may have regarding these measurements.
Sincerely.
~~~
Jason W. Thompson, E.I.T.
Associate Engineer
Documenllnfo:
Filename: Letlerto Mary Taylor JuneO7,doo
SPF file number. 285.0170
eoo East River ParK Lane. Suite 105 , Boise. Idaho 83706 Tel: [phone] Fax: 2OB-?83-4156
EXHIBIT 105
PAGE 36 OF 53
~UUJ-JUl-~q U~: ~I ~M ~~r wacer ~nglneerlng ~ue~e~41~b
1 .
1/1
SPF Water Engineering, LLC
water resource consultants
July 24, 2007
Mary Taylor
3410 North Hartley Lane
Eagle, Jdaho 83616
Subject: Water Level Monitoring Results
Dear Mrs, Taylor
I have been measuring water levels in your irrigation well in accordance with the
agreement signed by Mr. Jerry Taylor with SLInGer Idaho, LLC. I am employed
SPF Water Engineering, who Suncor Idaho has hired to conduct this monitoring.
These water level measurements are being taken as part of a larger water level
monitoring program being conducted fn northern Ada County.
The latest water level measurement occurred or'! June 28. At that time, I measured a
-#
depth to water of 52.62 feet.
Please contact me with any questions you may have regarding this measurement.
Sincerely,~P.~
Jason W. Thompson, E.I.T.
Associate Engineer
Document Info;
Filename: Leiter to Mary Taylor JulyO7.doc
SPF fiI& numbe~ 285,11170
600 East River Park lane, Suile 105, Boise, Idaho 8370B Tel: [phone] Fax; 208-383-4156
EXHIBIT 105
PAGE 37 OF 53
To:Director Tuthill
IDWR
proof
RECEIVED
JUL 26 2007
OEPAtiTMENTOF
WATERRFROIIRCE8
July 25 2007
From:Mary Taylor
Re:Preliminary Order" issued July 17th for City of Eagle water pelmit applications
Dear Mr. Tuthill
I am a protestant to the City of Eagle s application for two water right permits in my
neighborhood. A hearing was held in December of2006. From the begilming of this process,
we were told repeatedly the burden of proof rested upon the applicant (the City of Eagle). The
hearing officer issued a "Preliminary Order" on July 17th
On June 12th, I attended the Legislative Interim Conunittee hearing on Natural Resources
at which you gave a report as to the condition of water sources throughout our State. Your
report was not encouraging. It only confirmed what all of us as protestants have known for
some time.
I am extremely concerned with the "Preliminary Order" issued by your Department. It is
my opinion that critical evidence regarding injury was ignored in the decision and the potential
for greater injury dismissed. Furthermore, additional confirming data of that presented at the
hearing has been made available since the hearing. I quote from the "Certificate of Service
which accompanied the Preliminary Order: "further factual development of the record". Such
factual evidence is available and should be considered before a final order is given.
I am asking that I and all of the protesters be allowed to have the opportunity to present
Oral Arguments" to you as outlined in the Hearing Officer s "Certificate of Service . The City
of Eagle failed to prove any thing in the hearing except the very real threat of injury to all of our
water rights. The ground water issues are far to critical to be over appropriated and evidence of
injury dismissed so casually. Please allow the protesters to at least bring their concerns to your
attention.
Your consideration to this critical matter is greatly appreciated.
Sincerely,
vY\ -=-! Q Gru
Mary Taylor
3410 Hartley
Eagle, Idaho 83616
[phone]
EXHIBIT 105
PAGE 38 OF 53
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EXHIBIT 105
PAGE 39 OF 53
July 26, 2007
To:
From:
Re:
Director Tuthill - IDWR
Mary Taylor
Preliminary Order for City of Eagle Water Permits
RECEIVED
if!s 1'1 "j
"'/"
l. i 2007
, ,
u.sPARTMENT OF
'f/(, FA RE8()IIRCES
Dear Mr. Tuthill
This letter is a follow-up to my letter dated July 25 , 2007. I wish to make three points
before any decision is handed down, that I believe are critical to this issue.
1. I have provided Mr. Spackman with additional evidence of injury to the water
level in my well at the time Eagle did their pump test. (See attached copy)
2. Eagle defied the Department's Order to:
Arrange a time for the anticipated pump tests with the other parties.
Not only did Eagle not arrange a time with the protestants nor make any effort to notify us
of the such, they also moved the pump test to a different well than originally designated. We
had no way of knowing, even though we were watching for equipment and such, until the tests
were already completed and the time for monitoring our wells was past. I just happened, almost
by accident, to be monitoring my well at the time. Incidentally, I offered my well to Eagle for
monitoring during the pump test and they refused (this was all brought out in the hearing).
3. In a letter dated December 26 2005, the Department stated that they (the
Department) intend "to closely monitor construction of these wells
That was not done nor did the Department do any observation during the pump tests. So
we only have the word of the City Eagle that all was completed properly.
In view of all this, I believe the minimum the Department can do to protect this valuable
but diminishing resource is:
a. require Eagle to re-schedule and re-do their pump tests
b. require Eagle to notify all protestants two weeks in advance of pump tests
c. require Eagle to pay for independent firms to monitor protestants' wells
d.. the Department have on-sight observers
e. allow protestants or representative of their choosing to observe pump test.
As to the actual pump tests, these facts. The well they used for testing is a free flowing
artesian well with a pressure of8.1# and a flow of 1125 gpm. Those facts compromise the
accuracy of the pump tests done with only 1580 gpm in June of2006. Therefore, to provide
more accurate information from which to draw conclusions of fact for any decision about these
two permits the following should be required of Eagle:
a. pump at 3500-4000 gpm
b. continuous for two (2) weeks
Since they are asking for 8.9cfs in their permits, these seem like minimal requirements to
achieve any degree of accuracy as to impact on other existing wells. Eagle will complain this is
too expensive, but it is not nearly as costly as drilling new well for everyone affected or
replenishing the aquifer once it has been depleted.
And by the way, what is going to limit Eagle to 8.9cfs? They have already demonstrated
their willingness to defy Department orders. The Department has neither the manpower nor
EXHIBIT 105
PAGE 40 OF 53
. resources to ride herd on them. So who is to say once they have these two permits they will not
. pump as much as they please? I believe their permits are for 5 wells which would clearly
provide a far greater capacity than 8.9cfs. Once they are in the aquifer, it is theirs to plunder.
Given all the facts and history, these permits pose too great a risk to this aquifer to not
require some additional testing and infonnation gathering before any final decision is rendered.
Again, I appreciate your attention to this matter.
Sincerely,
(\~
~ d ~"L
Mary Taylor "
-.-
3410 Hartley
Eagle, Idaho 83616
[phone]
EXHIBIT 105
PAGE 41 OF 53
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1'!::Y day of August, 2007, a true and correct copy
of the foregoing document(s) described below were served by placing a copy of the same in the
United States mail, postage prepaid and properly addressed to the following:
Document(s) Served: Transmittal letter dated August 7 2007 from Gary Spackman
Hearing Officer.
JERRY & MARY T AYLOR
3410 HARTLEY
EAGLE ID 83616
BRUCE M SMITH
MOORE SMITH BUXTON TURKE
950 W BANNOCK STE 520
BOISE ID 83702
CORRIN & TERRY HUTTON
10820 NEW HOPE RD
81' AR ID 83669
SAM & KARl ROSTI
1460 N POLLARD LN
STAR lD 83669
JOHN M MARSHALL
GIVENS PURSLEY
PO BOX 2720
BOISE ID 83701-2720
LEEROY & BILLIE MELLIES
6860 W STATE ST
EAGLE lD 83616
CHARLES L HONSINGER
DANIEL V STEENSON
RINGERT CLARK CHARTERED
PO BOX 2773
BOISE lD 83701-2773
DEAN & JAN COMBE
6440 W BEACON LIGHT
EAGLE ID 83616
WESTERN REGION
A TTN JOHN WESTRA
2735 AIRPORT WAY
BOISE lD 83705-5082
~~.
Deborah J. Gibson
Administrative Assistant
Certificate of Service - Page 1
(As of 817107)
EXHIBIT 105
PAGE 42 OF 53
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CHARLES L. HONSINGER (ISB #5240)
DANIEL V. STEENSON (ISB #4332)
JON C. GOULD (ISB #6709)
RINGERT CLARK CHARTERED
455 S. Third Street, P.O. Box 455
Boise, Idaho 83701-2773
Telephone: [phone]
Facsimile: [phone]
Givens Pursley, LLP
Attorneys for Protestants Joseph, Lynn and Michael Moyle
Eugene Muller, Dana and Viki Purdy, Charles W. Meissner, Jr.
Charles Howarth and Mike DixonlHoot Nanney Farms, Inc.
BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
IN THE MATTER OF APPliCATIONS TO
APPROPRIATE WATER NOS. 63-32089
AND 63-32090 IN THE NAME OF THE
CITY OF EAGLE
PETITION FOR CLARIFICATION/
RECONSIDERATION
COMES NOW Protestants Joseph, Lynn and Michael Moyle, Eugene Muller, Dana and Viki
Purdy, Charles W. Meissner, Jr., Charles Howarth and Mike DixonjHoot Nanney Farms, Inc.
(hereinafter "Protestants ), by and through their counsel of record, Ringert Clark Chartered, 455 S.
Third Street, P.O. Box 2773 , Boise, Idaho 83701-2773, and hereby file this petition for
clarification/reconsideration of the hearing officer s July 17, 2007 Preliminary Order. This Petition
is supported by the record herein, and is filed pursuant to IDAPA37.01.01.730.02(a) and I.c. ~67-
5243. This Petition is timely based upon the Preliminary Order service date of July 18, 2007 listed
on the attached Certificate of Service.
PETITION FOR CLARIFICATION/RECONSIDERATION - Page 1
EXHIBIT 105
PAGE 43 OF 53
SUMMARY
The City of Eagle filed its applications to appropriate water right nos. 63-32089 and 63-
32090 in January of 2005. The two applications sought a total of 8.9 cfs from groundwater for
municipal purposes within the City of Eagle service area. Of the 8.9 cis sought by the City, 6.
cis is sought for fire protection. Preliminary Order p. 7, ~1O. Various parties, including the
Protestants, protested the applications, and IDWR initiated proceedings in the matter.
On March 10, 2006, IDWR hearing officer Gary Spackman issued an Order Continuing
Hearing and Canceling Prehearing Deadlines. That Order required that the City of Eagle
arrange a time for the anticipated pump tests with the other parties." As the hearing officer
found, the City of Eagle failed to comply with the Order and no time was arranged.
On July 12, 2006, the attorney for the City of Eagle informed the Department that the
pump test was complete. Protestants received notification from the City of Eagle of the pump
test a month after it was completed. Therefore, the Protestants, through no fault of their own
were denied the opportunity to observe the water levels in their wells and gather data
simultaneous with the pumping conducted by the City of Eagle. Preliminary Order, p. 8, m6.
The Protestants filed a Motion for Continuance of the hearing in November, 2006 based
in part upon the fact that the Protestants had no opportunity to participate in the pump test. The
hearing officer denied the Motion on the grounds that the Protestants had not raised the City'
failure to notify them of the pump test as an issue between notification of its completion in July
and the date of the Motion in November. On November 22, 2006, the Protestants filed a Motion
in Limine seeking to exclude from evidence all of the data and results of the pump test because
the Protestants had no opportunity to participate in the same by collecting data from their own
PETITION FOR CIARIFICATION/RECONSIDERATION - Page 2
EXHIBIT 105
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wells during that test. The hearing officer denied the Motion in Limine holding that the
Protestants "did not avail themselves of the opportunity" to "complain about their inability to
participate in the test" earlier. Preliminary Order p. 3.
The hearing officer found that the seven day aquifer test was inadequate in several ways.
The seven day aquifer test was conducted under a pumping rate of 1 580 gallons per minute.
Preliminary Order p. 8, ~15. In a staff memorandum reviewing the City of Eagle s 7-Day
Aquifer Test report, IDWR stated that a "higher pumping rate than was originally proposed for
the lower yielding Monitoring Well #1 (Legacy Well) could and should have been used to stress
the system. If Eagle had done so, the effect on other nearby wells and possible boundary
conditions would have been more clearly identified.Preliminary Order p. 8, 1I18.a. In a
supplemental staffmernorandum dated February 27 2007, IDWR stated that "the aquifer test
was not of sufficient duration to definitively evaluate aquifer boundary conditions and 10ng-tenn
impacts associated with pumping.Preliminary Order p. 10 118. The hearing officer found that
the only direct measurements of drawdowns in the deep aquifer caused by pumping are the
measurements of drawdowns for the Legacy well.Preliminary Order pp. 10 - 11 1125.
In his decision, the hearing officer discussed the 1951 Ground Water Act, noting that
ground water appropriators would be required to pump from a "reasoable pumping level"
established by the Department.Preliminary Order p. 16 11 Then, the hearing officer
determined that "(pJumping of 8.9cfs will not cause water level declines in area wells below a
level that is reasonable" without stating what that level actually is, or providing any citations to
factual support for that conclusion. Preliminary Order p. 17 1111.
PETITION FOR CLARIFICATION/RECONSIDERATION - Page 3
EXHIBIT 105
PAGE 45 OF 53
ARGUMENT
The Preliminary Order Must Include a Copy of the Approved Permit
The Preliminary Order approved applications to appropriate water nos. 63-32089 and 63-
32090 subject to a number of listed conditions. The Preliminary Order does not include the
permit with the listed conditions as is typical IDWR practice. All parties must be given an
opportunity to review the permit with the conditions listed thereon prior to issuance of the same
pursuant to the Preliminary Order. Review of the approved permit may identify errors
omissions, mistakes and eliminate potential misunderstandings.
The Permit Should Limit or Deny the Ouantity Proposed for Fire Protection
In its Findings of Fact the Preliminary Order finds that the "applications propose delivery
of water" for 2 000 homes in a construction project, that the "peak one-hour demand for in-house
use in 2 000 residential units is 2.23 cfs" and that 6.68 cfs of the projected 8.9cfs total
instantaneous demand sought by the City is for fire protection purposes. Preliminary Order p. 7
no. Thus, the 8.9 cis total sought under the permit applications was approved based on the fact
that 6.68 cis is required for fire protection. Despite these findings of fact, the Preliminary Order
contains no condition limiting the use of 6.68 cis of the total8.9cfs sought for fire protection
purposes. Such a condition must be imposed because without it, the "municipal" purposes for
which the water right is sought may permit the entire quantity to be used on a year-round basis
for "residential, commercial, industrial, irrigation of parks and open space, and related purposes.
See LC. ~42-202B(6). As "fire protection" use of a water only occurs either during a fire, or
while filling a water storage facility to be used for "fire protection" purposes, the potential for
abuse and overuse of the permitted water right for other purposes under the "municipal" label is
PETITION FOR CLARIFICATION/RECONSIDERATION - Page 4
EXHIBIT 105
PAGE 46 OF 53
great without the limiting condition. As an alternative, IDWR may simply deny the 6.68 cis
sought for firefighting purposes as it is unnecessary. See lC. ~42-201(3)
A New and Adequate Pump Test Must be Required Prior to Granting the Permit
The City of Eagle s pump test and the results thereof are technically deficient. IDWR
itself recognizes the deficiencies: (1) the pump test was not conducted at a pumping rate
sufficient to identify boundary conditions and the impacts thereof upon nearby wells; (2) the
length of the pumping test was insufficient to properly evaluate boundary conditions and the
impacts of long-term pumping; (3) there are only measurements from one well (the Legacy well)
that provide drawdown data for the deep aquifer from which the City is proposing to appropriate
its water rights; (4) despite the hearing officer s order requiring the City to arrange a time with
the other parties to the case for a pump test that would allow Protestants to measure the water
levels in their wells during the test, the City failed to notify the Protestants of the pump test until
after it was over. IDWR compounded the City's error by denying the Protestants' motions based
upon the City s failure to follow the hearing officer s order. The fact is that the Protestants raised
the issue well before the hearing - the failure to require the City to follow the hearing officer
orders has resulted in a serious infringement of Protestants' rights.
In addition to the deficiencies recognized by IDWR, the City of Eagle s monitoring data
is so insufficient that IDWR is without adequate information to reach supportable conclusions as
to potential impacts water nos. 63-32089 and 63-32090 will have on the local ground water
levels. As noted above, the Protestants were not provided the opportunity to monitor water
levels in their wells during the pump test. Water level monitoring conducted by the applicant
was limited to the well being pumped and six observation wells. In its Findings of Fact, the
PETITION FOR CLARIFICATION/RECONSIDERATION - Page 5
EXHIBIT 105
PAGE 47 OF 53
Preliminary Order finds that "(t)he shallow aquifer is a water table aquifer extending from land
surface to approximately 100 feet below land sunace. The intermediate aquifer is generally
found from 100-200 feet below ground surface. . .Preliminary Order p. 10 1110. The
Preliminary Order Findings of Fact further provide that "(t)he deep aquifer is located at depths
below approximately 200 feet. . .ld.
The observation wells included two shallow wells, 15 feet deep and 55 feet deep, located
adjacent to one another. Thus, the monitoring data from the shallow aquifer is limited to only
one point and lacks spatial representation ofthe shallow aquifer. Additionally, the monitoring
data collected from the shallow aquifer wells shows a gradual decline during the monitoring
period suggesting impact from pumping.
No monitoring wells were screened or had open intervals in the intermediate aquifer
(100-200 feet below ground sUlface). Monitoring well nos. 1 , and 11/121 were screened or
had open intervals at depths greater than 200 feet below ground surface. Water levels in three of
the four deep aquifer monitoring wells did not fully recover to pretest levels at the end of the
monitoring period even though the pumping period was only seven days and the pumping rate
was a fraction of the rate sought by the Applicant.
The monitoring data collected does not provide IDWR with adequate information to
reach any conclusion as to the impact approving water nos. 63-32089 and 63-32090 will have on
the local ground water levels. These deficiencies can all be remedied by simply requiring the
City to conduct a pump test that is properly overseen by IDWR and in which the Protestants have
Monitoring well nos. 11 and 12 are the same well with two open intervals located at 345
to 425 and 400 to 500 feet below ground surface. The interval through which the water enters
the well cannot be distinguished.
PETITION FOR CLARIFICATlONIRECONSIDERATlON - Page 6
EXHIBIT 105
PAGE 48 OF 53
an opportunity to participate. IDWR must issue such an Order, and must withhold approval of
these permit applications until such a test is properly conducted, and the results properly
evaluated.
The Department Must List the "Reasonable Pumping Level" it References in the
Preliminary Order
The hearing officer s determination that "(p)umping of8.9 cfs will not cause water level
declines in area wells below a level that is reasonable" is without support. The hearing officer
does not state what the "reasonable pumping level" is, and does not cite any support for his
conclusion. At a bare minimum, IDWR must establish the reasonable pumping level (see Lc.
~42-237a), and list the factual support for its conclusion. Without such factual information, the
hearing officer s determination is simply conclusory, and arbitrary and capricious.
CONCLUSION
For the foregoing reasons, IDWR should reconsider and clarify the Preliminary Order.
IDWR must order that the City of Eagle conduct a proper pumping test with appropriate
parameters and sufficient monitoring in which all of the Protestants actually have the opportunity
to participate. If IDWR determines that there is a "reasonable pumping level" to which certain
wells are subject, it must state what that pumping level actually is, and cite support for its
conclusion. Finally, any Preliminary Order must also be issued with the proposed permit itself
with all conditions to which it is subject including a condition limiting 6.68 cis of the quantity
sought by the City to fire protection purposes (alternatively, IDWR may simply deny the "fire
protection" flows sought as unnecessary). Protestants request that the hearing officer set a
briefing and argument schedule.
PETITION FOR CLARIFICATION/RECONSIDERATION - Page 7
EXHIBIT 105
PAGE 49 OF 53
DATED this 1st day of August, 2007.
Cl:Lc~w: Charles L. Honsinger
Attorneys for Protestants
PETITION FOR CLARIFICATIONIRECONSIDERATION - Page 8
EXHIBIT 105
PAGE 50 OF 53
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of August, 2007, the above and foregoing
document was served on the following by placing a copy of the same in the United States mail
postage prepaid and properly addressed to the following:
Jerry & Mary Taylor
3410 Hartley
Eagle, Idaho 83616
Leeroy & Billie Memes
6860 W. State Street
Eagle, Idaho 83616
Corrin & Terry Hutton
10820 New Hope Road
Star, Idaho 83669
Dean & Ian Combe
6440 W. Beacon Light
Eagle, Idaho 83616
Sam & Kari Rosti
1460 N. Pollard Lane
Star, Idaho 83669
Bruce Smith
Moore Smith Buxton & Turke
225 N. 9th Street, Ste.420
Boise, Idaho 83702
Western Region
Attn: John Westra
2735 Airport Way
Boise, Idaho 83705-5082
John M. Marshall
Givens Pursley
O. Box 2720
Boise, Idaho 83701
tnarles L. Honsinger
PETITION FOR CLARIFICATION/RECONSIDERATION - Page 9
EXHIBIT 105
PAGE 51 OF 53
BEFORE THE DEPARTMENT OF WATER RESOURCES
OF THE STATE OF IDAHO
IN THE MATTER OF APPLICATIONS TO
APPROPRIATE WATER NOS. 63-32089 AND
63-32090 IN THE NAME OF THE CITY
OF EAGLE
ORDER GRANTING
PETITIONS FOR
RECONSIDERATION
On July 17, 2007, the hearing officer issued a preliminary order in the above titled matter
approving applications nos. 63-32089 and 63-32090. On July 18 2007 , the preliminary order was
served on the parties by mailing a copy of the preliminary order to the each of the parties via the
United States Postal Service.
The following parties filed timely petitions for reconsideration: United Water Idaho;
Joseph, Lynn and Mike Moyle (Moyles), Eugene Muller, Dana and Viki Purdy, Charles W.
Meissner, Jr., Charles Howarth, and Mike Dixon/Hoot Nanney Fmms, Inc., all represented by
Ringert Clark Chartered; Mary Taylor; and the City of Eagle, In addition, the hem'ing officer
received individual comments from Mike Moyle, Eugene Muller, Charles Howarth.
On August 2 2007, United Water Idaho filed a Withdrawal o/Petitionfor Reconsideration.
On August 14 2007, Ringert Clm"k Chartered withdrew as counsel for Dana and Viki
Purdy, Dana & Viki Purdy are parties now representing themselves.
ORDER
IT IS HEREBY ORDERED that the Petitions for Reconsideration timely filed with the
Idaho Department of Water Resources m'e Granted. An amended preliminary order will be
expeditiously issued.
Dated this y of August, 2007.
Gary Spackman
Hearing Officer
OnJer. Granting Petit ions for Reconsideration, Page 1
EXHIBIT 105
PAGE 52 OF 53
CERTIFICATE OF SERVICE
,J)
I HEREBY CERTIFY that on this Z'z-day of August, 2007, a true and correct copy
of the foregoing document described below was served by placing a copy of the same in the
United States mail, postage prepaid and properly addressed to the following:
Document Served:Order Granting Petitions for Reconsideration
BRUCE M SMITH
MOORE SMITH BUXTON TURKE
225 N 9TH STE 420
BOISE ID 83702
SAM & KARl ROSTI
1460 N POLLARD LN
STAR ID 83669
JOHN M MARSHALL
GIVENS PURSLEY
PO BOX 2720
BOISE ID 83701-2720
LEEROY & BILLIE MELLIES
6860 W STATE ST
EAGLE ID 83616
CHARLES L HONSINGER
DANIEL V STEENSON
RlNGERT CLARK CHARTERED
PO BOX 2773
BOISE ID 83701-2773
DEAN & JAN COMBE
6440 W BEACON LIGHT
EAGLE ID 83616
DANA & VICKI PURDY
5926 FLOATING FEATHER
EAGLE ID 83616
JERRY & MARY TAYLOR
3410 HARTLEY
EAGLE ID 83616
WESTERN REGION
TIN JOHN WESTRA
2735 AIRPORT WAY
BOISE ID 83705-5082
CORRIN & TERRY HUTTON
10820 NEW HOPE RD
STAR ID 83669
~~,
Deborah 1. Gibson
Administrative Assistant
Order Granting Petitions for Reconsideration - Page 2
EXHIBIT 105
PAGE 53 OF 53