knightDate Received
City o f Ye Zm ree
By
Community Deoelopment
Department
1VOTICE OF APPEAL
Fee: Staff Decision - $50.00
Hearing Examiner Decision - $100.00
(In addition, any professional service
charges per Resolution #388)
A Closed record appeal may follow either an open record hearing or an open record administrative
decision on a project permit application when the appeal is an the record, and no or limited now
evidence or information is allowed to be submitted. Appeals on Category 1 & II project decisions are
heard by the City Council Appeals on Category III & IV project decisions as well as Category I & II
decisions which have been appealed to the City Council go to Superior Court and follow the judicial
review process set forth in RCW 366.70C. A Notice of Appeal must be filed within 1Q days of
Notice of Flnal Decision.
PRQJECT CASE NUM6E'R BEING APPEALED ~N1I-08-0397-YL
DAT% OF NOT1t:E' OF FINAL D~'CISION May 1, 2009
APPELLANT(S) JZ Knight
Mailing Address_CIo Tom MCDOnald, Cascadia Law Group PLLC, 606 Columbia
City, Stale and zip_ Suite 272, Olympia, WA 98501
Telephone,R,{360) 786-5057 EMAIL
SPECIFIC ITEMS GF DECISION BEING APPEALED {attach additional sheet ff necessary):
See attached.
E affrm that all answers, statements and information contained in and submitted with this application
are complete and accurate to the best of my knowledge. I also affirm that I am the owner of the
subject site or am duly authorized by the owner to act with respect to this application. Further, I grant
permission from the owner to any and all employees and representatives of the City of Yelm and other
governmental agencies to enter upon and inspect said property as reasonably necessary to process
this application. I agree to pay all f the City that apply to this application.
~`- //
Signed ~ D~-~- ~~ ~~ ~t~('~~ Date May 22, 2009
Tom McDonald
Cascadia Law Group PLLC
Attorneys for JZ Knight
tt. SW,
1US Yefm Aucn ue 1Vesi (360) 159-3835
PD Bos 479 (360) 158-311J F~LI'
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Attachment to Notice of Appeal
Statement of Specific Items of Decision Being Appealed
JZ Knight appeals the Mitigated Determination ofNon-Significance (MDNS) issued
May 1, 2009, City of Yelm File No. ENV-08-0397-YL. A copy of the MDNS is attached as
Exhibit A to this appeal and is incorporated herein by this reference. JZ Knight owns and
operates a Group A water system, Zebra's Aqueous Substance, DOH No. 61131N, and several
groundwater wells just outside the City of YeIm (City). The water system is authorized to
withdraw groundwater under water right certifcate no. 5866, as amended. The right authorizes
the withdrawal from six wells in the Thompson Creek/Nisqually River basin. JZ Knight also
holds surface water right no. 7053 from Thompson Creek, which flows through the property. JZ
Knight provided comments to the City of Yelm pursuant to the Washington State Environmental
Policy Act, chapter 43.21 C RCW (SEPA), by letter dated May 1 S, 2009 (SEPA Comment
Letter}. A copy of that SEPA Comment Letter is attached Exhibit B to this appeal and is
incorporated herein by this reference.
The MDNS addresses allocation of 3,233.73 acre-feet per year (afy) and transfer of
952.27 afy for municipal purposes in the City, and which is also the subject of three water right
applications filed with the Department of Ecology (Ecology), identified as No. G2-29084,
No. G2-29085, and No. G2-29086 (collectively referred to as the "Applications," or the "project"
or "proposal"). The City served as the lead agency in considering the environmental impacts of
the proposal and in issuing the MDNS.
Appellant JZ Knight appeals the MDNS on the following grounds:
1. The proposal will have a probable significant adverse impact on the environment.
ATTACHMENT TO NOTICE OFAPPEAL -Page 1 of 4
2. The proposed mitigation measures will not reduce the significant adverse impacts
to a level ofnon-significance.
3. Without limitation to the general challenges above, JZ Knight identifies the
following areas of the environment where significant adverse impacts are probable:
a. groundwater (quantity and quality, including impacts to designated aquifer
recharge areas); and
b. surface water (quantity and quality, including instream flows of rivers,
creeks, streams, and tributaries).
4. The MDNS is based on an environmental checklist and additional environmental
documents that are incomplete, speculative, uncertain, insufficient, and unreliable, and because
of this fact, the MDNS is based upon information not reasonably suffcient to evaluate the
environmental impact of the proposal. These insufficiencies include, without limitation:
a. reliance on transfer of water rights not yet approved by Ecology;
b. reliance on a mitigation plan (City of Yelm Water Rights Mitigation flan
(October 2008)) for which Ecology is continuing to accept comments, which Ecology
does not consider f nal, and which Ecology has not approved;
c. reliance on "opportunities for joint mitigation" with the City of Olympia,
the City of Lacey, and the Nisqualiy Indian Tribe that are still "being discussed" (MDNS
at ¶ 7);
d. reliance on assertions that the City "has entered into discussions with the
Nisqualiy Indian Tribe regarding out-of--kind mitigation on Yelm Creek" {MDNS at
¶ 15);
ATTACHMENT TO NOTICE OFAPPEAL -Page 2 of 4
e. reliance on assertions that the Ciry is "negotiating a cooperative, cost-
sharing agreement with the Cities of Olympia and Lacey to participate in the construction
of a regional reclaimed water infiltration facility that will mitigate impacts" (MDNS at
¶ 16);
f. reliance on assertions that the City is "working on an agreement with the
Nisqually Tribe," (MDNS at ~ 13), for the addition of instream flow quantities 4o the
Nisqually River;
g. reliance on speculative and unreliable plans to acquire sufficient water
rights for mitigation purposes and to offset potential deple#ions in the upper, middle, and
lower reaches of the Deschutes River and Silver Creek and Spring; and
h, reliance on further "consultation" with the Squaxin Island Indian Tribe to
address "fisheries habitat concerns," (MDNS at ¶ 17), without identifying those concerns
or addressing the adverse impact or necessary mitigation.
5. The MDNS is premature and unreliable as it is based on a proposed mitigation
plan (City of Yelm Water Rights Mitigation Plan (October 2008)) that is speculative, incomplete,
and not finalized.
6. The MDNS fails to address the cumulative adverse environmental impacts of the
proposal, including, without limitation, cumulative impacts resulting from growth caused by the
proposal.
7. The City had insufficient information to evaluate the project's environmental
impact--there exist significant gaps in the relevant information and there is scientific uncertainty
concerning the significance of various impacts. The City should have obtained the missing
information before making its threshold determination.
ATTACHMENT TO NOTICE OFAPPEAL -Page 3 of 4
The MDNS is based on an environmental checklist and additional environmental
documentation that fails to identify, address, or sufficiently consider the probable significant
adverse impact to any fish, despite, without limitation, the known presence of salmon and
salmon habitat within or near the project area.
The MDNS fails to specify the required mitigation measures that attach to the
City's proposal and fails to clarify, change, or condition the proposal to ensure compliance with
any specific mitigation measures.
10. The MDNS is a threshold determination for a proposal that is no longer necessary
for the full quantities requested in the Applications.
11. The SEPA process was not properly followed. The City failed to follow the
proper procedure required by SEPA laws and regulations in making its threshold determination
and the appeal procedure provided by the City does not comply with the SEPA laws and
regulations.
Based on the foregoing, the City should be ordered to withdraw the MDNS.
ATTACHMENT TO NOTICE OF APPEAL -Page 4 of 4
EXI~IBI'i' A
Mitigated Determination ofNon-Significance
File No. ENV-08-0397-YL
Mitigated Determination of Non-Significance
File Number ENV-08-0397-YL
Proponen#: City of Yelm, Washington
Description of Proposal: Allocation of 3,233.73 acre-feet (af) of water per year and
the transfer of 952.27 acre-feet of water per year for municipal purposes in 4 Phases
between 2010 and 2037. Phase 1 would allocate 554 of of water in the SW Yelm area
between 2010 and 2012. Phase 2 would allocate an additional 388.34 of of water in the
same area, and transfer 719.66 of to the SW Yelm area from the existing downtown
wells. Phase 3 would allocate an additional 875.39 of of water in the SW Yelm wellfield
and transfer 232.61 to SW Yelm from the Golf Course well currently under
development. Phase 4 would allocate an additional 1,416 of of water in the SW Yelm
wellfield for a total water portfolio for Yelm (both existing and new water rights) of 4,186
acre feet.
Location of the Proposal: The SW Yelm wellfield would be located in the Southwest
quadrant of the City of Yelm in the area of the Thurston Highlands Master Planned
Community.
SectionlTownshiplRange: The property is approximately 1,240 acres and is located in
the South '/~ of Section 23, the East 'h of Section 26, and Section 27, Township 17
North, Range 1 l=ast, W.M.
Threshold Determination: The City of Yelm as lead agency far this action has
determined that this proposal does not have a prabable significant adverse impact on
the environment. Therefore, an Environmental Impact Statement (EIS) will not be
required under Section 43.21 C.030 (2)(c) RCW. This decision was made after review of
a completed environmenfaf checklist and other information on file with the lead agency.
This information is available to the public on request.
ConditionslMitigating Measures: See Attachment A
Lead agency: City of Yelm
Responsible Official: Grant Beck, Community Development Director
Date of Issue: May 1, 2009
Comment Deadline: May 15, 2009
Appeal I' e' ay 22, 20
Gr Bec , u ' y velopment Director
This Miti ate Determination o Non-Significance (MDNS) is issued pursuant to Section 197-11-340
AC. omments must be submitted to Grant Beck, Community Development Department, at City of
Yeim, 905 Yelm Avenue West, Yelm, WA 98597, by May 15, 2009, at 5;00 P.M. The City of Yelm will not
act on this proposal prior to May 22, 2009, at 5:00 P.M.
You may appeal this determination to the Yelm Hearing Examiner, at above address, by submitting a
written appeal no later than May 22, 2009, at 5:00 P.M. Yau should be prepared to make specific factual
objections. Cantact Grant Beck, Community Development Director, to learn more about the procedures
for SEPA appeals. This MDNS is not a permit and does not by itself constitute project approval. The
applicant must comply with all applicable requirements of the City of Yelm prior to receiving construction
permits which may include but are not limited to the City of Yelm Comprehensive Plan, Zoning Code (Title
17 YMC), Critical Areas Code (Chapter 14.08 YMC), Stormwater Drainage Design and Erosion Control
Manual, International Building Code, Critical Areas Regulations (Title 14 YMC), Road Design Standards,
Platting and Subdivision Code (Title 16 YMC), and the Shoreline Master Program.
DO NOT PUBLISH BELOW THIS LINE
Published: Nisqually Valley News, May 1, 2009
Posfed in public areas: May 1, 2009
Copies to: All agencieslcitizens on SEPA mailing list and adjacent property owners
Dept. of Ecology wlchecklist
Dept. of Ecology Southwest Region, Water Resources Section
Atfachment A
Mitigated Determination of Non-Significance
ENU-08-0397-YL
Findings of Fact
1. This Mitigated Determination of Non Significance is based on the project as
proposed and the impacts and potential mi#igation measures reflected in the
following environmental documents:
/ Environmental Checklist (December 2008, City of Yelm)
/ Yelm Water Rights Mitigation Plan (October 2008, City of Yelm)
/ Future Demand/Supply Forecast and Groundwater Modeling for Mitigation
Planning (October, 2008, Golder Associates, Inc.)
/ Groundwater Modeling of New Water Right and Transfer Applications
(January, 2008, Golder Associates, Inc.)
/ McAllister Wellfield Model: Comprehensive Pumping Scenario for Cities of
Olympia, Lacey, and Yelm (July 2008, S.S. Papadapolus & Associates, Inc.)
2. The City of Yelm submitted three water right applications (G2-29084, G2-29085,
and G2-29086) to the Washington State Department of Ecology (Ecology) with a
priority date of January 10, 1994. These applications consist of two 3,000
gallons per minute (gpm) municipal use rights and one 1,500 gpm right, for a
total instantaneous limit of 7,500 gpm. Together, the applications request 10,000
acre-feet of water per year for municipal supply. This annual quantity
represented the City's projected long-range potable water demand at the time,
based on the City's then current Comprehensive Plan and Water System Pian.
3. Due to the City of Yeim's exceptional conservation and reclaimed water
programs, the current long-term demand projection for potable water supply is
estimated to be 4,186 acre-feet per year, occurring approximately in the year
2037.
4. The City's existing water rights, after completion of the pending McMonigle
transfer, authorize total annual pumping of 952 acre-feet per year, leaving 3,234
acre feet per year of new water rights needed to serve long-range demands
through 2037.
5. Water demand occurs over time, and Yelm has proposed a phased approach to
developing bath the infrastructure and implementing mitigation measures at the
time new water is actually needed by the City.
Phase 1 would allocate 554 acre-feet per year of water in the SW Yelm area
between 2010 and 2012. The existing downtown and Tahoma Valley Golf and
Country Club wellfields would remain in use.
Phase 2 would allocate an additional 388.34 acre-feet per year of water in the
5W Yelm area and is anticipated between 2013 and 2017. Additionally, all water
rights associated with the downtown wellfield (719.66 acre-feet) would be
transferred to the SW Yeim wellfield from the existing downtown wells.
Phase 3 would allocate an additional 875.39 acre-feet per year of water in the
SW Yelm wellfield and is expected between 2018 and 2024. In addition, all
water rights associated with the Tahoma Valley Golf and Country Club wellfield
(232.61 acre-feet) would be transferred to the SW Yelm wellfield.
Phase 4 would allocate an additional 1,416 acre-feet per year of water in the SW
Yelm wellfield for a total water portfolio for Yelm (both existing and new water
rights) of 4,186 acre-feet per year, all pumped from the SW Yelm wellfield.
Phase 4 is expected between 2025 and 2037.
The following table identifies the amount of water pumped from each wellfield
during each phase.
Downtown Golf Course SW Yelm Totat Water Rights
Phase 1 719,66 232,61 554 1,506.27
Phase 2 0 232,61 1,662 1,894.61
Phase 3 0 0 2,770 2,770
Phase 4 0 0 4,186 4,186
6. Impacts to both the Nisqually River (WRIA 11) and Deschutes River (WRIA 13)
wa#ersheds from additional groundwater withdrawals were investigated using a
numerical groundwater model designed to simulate the response of the surface
water and groundwater system to new pumping at the SW Yelm Wellfield and
changes in pumping at the downtown wellfield and golf course well. The
complex and sophisticated computer model simulates the hydrologic cycle in the
study area and is the most up-to-date and scientifically sound method of
predicting impacts that could result from groundwater withdrawals. The scientists
who built, managed, and run the model orient towards a 'conservative' approach
to modeling, meaning model results tend to over-predict surface water
depletions.
7. The City of Yelm has worked alongside its partners in the McAllister-Yelm Sub-
basin (the Nisqually Indian Tribe and the Cities of Olympia and Lacey) to address
water-related issues and water right applica#ions throughout the entire watershed
planning process. Hydrologic impacts resulting from the cumulative pumping by
all of the Cites have been modeled, and opportunities for joint mitigation are
being discussed and implemented.
8. Predicted impacts to the Nisqually Valley hydrologic area includes changes in
groundwater discharge to Yelm Creek (at the point of discharge to the Nisqually
River). Under Phase 1, the highest annual discharge decreases by up to 0.04
cubic feet per second (cfs), with the maximum depletion occurring in the spring.
Attachment A MDNS (ENV-08-0397-YL) Page 2 of 8
Under Phases 2, 3 and 4, the discharge to the Greek increases compared to the
baseline case by up to 0.27, 0.32 and 0.24 cfs, respectively; in these three
phases; the maximum increases will all occur in late winter and spring. The
maximum summertime increase in Phases 2, 3 and 4 will be 0.23, 0.28 and 023
cfs, respectively. These increases result from the net effect of pumping 4,186
ac-ft/yr from the deep Undifferentiated Teriary Aquifer (TQu) at the new Wellfield,
which involves transferring 952 acre-feet per year pumping from the shallow
Advance Vashon Outwash (Qga) aquifer (downtown-area wells). Yelm Creek is
in relatively closer hydraulic connection to the Qga aquifer.
Including Yelm Creek impacts, there will also be cumulative monthly changes in
groundwater discharge to the Nisqually River at River Mile 4.3 for the four
phases. Under Phase 1, the model predicted that the groundwater discharge will
be up to 0.21 cfs lower than under baseline condition, with the maximum
depletion occurring in August. Under Phases 2 and 3, the total discharge to the
river will increase year-round compared to the baseline; the maximum increases
wiH be 0.29 and 0.25 cfs, respectively, both occurring in spring. The summertime
increases will be up to 0.25 and 0.20 cfs. Under Phase 4, the model predicts that
a decrease in groundwater discharge will occur year-round compared to the
baseline, with a maximum depletion of 028 cfs occurring in September.
However, the cumulative predicted depletions represent less than one percent of
the baseline discharge to the river in all months for Phases 1 and 4.
9. Predicted impacts to the Deschutes Valley hydrologic area includes changes in
groundwater discharge to the entire Deschutes River above Tumwater Falls for
the four phases. Under Phase 1, the groundwater discharge to the river will
decrease by up to 0.14 cfs. Under Phase 2, the depletion will increase to up to
0.38 cfs, then under Phase 3 to 0.71 cfs and under Phase 4 to 1.16 cfs. All
maximum depletions will occur in spring months. Only under Phase 1 will the
depleticns nat exceed one percent of the baseline discharge in any months;
conversely, this threshold will be exceeded in all months under Phase 4.
10. Predicted impacts to the McAllister Valley hydrologic area includes changes in
groundwater discharge to the Upper McAllister Valley hydrology for the four
phases. Under Phase 1, the groundwater discharge to the springs will decrease
by up to 0.13 cfs. Under Phase 2, the depletion will increase to up to 0.37 cfs,
then under Phase 3 to 0.61 cfs and under Phase 4 to 0.92 cfs. All maximum
depletions will occur in summer months {either August or September). Only
under Phase 4 will the depletions exceed one percent of the baseline discharge,
and will do so between June and November {inclusive).
11. Predicted impacts to the Woodland Creek Basin includes changes in
groundwater discharge to the entire Woodland Creek hydrology. This analysis
assumes that the total impact to flow in the creek at Henderson Inlet is the sum
of the individual impacts to all reaches. Under Phase 1, the groundwater
Attachment A MDNS (ENV-08-0397-Y~) Page 3 of 8
discharge to the creek will decrease by 0.01 cfs in all months. Under Phase 2,
the depletion will increase to up to 0.04 cfs, then under Phase 3 to 0.07 c#s and
under Phase 4 to 0.1 cfs. The maximum depletions will occur in the spring for all
phases, though the di#ferences between these flow depletions in any month are
small. The cumula#ive depletions wilt exceed one percent of the baseline
discharge during summer months only in Phases 2, 3, and 4.
12. Increasing production capacity by adding new SW Yelm Wellfield wells and
reducing downtown-area pumping will cause both increases and decreases in
groundwater levels, depending on the location and timing (phase). Three
separate hydrogeologic units were analyzed for these changes:
Under Phase 4, the new pumping is predicted to cause water levels in the
Advance Vashon Outwash (Qga) aquifer in the downtown area to rise by up to 5
feet. This increase will result mostly due to the transfer of the shallow downtown-
area pumping from the City's Wells 1 and 2, and the Nisqually Golf Course to the
deeper aquifer to the southwest of the downtown area. The water level in the
City's two downtown wells typically ranges from 25 to 35 feet bgs. Therefore, the
new water level is unlikely to cause flooding problems in the area. Silver Spring
is believed to discharge from the Qga aquifer and feed the headwaters of the
Silver Creek. The model predicts that the groundwater level near the Spring will
be drawn down by up to 0.25 feet (3 inches) under Phase 4. The City will
continue to evaluate potential impacts to Silver Springs in consultation with the
Squaxin Island Tribe.
The predicted change in groundwater level in the Pre-Vashon Gravel Aquifer
(Opg) will be generally small, reaching a maximum drawdown of no more than 3
feet within the wellfield area. Along-term drawdown of one foot will occur at a
radial distance of up to four miles from the Wellfield. The Nisqually Tribe
operates a hatchery near the Nisqually River at the Kalama Creek Spring
Complex. Although it is difficult to accurately predict the drawdown impacts of
the new Wellfield pumping, the predicted maximum drawdown is less than 0.25
feet.
The pred'€cted depletion of the groundwater discharge to the Nisqually Tribe's
Kalama Creek Spring complex will be up to 0.02 cfs during Phase 1, 0.04 cfs
during Phase 2, 0.06 cfs during Phase 3 and 0.09 cfs during Phase 4. In ali
phases, the highest seasonal depletion will occur in August. Only during the
summer months of Phase 3 and all months of Phase 4 will the predicted
depletions exceed one percent of the baseline discharge. The model predicts
that the groundwater level near the Springs will be drawn down by less than one
foot under Phase 4. The City will continue to evaluate potential impacts to
Kalama Creek Springs Complex in consultation with fhe Nisqually Indian Tribe.
By phase 4, the new wellfield will cause water levels in the Undifferentiated
Tertiary Aquifer (Tqu) to decline by up to 10 feet (near the wellfield). Drawdowns
Attachment A MDNS (ENV-08-0397-YL) Page 4 of 8
of up to one foot will occur at distances of up to five miles from the Wellfield under
Phase 4. The model does not have the capability of predicting the actual
drawdown in each well due to the effects of well inefficiency, and the model
averages the drawdown over the dimension of the model cell (250-ft by 250-ft).
Also, each well will likely behave differently due to local hydrogeologic
differences.
13. To mitigate temporary impacts to the Nisqually River tha# fall below the accuracy
limits of the model, the City is working on an agreement with the Nisqually Tribe
wherein, as part of the mitigation for the Nisqually River, the Tribe has committed
to require the discharge of an additional 10 cfs as a condition for its approval of
any petition by Tacoma Power to the Nisqually River Coordinating Committee
(NRCC) for a reduction in the minimum flow requirement The 10 cfs quanti#y is
double the estimated impact of winter pumping on the Nisqually River by the City
of Olympia's McAllister Wellfield and will also mitigate the relatively small impacts
by the City of Yelm. The additional release of 10 cfs during periods when
Tacoma Power is operating under an adjusted minimum flow regime) serves as
mitigation for impacts of pumping bath the SW Yelm and McAllister Wellfields
under full build-out. It is likely that Ecology minimum flows will not be violated
during these times; however, in the rare instance that they could be, the addition
of 10 cis in the controlled river system will ensure that there is no adverse effect
due to Yelrn pumping.
14. To mitigate impacts to McAllister Springs and McAllister Valley, the City of Yelm
will likely transition into Phase 1 pumping at approximately the same time that
Olympia will be transitioning from the Springs to the McAllister Wellfield. A
portion of the benefits to McAllister Valley hydrology that are realized by the City
of Olympia's transition will be used to offset depletions caused by City of Yelm
pumping. The City of Yelm is agreeable to apportion part of its Yelm Creek
benefits to offset the City of Olympia's Yelm Creek impacts, in exchange for
McAllister Springs offsets, subject to an interlocal agreement. In the long-term
(Phases 2 through 4 of Yelm's water system development), the water savings
associated with the transition of Olympia's source provide an opportunity to offset
Yelm's predicted depletion in the McAllister Complex.
If Yelm's first SW well is developed and utilized prior to Olympia's transfer to the
McAllister Wellfield, a maximum depletion associated with the first SW well is
predicted to be less than one quarter of 1% of the baseline (significantly below
the model accuracy). If this situation occurs, it is temporary until Olympia
transfers some water use to the McAllister Wellfield.
Attachment A MDNS (ENV-OS-0397-YL) Page 5 of 8
15. Mitigation of Yelm Creek impacts will be required only during Phase 1 as the first
SW Wellfield well is brought online. As following phases transfer shallow
downtown pumping to the SW Yelm Wellfield, the impacts to Yelm Creek convert
to benefits.
To offset impacts during Phase 1, the City plans to increase the recharge rate of
reclaimed water at Cochrane Memorial Park. The City currently recharges 56 ac-
ft/yr at the facility, with a uniform year-round rate (equivalent to 0.08 cfs or 35
gpm}. Between 2003 and 2008, the City had excess reclaimed water in all
months, ranging from 0.07 to 0.49 cfs. This excess was primarily delivered to the
Centralia Power Canal, and on occasion, to the Nisqually River.
The City plans to increase reclaimed water recharge at the Cochrane Park facility
in a quantity sufficient to offset Phase 1 impacts to Yelm Creek.
Additionally, the City of Yelm has entered into discussions with the Nisqually
Indian Tribe regarding out-of-kind mitigation of Yelm Creek. This mitigation plan
provides the working agreement between the City of Yelm and the Nisqually
Indian Tribe. The City of Yelm is committed to working with the Tribe on the
following restoration opportunities, including creek channel restoration, creating a
continuous vegetated buffer, installing a stream gage, and removing riprap weirs
at a pipeline crossing.
16. The City proposes to jointly mitigate predicted impacts of pumping on Woodland
Creek and the Tri-lakes Complex by entering into a cooperative cost sharing
agreement with the Cities of Olympia and Lacey to directly mitigate through
groundwater flow replacement using reclaimed water at a ratio of 1.5:1 and to
indirectly mitigate through acquisition of protective properties that serve as
buffers.
The City of Yelm is currently negotiating a cooperative, cost-sharing agreement
with the Cities of Olympia and Lacey to participate in the construction of a
regional reclaimed water infiltration facility that will mitigate impacts from the
Cities' water rights applications. Mitigation will be provided by infiltrating
reclaimed water in the upper reach of Woodland Creek to replace captured
groundwater that provides base flow to the creek.
The infiltration facility is planned to be constructed and operational by 2012. The
model does not predict Phase 1 impacts to Woodland Creek hydrology above
one percent of baseflow. At Phase 2, the impacts are 0.04 cfs and the City will
participate in the regional project.
Attachment A MDNS (ENV-08-0397-Y1.) Page 6 of 8
17. As part of a regional mitigation effort, the Cities of Yelm, Olympia and Lacey
have entered into an agreement to purchase water rights from within the
Deschutes Basin and to use these water rights for mitigation purposes. Acquired
water rights will likely be transferred into state trust. Preliminary data from
Ecology and Westwater Research indicate that that there are a number of
existing water rights meeting appropriate criteria (including location, volume, type
of use, and evidence of recent use). The three Cities plan to purchase and share
mitigation credits for water rights acquired under this agreement.
As part of the agreement, the City of Yelm plans to acquire sufficient water rights
and/or retire domestic wells in the Deschutes Basin to offset the potential
depletions in the upper, middle and lower reaches of the Deschutes River and
Silver Creek and Spring. Yelm proposes to mitigate predicted impacts during
closure periods at a mitigation ratio of 1:1 or 100 percent through the joint
acquisition of water rights with the Cities of Olympia and Lacey. To date, the
three Cities have signed two Interlocal Agreements to formalize this coordinated
effort.
As an additional measure, the City of Yelm is consulting with the Squaxin Island
Indian Tribe to address fisheries habitat concerns in the Deschutes Watershed.
They are currently considering cooperative funding ventures for habitat related
improvements including placement of woody debris, removal of invasive
vegetation, and possible acquisition of riparian conservation easements or land
as buffers to further enhance riparian habitat on the Deschutes River. Much of
this work would be conducted in the upper reaches of the Deschutes and near
Silver Springs and Creek.
18. Pursuant to the provisions of Section 90.03.290 RCW and Chapter 90.44 RCW,
the Washington Department of Ecology issues a water right when water is
available for appropriation for a beneficial use, that the appropriation will not
impair existing rights, and will not be detrimental to the public welfare.
19. The State Environmental Policy Act Rules at Section 197-11-330 (1)(c) allows
the responsible official to consider mitigation measures an agency will implement
as part of the proposal, including any mitigation measures required by
development regulations, comprehensive plans, ar other existing environmental
rules or laws.
20. The mitigation measures of this threshold determination are those proposed by
the City of Yelm to mitigate identified potential adverse impacts. These
measures may be modified or extended by the Washington Department of
Ecology through the placement of additional conditions attached to the issuance
of a new water right in order to ensure that impacts to existing water rights or the
public welfare are mitigated.
Attachment A MDNS (twNV-08-0397-YL) Page 7 of 8
Mitigation Measures
1. Mitigate all impacts to the Nisqually Valley, Deschutes Valley, and McAllister
Valley hydrologic areas as identified by the report Groundwater Modeling of New
Water Right and Transfer Applications (January, 2008, Golder Associates, Inc.)
#hat do not fall below the accuracy limits of the model with a ane-to-one
mitigation ratio (100 percent mitigation) through the phased, adaptive
management approach outlined in the Final Water Rights Mitigation Plan
(October 2008, City of Yelm).
2. Mitigate all impacts to the Woodland Creek hydrologic area as identified by the
report Groundwater Modeling of New Water Right and Transfer Applications
(January, 2008, Golder Associates, Inc.) that do not fall below the accuracy limits
of the model with a one and one-half-to-one mitigation ratio (150 percent
mitigation) through the phased, adaptive management approach outlined in the
Final Water Rights Mitigation Plan (October 2008, City of Yelm).
Attachment A MDNS {ENV-08-0397-YL) Page 8 of 8
EXHIBIT B
May 15, 2009 SEPA Comment setter (w/ attachments)
File No. ENV-08-0397-YL
Ca~c~~~~
~'~~ May 15, 2009
~~'®U~
EN41nONME11TAl IIITOaNEYS
VIA HAND DELIVERY and EMAIL
Mr. Grant Beck
Community Development Director
Community Development Department
City of Yelm
105 Yelm Avenue West
Yelm, WA 98597
RE: Comment on Mitigated Determination of Non-Significance
File Number ENV-08-0397-YL
Dear Mr. Beck:
This letter is intended to provide formal comments regarding the City of Yelm's
Mitigated Determination ofNon-Significance, File Number ENV-08-0397-YL
("MDNS"). The MDNS is issued pursuant to the #oilowing water right applications
No. G2-29084, No. G2-29085, and No. G2-29086 (collectively referred to as the
"Applications"). i request that the City consider these comments and include
these in the City's file and record regarding the City's ac#ion in issuing the MDNS,
These commen#s are provided on behalf of JZ Knight, pursuant to WAC 197-11-
340 and -500, et. seq, As you are aware, JZ Knight owns and operates a Group
A water system, Zebras Aqueous Substance, DOH No. 61131 N, and several
ground water wells just outside the City of Yelm. The wafer system is authorized
to withdraw ground water under wafer right certificate no. 5866, as amended. The
right authorizes the withdrawal of water from six wells in the Thompson
Creek/Nisqually River basin. JZ Knight also holds surface water right no. 7053
from Thompson Creek, which flows through the property. JZ Knigh# has not been
able to exercise this right from the creek as believed to be historically done
because the creek becomes dry earlier in the irrigation season.
SEATTLE OLYMPIA
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Mr. Grant Beck
May 15, 2009
Page 2
The City of Yelm Water Rights Mitigation Plan, was issued in October 2008, and
attaches supporting documents titled Report on Groundwater Modeling of New
Water Right and Transfer Applications Cify of Yelm, Washington ("Modeling
Memo"), dated January 29, 2008, and the Technical Memorandum, Future
Demand/Supply Forecast and Groundwater Modeling for Mitigation Planning
("Technical Memo"), dated October 10, 2008 (collectively, the "Mitigation Plan" or
"Plan").
The threshold determination of the MDNS relies on two proposed "mitigation
measures" identified in the January 2008 Modeling Memo. These are the
mitigation of impacts to the Nisqually Valley, Deschutes Valley, and McAllister
Valley hydrologic areas, and the mitigation of impacts to the Woodland Creek
hydrologic area, which are both described as a "phased, adaptive management
approach" outlined in the Water Rights Mitigation Plan.
Upon review of the MDNS and Mitigation Plan, we request that the City withdraw
the MDNS pursuant to WAC 197-11-340({3) (a). This is based on the following
information and analysis.
The Mitigafion Plan is not final or complete.
The City of Yelm as the lead agency must make its threshold decision based
upon information reasonably sufficient to evaluate the environmental impact.
WAC 197-11-335. The threshold determination is to be made when the Mitigation
Plan, as the supporting documentation for the Applications and MDNS, is final
and complete. See WAC 197-11-310{3).
Yelm's Mitigation Plan is not final or complete. It is still under review by the State
agencies. In fact, Yelm, with the Cities of Olympia and Lacey, and the
Department of Ecology, recently held (on Apri[ 28, 2009) an open house on the
Cities' respective mitigation plans for applications for water rights. In a joint report
with all these entities, including Yelm, the public was invited to provide comments
on the mitigation plans until May 28, 2009. Until this comment period is complete,
the Mitigation Plan has not been accepted as complete for mitigation purposes by
the Department of Ecology. See attached Technical Fact Sheet, Attachment A. It
is our opinion that Ecology will agree the Mitigation Plan is not final for the
purposes of mitigation of the impacts and effects of the Applications. Ecology
must find that the water requested in the Applications will not impair other water
rights, there is available water for the intended purposes, and the Applications are
not detrimental to the public interest. See RCW 90.03.290; 90.44.060.
Mr. Grant Beck
May 15, 2009
Page 3
The MDNS and Mitigation Plan rely on agreements with other entities and
agencies which are not final and remain in "discussion". The MDNS also relies on
the approval by the Department of Health of an updated water system plan which,
based on our information, has not been drafted. Further, the MDNS and
Mitigation Plan rely on Yelm's right to exercise current water rights that have nat
been and may not be approved by the Department of Ecology for transfer to Yelm
and have not been approved as sources of potable supply by the Department of
Health under a water system plan. Both the golf course water right and the
McMonigle water rights referenced in the Plan have these deficiencies as they are
not fully approved by Ecology andlor Health as potable water supply sources for
Yelm. These examples show that the MDNS is based on highly speculative
promises and do not form an acceptable basis for issuing any threshold decision
at this time.
The MDNS fails to even consider aR reauired adverse impacts and provide
adeauate mitigation for these impacts and effects of the Applications.
The law clearly provides that Yelm must consider and make specific
determinations regarding the proposal and its impacts, which is defined as the
effects or consequences of the actions. WAC 197-11-330(2) and (3), -752. In
assessing the significance of an impact, Yelm must consider all direct and indirect
effects, and short and long-term effects. WAC 197-11-060(4)(b) and (c). The
effects to consider also include those resulting from the Applications, including
cumulative impacts over time, and including "growth caused by a proposal" and
the "precedent for future actions". WAC 197-11-060(4)(d) and (e).
The MDNS fails to adequately address the impacts and effects on the
groundwater resource, and the environmental impacts that will result from the
Applications including the cumulative impacts of growth. In turn, the Mitigation
Plan does not address these impacts and effects in violation of SEPA. See WAC
197-11-340, -350, and -768.
It is undisputed that the Mitigation Plan is limited to mitiga#ion proposals for effects
on certain surface waters. See Environmental Checklist, Item 11, page 3. In
regard to other effects such as resulting growth from the Applications, the
Mitigation Plan provides no proposed mitigation of the impacts, and clearly does
not address the effects from the Applications on the growth that will result from
the Applications.
Mr. Grant Beck
May 15, 2009
Page 4
The Miti afion Plan is wholl inade uafe to rovide an environmental assessment
as reauired under SEPA for the Applications.
For the Applications to meet the requirements of SEPA, Yelm acknowledges that
either an environmental impact statement is required or a mitigation plan must be
developed that would address the probable adverse environmental impacts.
Yelm's acknowledgment is based in part on the fact that water is simply not
available for the quantities requested in the Applications. The City of Yelm does
not dispute this conclusion. Rather, the City has sought to address this problem
with the Mitigation Plan. The Plan acknowledges that the Applications will result
in a large amount of withdrawal from the aquifer, affecting the ground water and
the surface waters in both the Nisqually and Deschutes River basins. While these
effects are undisputed, Yelm makes unreasonable if not unconscionable
allegations that the Applications will have no significant adverse environmental
impacts.
A MDNS requires mitigation that avoids or minimizes the impacts from the
proposal such that the lead agency can find that there are no probable significant
environmental impacts. WAC 197-11-340, -766, -768. However, in this case, the
Mitigation Plan concludes that there will be unprecedented detrimental impacts to
the aquifer and surface waters. These findings are even more alarming because
they rely an a baseline that assumes a full change of the McMonigle water right
that might not be approved for the quantities requested. Of particular concern to
JZ Knight are the significant impacts to the aquifers and the ground water flow in
the local area of Yelm's proposed well field.
The Mitigation Plan is unfortunately dismissive of the ground water impacts. See
Technical Memo (at 5.2, page 19) and Modeling Memo (at 4.4.2, page 20). This
is not a surprise based on the Environmental Checklist that states at Item 11,
page 3: "The mitigation plan provides a template for mitigating the short and long
term impacts to in-stream flows attributable to additional groundwater withdrawals
by the City of Yelm."
The Modeling Memo in particular shows changes in ground water levels that are
substantial for the local ground water resource. The Modeling Mema concludes
that there will be a material predicted change of local ground water levels of up to
23 feet:
The future groundwater level in Yelm's downtown Well T will
increase by up to 2 feet in response to Case A, and decrease by up
to ?foot from Case D. Neither case is expected to cause local
groundwater problems in terms of flooding (for Case A) or
excessively low levels in other wells (for Case D).
Mr. Grant Beck
May 15, 2009
Page 5
The predicted changes in water levels in fhe deep aquifer in fhe
planned wellfield area range between 10 and 23 feet for Case A,
and from 6 to 13 feet for Case D. This long-term drawdown is
expected to be manageable in terms of well construction and
operation. The predicted water level changes in fhe City of Rainier
well range between 1.7 and 2.6 feet for Case A, and between 1.3
and 1.9 feet for Case D: The predicted water-level changes in the
Schoepfsr Well range between 0.8 and 1.2 feet for Case A, and
between 0.7 and 1.0 feet for Case D. These long-term drawdowns
are not expected to significantly impact the operation of either well.
Modeling Memo at Section 4.4.2, page 20. These impacts are best illustrated in
the Appendix A Figures attached to the Mitigation Plan.
It is now undisputed that all aquifers are hydraulically connected in this region,
and accordingly the ground water resource that is relied upon by many entities in
the region, including JZ Knight's water system, are likely to be substantially
impacted by Yelm's proposed ground water withdrawals. This assumption is
supported by the Aspect Consulting Memorandum that analyzes the Modeling
Memo that Yelm provides in support of its Mitigation Plan. See Aspect Consulting
Memorandum.' Aspect Consulting finds that the City of Yelm's wells are
hydraulically up-gradient of JZ Knight's wells and are completed in the same
aquifer as JZ Knight's wells, and further concludes:
Based on our understanding of hydrogeological conditions, the City
of Yelm's withdrawal of potable wafer from its existing wells and/or
the withdrawal of groundwaterfrom a well on the Tahoma Vattey
Golf Course location are expected to adversely impact JZ Knights
wells and adversely impact fhe insfream flow of Thompson Creek.
Aspect Consulting Memorandum at page 5.
The Mitigation Plan does not address these local ground water impacts. The
Mitigation Plan clearly documents that the ground water aquifers to be accessed
by the City's proposed well field are hydraulically connected to the other aquifers
as well as the surface waters. The protection of these ground water rights is not
only legally required but, as a matter of policy, these water rights are primarily for
year-round drinking water uses that cannot be compromised. Unless and until
Yelm submits a Mitigation Plan to address the impacts to both ground and surface
water, the SEPA process is not complete and Yelm must withdraw the MDNS.
The Aspect Consulting Memorandum is attached to a letter to Tom Loranger dated April 17,
2009. This letter is attached as Attachment B.
Mr. Grant Beck
May 15, 2009
Page 6
In addition to the lack of analysis on impacts on local ground water rights, there is
an inadequate analysis of impacts on small tributaries to the Nisqually River.
There are water rights on these tributaries that must be identified and analyzed.
Additional impacts should not be allowed on the tributaries such as Thompson
Creek and on the main stem Nisqually River, both of which have minimum
instream flow requirements under the local regulations, provided in WAC 173-511.
It may well be that the deficiencies of the MDNS are partially due to the gross
inaccuracies and inadequacies of the Environmental Checklist.
Finally, even if the Applications and documents are complete, which we dispute,
Yelm may not have timely made the threshold determination under WAC 197-11-
310(3).
JZ Knight has been very concerned during the past two years about the City of
Yelm's failure to comply with applicable legal requirements related to water
planning and water availability determinations for proposed residential and
commercial development. In this regard, she has recently provided comments to
Ecology on the Mitigation Plan and on the City's MDNS. I am attaching those and
ask that you please alsa make these part of your file and record in the matter.
Sse letter to Tom Loranger dated April 17, 2009, Attachment B, and let#er to Jay
Manning dated May 13, 2009, Attachment C.
Conclusion
The MDNS purpor#s to be a determination that the proposed action (approval of
3,233.73 acre-feet of new water rights and transfer of 952.57 acre-feet per year
for municipal purposes in four phases between 2010 and 2037) will not have a
probable significant adverse impact on the environment. This determination is not
in compliance with SEPA.
The City's proposed MDNS fails to address these major environmental impacts
and is based on the City's significantly flawed water mitigation plans that have yet
to be reviewed and approved by Ecology. In light of these substantial
deficiencies, and in accordance with the provisions of WAC 197-11-340(3)(a)(ii)
and (iii), the City of Yelm should immediately withdraw the proposed MDNS
issued on May 1, 2009.
In light of the significant environmental impacts to ground water and surface
waters that have been identified by the City and my client but have not been
addressed in the City's mitigation plan, additional mitigation measures must be
provided for the Applications or an EIS be initiated for the City's water rights
Mr. Grant Beck
May 15, 2009
Page 7
applications befiore any further actions are taken on the project as indicated in
WAC 197-11-330,
Sincerely,
Thomas McDonald
DirecE Line: (360) 786-5039
Email: tmcdonald@cascadialaw.com
Office: Olympia
TM:en
Attachments:
A - Technical Fact Sheet (The Cities of Lacey, Oiympia, and Yelm Water Right
Mitigation Plans)
B - Letter to Tom Loranger dated April 17, 2009 (with attachment, Aspect
Consulting Memorandum)
C - Letter to Jay Manning dated May 13, 2009
cc: Via U.S. Mai(, w/atfachmerrts:
Jerrod Davis, Deputy Director, Fie6d Operations, Department ofi Health
Bonnie Waybright, P.E., Assistant Regional Manager, SW Regional Office
of Drinking Water
Regina Grimm, P.E., Regional Engineer,
Thomas Loranger, Manager, Water Resources, Southwest Regional Office
Phil Crane, Water Resources, Ecology Southwest Regiona! Office
ATTACHMENT A
- The Cities of Lacey, Olympia, and helm '"~~3"~
u~ ~ ~ ~ l~
a `~
~' Water Right Mitiga#ion Flans ~ ~ ~ , ~
a' `^d1''^ For impacts to Long Lake, Pattison Lake,
I °``"` ~~ Hicks Lake and Woodland Creek -- --~---
~ ~.~
ECOLOGY TECHNICAL FACT SHEET - ~ - y_,...~
z ,,..~~,,.,, ~.o °- --s~"~~ ~%
The Cities of Lacey, Olympia, and Yelm are addressing the needs of our communities in an innovative way...they
are addressing them together.
Each city is in need of new water rights;
Each city has asked the Washington State Department of Ecology for new water rights;
Each city has examined the impacts of withdrawing new water;
...and the cities have come together to develop a proposal to mitigate for the predicted impacts.
Frequently Asked Questions
What are the water needs of our community?
Along with the rest of the country, the cities of Lacey, Olympia, and Yelm are projected to experience population
growth. As our communities grow, the need for water also grows. We all need clean water to drink and water
available to wash our clothes and dishes.
The cities are looking ahead to the lives of our children and grandchildren, and have applied far water rights to
meet the water demands over the next 40-50 years.
How much water is being requested by Lacey, Olympia, and Yeim?
The City of Lacey is requesting to pump an additiona13,000 gallons per minute, or 7,392 acre-feet per year, from
six wells. Four of these wells will be located in the Hawks Prairie area north of Interstate 5. The other two wells
are along Marvin Road east of Long Lake. These two wells already pump into the Lacey water system but have
additional capacity beyond what is currently permitted with
water rights.
1 acre-foof is
roughly equal fo ~~,.~ ~~~~~~ The City of Olympia is requesting to transfer the city's
the amount of existing wa#er rights from McAllister Springs and Abbat
Water sufficient to Springs to their McAlister wellfield located southeast of
cover a football McAllister Springs. Their applications are for transferring a
field in 1 foot of ?,.. total of about 18,100 gallons per minute and about 29,200
water ~~, a .~ acre-feet per year.
The City of Yelm is requesting to pump a total of 5,000
gallons per minute, or 4,186 acre-feet per year, from a planned SW Yelm Wellfeld. Yelm currently supplies the
water system #rom downtown-area wells, but the long-term goal is for the entire water supply to be provided from
a new wellfield.
What are the predicted impacts to the lakes and Woodland Creek?
The highest predicted combined impacts include cone-inch draw down in each of Long, Hicks, and Pattison
Lakes which would occur over approximately the next 30 years. This is the time it would take to make full use of
the water That is requested in the wafer rights applications.
Over the same 30-year time period, the highest predicted cumulative impact to Woodland Creek is a 0.26 cubic-
feet per second {117 gallons per minute} flow reduction during winter months. This flow reduction to Woadiand
Creek is roughly equal to the flow that you might see if you turned on 15 garden hoses at the same time.
How were the impacts determined?
The factors affecting the flow of groundwater in the area, such as, depth and location of the wells, the amount of
water proposed to be pumped, and seasonal variations in groundwater levels, were entered into a computer
model that was then used to predict how additional groundwater pumping would affect the surface water in the
Woodland Creek basin. The cities of Lacey, Olympia and Yelm worked together to look at the combined impacts
from full use of all of their water right applications. The results were summarized to show which months of the
year the highest predicted impacts could occur.
How do the cities propose to mitigate impacts in the Woodland Creek basin?
The cities added up the maximum predicted impacts to the lakes and Woodland Creek. To assure that this impact
is completely mitigated, the cities are proposing to allow 150% of this amount to seep into the creek through the
infiltration ponds, which will improve the flow in Woodland Creek during the summer months.
The water will be infiltrated in phases over the next 30 years. As more water is used by the cities, the amount of
water infiltrated into the groundwater is increased. The maximum amount currently proposed to be infiltrated into
the ground near Woodland Creek is 788 gallons per minute, or 1.1 million gallons per day.
How will Woodland Creek be enhanced?
The health of the Woodland Creek basin relies heavily on its ability to support salmon runs by providing plenty of
cool, clean water in the creek. Consequently, the cities have proposed to focus all plans for offsetting the impacts
to the basin (which includes impacts to the lakes and the creek) on Woodland Creek during the summer low flow
period. This is intended to increase flows in Woodland Creek during summer months.
The plans to enhance flows in Woodland Creek include taking reclaimed water and directing it to a site near
Woodland Creek Community Park. A series of ponds will be constructed that will allow the clean, reclaimed water
to naturally soak back into the ground, or "infiltrate" into the groundwater. Once here, the infiltrated water will
naturally travel with the groundwater to Woodland Creek. This will improve the flows in Woodland Creek from this
point to the mouth of the creek.
The ponds will also attract wildlife and provide recreational opportunities such as a walking trail, benches, and
educational signs which will all be apen to the public fo enjoy.
Comments?
The three mitigation plans submitted by Lacey, Olympia, and Yelm are currently under review by the department
of Ecolagy. According to the Department of Ecology's water rights public involvement process, this opportunity is
a special case opportunity for you to learn about what the cities of Lacey, Olympia, and Yelm are proposing that
may affect some areas in the Woodland Creek basin. In addition to this opportunity, there will be two farmal
comment periods before any decisions regarding these water rights or mitigation plans are made final.
If you would like to provide comment on the City of Lacey's Comprehensive Mitigation Plan at this time, you can
attend a public Open House:
Tuesday, April 28, 2009 - be#ween 6;30-8:30pm
Lacey Community Center (at Woodland Creek Community Park)
6729 Pacific Avenue S.E., Lacey, WA 98503
In addition, the Department of Ecology will also accept public comments for 30 days following the Open House, or
until May 28, 2009, Comments should be mailed to:
Michael Gallagher
Department of Ecology's Water Resources Program
SW Regional Office
PO Box 47775
Olympia, WA 98504
Email will also be accepted if received by May 28, 2009 at: MGAL461 na ecv.wa.oov
ATTACHMENT B
April 17, 2009
Tom Loranger, Manager
Water Resources Program
~~$~~~~~ Southwest Regional Office
Department of;=cology
~~~ 300 Desmond Drive
~~~u~ Lacey, WA 98503
uwinourrrxrn~nrronxers RE: Comment and protest re City of Yelm water right application nos
:
.
G2-29084 -Priarity Date January 10, 1994
G2-29085 -Priarity Dafe January 10, 1994
G2-29086 -Priority Date January 10, 1994
Dear Mr. Loranger:
This letter is sent to provide comments regarding the above-referenced water
right applications. I ask that you please consider these comments in processing
the applications and make this letter part of the Department's file and record in
this matter. I have spoken with Mike Gallagher about the opportunity to comment,
and he agreed that a written letter could be provided for the purpose of assisting
your office in analyzing and processing these wafer right applications. I also
request that the Department notify me of any action taken by Ecology on these
applications.
I am providing these comments on behalf of JZ Knight. JZ Knight owns and
operates a Group A water system, Zebras Aqueous Substance, DOH No.
61131 N, just outside the City of Yelm. The water system has authorized water
right certificate no. 5866, as amended. The right authorizes the withdrawal of
water from six wells in the Thompson Creek/Nisqually River basin. JZ Knight also
holds surface water right no. 7053 from Thompson Creek, which flows through the
property. JZ Knight has not been able fo exercise this right from the creek as
believed to be historically done because the creek becomes dry earlier in the
irrigation season. For your review, I am attaching a memorandum that was
completed by Aspect Consulting regarding impacts caused by the most recent
water right transfers.t
' The Aspect Consulting Memorandum was drafted for the appeal by JZ Knight of the City of
Ye(m's approval of several subdivision plats. The Superior Court relied an this Memorandum to
find that JZ Knight had standing to challenge Yelm's decisions. J Z Knight v. Cify of Yelm, et al.,
Thurston County Superior Court Cause Na. 08-2-00489-fi; Court of Appeals No. 38581-3-I1. If you
would like to review any of these court documents, I will provide copies to you. As you know,
ecology filed a brief in this appeal as AmfCUS Curiae.
SEARLE OLYMPIA
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Cascadia Law Group PLLC Olympia, VYA 96501
(2QG) 292-6300 voice (3GD) 7A6-5057 voice
wwtiv.cascadialaw.tom (ZOG1292-63Dllaz (3GDI7AG-1A351az
Tom Loranger
April 17, 2009
Page 2
As you may know, several studies have been completed regarding these
applications. The studies, which we are aware and we have obtained copies,
show that water is simply not available for the quantity of water requested in the
wafer right applications, The Ci#y of Yelm does not dispute this conclusion.
Rather, the City has sought to address this problem with a mitigation plan that the
City hopes will address the impacts and impairment that undoubtedly will be
caused by the large amount of withdrawal from the aquifer, affecting the ground
water and the surface waters in both the tJisqually and beschutes Wf~lAs.
On behalf of Yelm, Golder and Associates issued the Report on Groundwater
Modeling of New Water Right and TransferAoplications City of Yelm, Washington
("Mode[ing Memo"), dated January 29, 2008, and the Technical Memorandum,
Future Demand/Supr~ly Forecast and Gro~rndwafer 1Vlodelinp for Mitigation
Planning ("Technical Memo"), dated October 10, 2008{collectively, the "Golder
Reports"). These were included as attachments and in support of the City of
Yelm Water Right Mitigation Plan {"Mitigation Plan"), dated October 2008.
The Golder Reports support the conclusion that there will be unprecedented
detrimental impacts to the aquifer and surface waters. These findings are even
more alarming because they rely on a baseline that assumes a full change of the
McMonigle water right that might not be approved for the quantities requested. Of
particular concern to JZ Knight are the significant impacts to the aquifers and the
ground water flow in the local area of Yelm's proposed well field.
The Golder Reports and the Mitigation Plan are unfortunately dismissive of the
ground water impacts. See Technical Memo (at 5.2, page 19) and Modeling
Merr~o {at 4.4.2, page 20). The Modeling Memo in particular shows changes in
ground water levels that are substantial for the local ground water resource. The
Modeling Memo concludes that there will be a material predicted change of local
ground water levels of up to 23 feet:
The future groundwater level in Yelm's downtown Well 1 will
increase by up fo 2 feet in response to Case A, and decrease by up
to 1 font from Case D. Neither case is expected to cause local
groundwater problems in terms of flooding (for Gase A) or
excessively low levels in other wells (for Case D).
The predicted changes in water levels in the deep aquifer in the
planned wellfietd area range between 10 and 23 feet for Case A,
and from S to 13 feet for Case D. This long-term drawdown is
expected to be manageable in terms of well construction and
operation. The predicted water level changes in the City of Rainier
well range between 1.7 and 2.6 feet for Case A, and between 1.3
Tom Loranger
April 17, 2009
Page 3
and 4.9 feel for Case D. The predicted water-level changes in the
Schoepfer Well range between 0.8 and 1.2 feet for Case A, and
between 0.7 and 7.0 feet for Case D. These long-term drawdowns
are not expected to signifioanfly impact the operation of either well.
Modeling Mema at Section 4.4.2, page 20. These impacts are best illustrated in
the Appendix A Figures attached to the Mitigation Plan.
We believe you will find that the analysis provided by Yelm is wholly inadequate to
determine and address the localized impacts to wa#er rights, such as JZ Knight's
water rights, in the immediate area of the City of Yelm. If, as the reports show,
the City of rainier well is to see a decline of 2.6 feet, the webs supporting JZ
Knight's water system wells will clearly see a significant decline if ynu only
consider the relative distance from the City of Yelm's proposed well field.
It is now undisputed that all aquifers are hydraulically connected in #his region,
and accordingly JZ Knight's water rights and water system are likely to be
substantially impacted by Yelm's prnposed ground wafer withdrawals. This is
supported by the Aspect Consulting Memorandum that analyzed Golder's
Modeling Memo, by several of Ecology's recent approvals of Yelm's applications
to change water rights, and by references in Golder's materials. Aspect
Consulting finds that the City of Yelm's wells are hydraulically up-gradient of JZ
Knight's wells and are completed in the same aquifer system as JZ KnighYs wells,
and further concludes:
Based on our understanding of hydrogeologicai conditions, the Cify
of Yelm's withdrawal of potable water from ifs existing wells and/or
the withdrawaiafgroundwaterfrom a well on the Tahoma Valley
Golf Course location are expected to adversely impact JZ Knight's
wells and adversely impact the instream flaw of Thompson Creek.
Aspect Consulting Memorandum at page 5.
It is imperative that the City of Yelm and Ecology comply with the legal
requirement to determine the level of any of these local impacts on existing water
rights, including the permit exempt domestic welts, prior to any determination that
would allow Yelm to withdraw water under these applications. Ecology's review of
JZ Knight's amendment to water right certificate no. 5866 already identified many
ground wafer rights in the area, and this same process must be done with Yelm's
applications.
The Mitigation Plan does not address these local ground water impacts. We
recognize, as Mike Gallagher stated, that the intent of the Mitigation Plan is to
Tam Loranger
April 17, 2009
Page 4
only address the impacts on surface water. Ecology cannot, however, rely solely
on a surface water mitigation plan. Ecology must either deny fhe applications or
also request mitigation for any impairment of ground wa#er rights because, as
mentioned above, fhe reports clearly document that the ground water aquifers to
be accessed by the City's proposed well field are hydraulically connected to the
other aquifers as well as the surface waters. The protection of these ground
water rights is nat only legally required but, as a matter of policy, these water
rights are primarily for year-round drinking water uses that cannot be
compromised. Unless and until Yelm submits a mitigation plan to Ecology to
address the impacts to bath ground and surface water, these applications cannot
be properly processed; and a mitigation plan for ground water impacts cannot be
properly developed unless and until the impacts to the aquifers and local ground
wafer rights are known, which the current reports from the City fail to adequately
analyze.
As wifh the lack of analysis on impacts on local ground water rights, there is an
inadequate analysis of small tributaries to the Nisqually River. There are water
rights on these tributaries that must be identified and analyzed. As stated above,
JZ Knight holds a water right on Thompson Creek. This creek has already seen
depleted flows over the years, likely from focal development. In this regard,
Ecology can not allow additional impacts on Thompson Creek and on the main
stem Nisqually River, both of which have minimum instream flow requirements
under the local regulations, provided in WAC 173-511.
On behalf of JZ Knight, I appreciate the opportunity to comment nn these
applications. Please do not consider this letter as final comments on the
adequacy of the City's applications and, in particular, the City's failure to properly
address the ground and surface water impacts and mitigation. We will be
supplementing these comments as necessary.
Sincerely,
Thomas McDonald
Direct Line: (360) 786-5039
Email: tmcdonald@cascadialaw.com
Once: Olympia
TM:en
Enclosure
~,
' " iASpCC~consu[ting
earth+water
MEMORANDUM
July 3, 2008
To: JZ Knight
cc: Keith Moxon, GordonDetr LLA
Tom McDonald, Cascadia Law Groap
From; Tyson D. Carlson, LHG
Senior Project Ifiydrogeoiogist
Erick W, Miller, LHG
Senior Associate 1-Iydrogeologist
Re: ,TZKnightHydrogeologicAssessment
Yelm Prairie Area, Washington
Project No.; 080130-001-02
'i-o3 -o$
The City of Ye[rn (City) has recently approved five subdivisions totaling 568 units of
residential development. These subdivisions are the subject of an appeal under the Land Use
Petition Act ("LUPA") in Thurston County Superior Court, The City of Yelm has stated that
it is pursuing new groundwater rights to supply potable water to these and other development
projects in the City of Yelm. The proposed subdivisiens are located approximately 1,300 feet
south ofthe JZ Knight property (higure 1). This memorandum addresses the impact of
additional groundwater withdrawals from City wells to serve these fve subdivisions. In
particular, the impact considered is the impact to groundwater and surface water for which JZ'
Knight has water rights approved by the Washington Department of Ecology. This impact is
determined by evaluating the hydraulic connection between the City of Yclm's wells (the
source of groundwater to supply the five proposed subdivisions) and the groundwater and
surface water resources for which JZ Knight has water rights.
JZ Knight's property is Eocated on the western side of the Yelm Prairie, approximately 1.2
miles from downtown Yelm (intersection of SR 510 end SR 507), as illustrated on Figure t.
Six water supply wails are located on the JZ Knight property, JZ Knight has surface water
rights to Thompson Creek, a tributary of the Nisqually River. Thompson Creek traverses the
Knight property from south to north, The 558 residential units proposed in the five
subdivisions approved by the City of Yelm weuld require 191 acre-feet per year {afy) of
additional potable water, based on the City's Comprehensive Plan standard of 300 gallons per
day per connection "for planning and concurrcncy purposes" (City of Yelm, Comprehensive
Plan, p. V-3, 2006).
information on the future water supply alternatives being considered by the City of Yelm is
documented in several reports, including a January 29, 2008 report entitled "Groundwater
Modeling ofNew Water Rigitt and Transfer Applications" prepared by Golder Associates.
179 Matlrone Lane Morih Balnhddge Island, WA 98110 Tel: (2D6) 76D-9370 >=ax; (2061 760.9438 www.aspedconsulling.com
a Ilmlled lia6i7ifyeompany
MEMORANDUM
July 3, 2008 Project No.: 080130-001-02
That report quantifies the impaats of water supply alternatives on local groundwater
elevations and regional surface water features. Additional information regarding future water
resource, geological, and hydrogeoIogical issues is contained fn the Draft Environmental
Impact Statement ("DEIS") (City of Yelm, 2008) completed for the Thurston Highlands
Master Planned Community. Thurston Highlands is a proposed development nn
approximately 1,280 acres located in the southwest comer of the City of Yelm Urban Growth
Area ("UGA") (see Figure 1).
Based an these documents and other references cited in this technical memorandum, we have
developed an understanding of the City's strategies far developing water supply alternatives
to meet future demand. These strategies all assume that the City will face a significant
increase in water demand and that the City will be required to acquire substantial new
supplies of water to serve this increased demand. The proposed 568 units of residential
develapment is part of the significant increase in water demand that the City will have to
serve. The City is actively considering the acquisition of new water rights for the SW well-
field within the Thurston Highlands Master Planned Community that would tnta13,037.88
afy. However, there is no evidence that these water rights will be available in time to serve
the five proposed subdivisions. Therefore, this technical memo evaluates the impact of
serving the five proposed subdivisions (191 afy) using the City's existing wells, including
any additional wells located on the Tahoma Valley Golf and Cotmtry Cluh that may be
available pursuant to a recent water right approval of 77 afy.
8ackgrotand
The following section presents our understanding of the regional hydrogcology based on the
review of the background materials cited in this technical memorandum. This discussion is
supported by the cross section presented in Figure 2, The cross section location is presented
on Figure 1.
Regional Wydrogeology
The hydrogeology of the Yelm Prairie upland is defined by four major water bearing
stratigraphic units. The Vashon Drift, with its characferistic large thicknesses of stratifeed
sand and gravel, gives rise to the uppermost aquifer in the recessiw7al ouhvash (Qvr)
deposits, The Qvr aquifer supports numerous shallow water table lakes and wetlands, and
contributes perennial base flow to creeks and rivers. End moraine deposits of the recessional
outwash are included with the Qvr unit. Below Qvr, low permeable Vashon till (Qv!) often
separates the upper recessional and the underlying advance outwash aquifers, The advance
nunvas/r (Qva) serves as a significanC source of potable water for some municipal and exempt
water supply wells. The Qva i often hydraulically confined by the overlying low-
permeability Qvt. Few water supply wells are completed in the Qvr due to its limited
thickness and the susceptibility to water quality problems. However, the Qva is a significant
source of potable water in Thurston County. The City ofYelm's three existing wells are
Incated in the Qva unit.
I3elow the Vashon Drift sequence are the clay and silts of the interglacial Kitsap formation.
This unit typically acts as a regional aquitard, separating the shallow aquifers from the more
Page 2
Jaly 3, 2008
MEMORANDUM
Project No.. O80I30-001-02
regionally extensive deeper aquifers. Prom our review of well logs, it appears that the Kitsap
Formation is thin or absent throughout much of the area of the City's existing wells and the
wells on the JZ Knight properly.
Underlying the Vashon Drift in the area of the City's existing wells and the tvetls on the JZ
Knight property are deposits from the "penultinmte"glaeintinn (QeJ, or more regionally
identified as the Salmon Springs Drift, which is present throughout most ofthe region. The
Qe aquifer is typically 15 to 70 feet thick, but has been observed to be in excess of 200 feet
thick. The coarse-grained layers within the Qc are a heavily utilized water bearing unit. JZ
Knight's wells are compacted within the Qva or Qc units.
The deepest known major water bearing unit in this area is the undifferentiated and
unconsolidated Quaternary and Tertiary sedimentary units (QrdTQrr). Although highly
heterogeneous, several different water bearing layers have been identified. The proposed SW
weilfield described in the City's 2008 Golder report and the DEIS for Thurston Highlands is
proposed to be developed in the Qu/TQu unit. Few wells penetrate the entire thickness of
these unconsolidated deposits, so information on thickness or extent of deeper regional water
bearing zones is limited.
Groundwater Flow
In the shallow Vashon aquifers (Qvr and Qva), groundwater flow directions generally
correspond to surface topography, with groundwater divides located near ridgelines, and flow
tending toward local saline or fresh water (e.g., upper Thompson Creek, Yelm Creek, and
adjacent reaches of the Nisqually River) discharge boundaries. Drost, et al. (I999) mapped
local groundwater gradients in the Qva as being north to northwest toward the Nisqually
River (Figure 3).
Groundwater flow in the intermediate Qc aquifer exhibits similar flow patterns as Ehc
overlying Vashon aquifers, but the effect of local surface water drainages is muted. Drast, et
a1. (I999) concIvded that deeper groundwater discharges principally to regianal discharge
features like the lower reaches of the Nisqually/McAllister River system and Puget Sound.
However, similar to the Vashon aquifers, groundwater divides in the Qc aquifer are ncai•
topographic ridgelines, with flow directions toward the regional discharge features described
above. An analogous flow pattern is observed in the deeper Qu aquifer. Locally, the
groundwater flow in the Qc aquifer is in a northwesterly direction (Figure 4).
The aquifers are recharged by precipitation, streamflow losses, and vertical leakage from
shallow units into deeper units. Because of this vertical leakage, Ecology considers surface
water to be hydraulically connected and constitute the same source of public groundwater
(THEIR 07-08).
Thompson Creek
The headwaters of Thompson Creek begin south of the location of the five proposed
subdivisions and south of the Tahoma Valley Golf and Country Club. Thompson Creek then
drains across the western edge of the Yelm Prairie, through the JZ Knight property, and north
Page 3
M~M~RANDUM
July 3, 2008 Project No.: 080130-001-02
to the Nisqually River. The upper reaches of Thompson Creek are supported by shallow
groundwater discharging to the creek. This area is also bast to numerous delineated wetlands.
Flow is intermittent between the wetland complexes of the upper reaches and Tahoma Terra
Bridge with flow typically occurring from October through June. Highest baseftows and
groundwater discharge to the creek occur in midwinter to early spring. Monitoring during
winter 2008 approximately 100 feet downstream from the Tahoma Terra Bridge indicates a
baseflaw condition of about ].5 to 2 cubic feet per second (cfs) (Brown and Caldwell, 2008,
p. s).
Downstream of 93rd Avenue SE, the creek loses water most of the year as it traverses the
more pemceable outwash deposits (Qvr). This "losing stream" characteristic means that
Thompson Creek recharges the underlying groundwater, but when there is not enough flow in
Thompson Creek (due to various causes including withdrawal of groundwater from existing
City wells), then less water is available for recharging the aquifer. The groundwater-surface
water interaction is described in the DBIS for the Thurston Highlands project (Brown and
Caldwell, 2008). Thompson Creek is a "losing" stream where it traverses the JZ Knight
property. This leakage is a source of recharge to the Qva/Qc aquifer where the JZ KnighPs
wells are completed. Rongey(Associates (2001) estimated a flow loss from that portion of
Thompson Creek between the south and north boundaries of the JZ Knight property as a flow
lass to the underlying aquifer at a rate of0.31 cfs in January 2001.
The Washington Department of Ecology has recognized the direct continuity between the
upper reaches of Thompson Creek and the Qva aquifer. This hydraulic continuity was
described in the Report of Examination transferring the Tahoma Valley Golf Course water
right to the City of Yelm (THUR 07-08).
According to Golder's report concerning the development of the S W wellfield, Alternative D,
which would concentrate the City's water rights into the City of Yehn's downtown wells and
a new well at the Tahoma Valley Go[fCourse, is predicted to decrease Yelm Creek surface
water flows by 0.28 cfs. Similar analysis was not available for the impacts to Thompson
Creek under this alternative, but in our opinion similar impacts to Thompson Creek (i.e.,
decrease of surface water flows) would be expected. Moreover, the Golder study predicts
water levels in the Yelm area will decline up to 1-foot as a result of increased pumping. A
water level decline of 1-foot will extend the dry season for Thompson Creek and diminish the
wetted reaches during periods of flow.
Minimum lnstream Flows
Washington Administrative Code (WAC) Chapter 173-511 eut[ines an instream resources
protection program and specifies minimum instream flows for the Nisqually River watershed.
The City's wellfields and JZ Knight's wells are located in this watershed.
The Bypass and Middle Reaches of the mainstem Nisqually River are closed to further
appropriatian from June I to October 15. The JZ Knight property is located adjacent to the
Bypass Reach and Diversion Channel. Instreatn flow regulations apply to Thompson Creek,
which has an established instream law flow limit of 1,0 cfs.
Page 4
MEMORANDUM
July 3, 2008 Project No.: 080130-OOi-02
The purpose of instream flow limits is to protect surface water bodies such as Thompson
Creek. JZ Knight has surface water rights to Thompson Creek.
JZ Knight Property and Water Rights
There are six wells currently located on the JZ KnighE property, which are permitted under
Certificate No. 5866 for an instantaneous withdrawal rate (Qi) of ] 60 gallons per minute
(gpm) and a cumulative annual volume (Qa) of 26.02 afy for multiple domestic supply and
9.15 afy for irrigation of 5 acres. Wells are located throughout the property, each with its own
distribution system. Wall i is currently authorized as a Group A water supply, while Wells 2
through 5 are used for domestic use, fire flow, and irrigation. Well b is the original point of
withdrawal for Certificate 5866. The locations ofthe wells are illustrated on Figure 1 and in
cross section on Figure 2.
According to the Amended Report of Examination for Change for Certificate 5866 and the
geologic interpretation provided by Drost, et al. (1999), Ecology determined that We[Is 1
through 5 are completed in lower portions of the Qva or the upper portions of the Qc
(Ecology, 2007).
JZK owns a surface water right from Thompson Creek that traverses her property. Water
Right Certificate No. 7053. The right is for 0.3 cfs which is equivalent to approximately 150
gpm, and 90 afy. This water right has a priority date of April 19, 1950.
Impact Analysis
Based on our understanding of hydrogeological conditions, the City of Yelm's withdrawal of
potable water from its existing wells and/or the withdrawal of groundwater from a well on
the Tahoma Valley Golf Course location are expected to adversely impact JZ Knight's wells
and adversely impact dte instream flaw of Thompson Creek.
The City of Yelm's doevntown wells lie hydraulically upgzadient of JZ Knight's wells and are
completed in the same aquifer system as the six JZ Knight's wells. Any additional ground-
waterwithdrawn from the City wells is expected to adversely affect JZ Knight's ability to
withdraw water from Thompson Creek and reduce the recharge flow ("leakage") from
Thompson Creek to the aquifer. This recharge flow helps maintain aquifer levels and water
levels in the JZ Knight wells.
Increased pumping from the City's dQWnCOWn wells is expected to adversely impact flows in
the upper reaches of Thompson Creek. Ditninished flows in any section of Thompson Creek
upgzadient of the JZ Knight property will lead to diminished flow in Thompson Creek on the
JZ Knight property and will also result in reduced recharge to the aquifer at the JZ Knight
property. Gaging measurements by Rongey/Associates (2001) indicate that these stream
losses are an important source of recharge to the aquifers beneath the JZ Knight property.
In addition to increased pumping in the Ciry wells, Thompson Creek is expected to be further
adversely impacted on the JZ Knight property by the establishment of an additional point of
withdrawal on the Tahoma Valley Golf Course in the shallow Qva aquifer. This additional
point of withdrawal would occur in connection with the proposed transfer of the McMonigle
Page 5
MEMORANDUM
July 3, 2008 Project Na.: 080130-00]-02
water right (up to 172.96 afy) to that location and would be in addition to the pumping of the
existing Tahoma Valley Golf and Country Club water right (up to 77 afy) recently transferred
to the City. The existing McMonigle well is located approximatoly 2 miles from the City
wells upgradient in the Yelm Creek drainage, while the Golf Course well is about 2,900 feet
from Thomson Creek and 1,300 feet from wetlands adjacenC to Thompson Creek. Transfer of
this additional pumping closer to Thompson Creek wil! have an increased adverse impact on
Thompson Creek flows. Thompson Creek flows would be expected to diminish with transfer
of the McMonigle water right (172.96 afy) and the correspondiug increase in groundwater
pumping from Chc Golf Course wells.
Impacts to shallow aquifer levels and strcamflows with increased withdrawals in the City's
downtown and Golf Course wells are indicated by groundwater modeling done by Golder
Associates (2008). The groundwater model indicates a decline in shallow aquifer water levels
of up to 1-foot in the Yelm area, A 1-foot decline in water levels would adversely impact
flows, particularly in Thompson Creek, where groundwater levels are already below the base
of the stream during much of the year. Although Golder Associates (2008) did not quantify
specific impacts to Thompson Creek, they did model results for Yelm Creek and indicated a
0.28 cfs decline in flaws. Based on the Golder model and the similar hydrologic setting for
Yelm and Thompson Creeks, declining flows are also expected to occur in Thompson Creek.
The direct adverse impact of additional groundwater withdrawal from City wells to that
portion of Thompson Creek within the JZ Knight property will be: (I) the number of days
that Thompson Creek meets instream flow limits is expected to be reduced, and (2) the extent
of the dry reach of Thompson Creek on the JZ Knight property would be expected to
increase. Both of these impacts are adverse to the ability ofJZ Knight to use her water rights.
References
Brown and Caldwell, 2008, Thurston Highlands DEIS Surface Water Technical Report, May
13, 2008.
City ofYelm, 2006, Comprehensive Plan and Joint Plan with Thurston County, p. V-3.
City of Yelm, 2008, Thurston Highlands, Master Planned Community, Draft Environmental
Impact Statement. June 2008.
Drost, B.W., Tumey, G.L,., Dion, N.P., and Jones, M.A, 1999, Conceptual Model and
Numerical Simulation of the Ground-Water Flow System in the Unconsolidated
Sediments of Thurston County, Washington. U.S. Geological Survey Water
Resources Investigation Report 99-4165, 1999.
Golder Associafes, 2008, Groundwater Modeling of New Water Right and Transfer
Applications, City of Yelm, Washington. Prepared for City of Yelm. January 29,
zoos.
Rongey/Associates, 2001, Hydrogeologic Investigation, Yelm Prairie Area. Prepared for
JZK, Inc. February 200].
Page 6
July 3, 2008
MEMORANDUM
Project No.: 080130-001-02
5kilhngs Connolly, 2002, City of Yelm Comprehensive Water Plan. Prepared for City of
Yelm. September 2002.
TfIUR 07-08, Application for Change/Transfer, Report of Examination for 5155-A. Prepared
by 71~urston County Water Conservancy Soard. January 2R, 2008.
Washington State Department of Ecology (Ecology), 2007, Atnended Report of Examinatio^
for Change, Certificate Na. 5866. June 20, 2007.
Watershed Professionals Network (WPN), 2002, Nisqually River Level I Watershed
Assessment (WRIA I1), Summary Report. Prepared for Nisqually Watershed
Planning Group. July 2002.
Limitations
Work for this project was perFormed and this memo prepared in accordance with generally
accepted professional practices for the nature and conditions of work completed in the same
or similar localities, at the time the work was performed. It is intended for the exclusive use
of 7Z Knight for specific application to the referenced property, This memo does not
represent a legal opinion. No other warranty, oxpresscd or implied, is made.
Attachments
Figure 1 -Study Location
Figure 2 -Cross Section A-A'
Figure 3 - Qva Aquifer Groundwater Elevation Contours
Figure 4 - Qe Agvifcr Groundwater Elevation Contours
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AT70RREYS AT LAW
May 13, 2009
VIA EMAIL & U S. MAII,
Mr. Jay Manning
Director, Department of Ecology
P. 0. Box 47600
Olympia, WA 98504-7600
Dear Mr. Manning:
As you know, my client, J7 Knight, has been very concerned during the past two years
about the City of Yelm's failure to comply with applicable legal requirements related to water
planning and water availability determinations for proposed residential and commercial
development.
In early 2008, Knight challenged the City's approval of five proposed subdivisions
totaling 568 lots based on the City's failure to demonstrate adequate water availability. On
November 7, 2008, Thurston County Superior Court Judge Chris Wickham agreed with Knight
and entered ajudgment reversing the City's approval of these five proposed subdivisions, This
reversal was based on the City's refusal to require proof of water availability for final plat
approval. Although the City appealed that decision, in its brief€ng to the Court of Appeals the
City no~~ concedes that water availability must be determined at the time of final plat approval.
Had the City followed this requirement of state law from the outset, my client and the City could
have been spared considerable time, expense, and frustration.
My client believes that private citizens should not be obligated to "police" the City of
Yelcn regarding water issues. "I'he following is a summary of impot•tant issues that dernand tltc
immediate attention and active involvement of the Department of Ecology:
I . The City of Yelm continues to claim and rely on water rights if does not have and
continues to approve new development without a valid and current plan to provide
water to existing and new development.
2. From 2001 to 2008, the City of Yelm pumped water in excess of its ]awful water
rights. lcology and the Depar-linent of Ilealth declined to take enforcement
action based on the City's promise that it would update its Water System Plan that
expired in September of 2008. To date, the City has not updated its Water System
Plan, yet it continues to approve new development projects and conthiues to make
commitments that will result in future water demand.
2025 First Aveime. Su9te 500, seatthe, WA 98k21-31A0 206-382-954 fax 20G-G7G-fl675 v;vnv.GordonDerceom
Mr. Jay Manning - 2 - May 13, 2009
3. In 2008, the City issued draft and final Enviromnental Impact Statements for
Thurston Highlands, a proposed 1240-acre master plaruted community
development that wouid add 5000 residences and over 1 million square feet of
commercial development to the City's water demand.
4. The City's E15 acknowledged that significant new water rights would be required
to serve the Thurston I-Iighlattds project. However, tlae City opted to defer all
environmental review of impacts attributable to the City s acquisition and use of
such new water rights. The City promised that environmental review of "the
itnpact that additional groundwater withdrawal may have on public and private
water systems'' would be considered by the Department of Ecology. "as part of its
review of new water rights applications." DEI5, Section 3,3, p. 37.
5. On May 1, 2009, the City of Yehn issued a Mitigated Determination ofNon-
Significance ("MDNS") under SEPA fora "project" consisting of three water
rights applications with a priority date of 3anuary 10, 1994, requesting 10,000
acre-feet of water for municipal supply.
6. The City's MDNS purports to be a determination that the proposed action
(approval of 3,233.73 acre-feet of new water rights and transfer of 952.57 acre-
feetper year for municipal purposes in four phases betw~n 2010 and 2037) will
not have a probable signif cant adverse impact on the environment. This
determination rests on two proposed "mitigation measures".
o (1) mitigation of impacts to the 1!'isqually Valley, lleschu#es Valley,
and McAllister Valley hydrologic areas (as identified in a January 2008
Golder Associates report) through a "phased, adaptive management
approach" (as outlined in the City's "Final Water Rights Mitigation Plan'
dated October 2008); and
o (2) mitigatimr of impacts to the Woodland Creek hydrologic area as
identified in a .lanua~y 2008 Golder Associates report) through a "phased,
adaptive management approach" (as outlined in the City's "FinaE Water
Rights Mitigation Plan" dated October 2008).
7. The mitigation plan documentation relied upon in issuing this MDNS for over
3200 acre-feet of new water rights has not been reviewed or approved by
F_,cology.
8. The City's MDNS fails to acknowledge that the City has not completed the
required update of its Water System Plan, which is at least 8 months overdue.
9. The City's designation of itself as lead agency for the environmental review of
these water rights applications is contrary to a specific purpose of the 5EPA
regulations applicable to lead agency designations - to "identify agencies with
environmental expertise." WAC 197-] 1-900(4).
Mr. Jay Manning - 3 - May 13, 2009
] 0. SEPA regulations identify the Department of Ecology as an agency possessing
"special expertise" regarding "water resources and water quality." WAC 197-I I-
920(2)(b). 'the City of Yelrn has no such special expertise, and has demonstrated
by its past actions that it lacks the commitment to comply with laws and
regulatians applicable to water rights and water system planning.
1 1, The City's designation of itself as lead agency for the environmental review of
these water rights applications is contrary to SEPA regulations specifically
providing that Ecology, as the "first agency receiving an application for or
initiating a nonexempt proposal shall determine the lead agency for that
proposal." WAC 197-11-924(1). Ecology received the City's water rights
applications in 1994 and has the authority to determine the lead agency. Given
the City's previous promise that Ecology would review environmental impacts
"as part of its review of new water rights application," and given Ecology's role
in the review and approval of these new water rights, Ecology sltoutd assume the
role of lead agency for this environmental review.
12. Mr. Tom McDonald wrote a letter to Ecology (Tom Lorangcr) an Aprit 15, 2009,
on behalf of .TZ Knight protesting some of the glaring shortcomings of the Yeim
Water Mitigation flan, including the City's failure to address significant impacts
to the aquifers and groundwater flow in the area of Yelm's proposed well field -
for example, a predicted change in local ground water levels of up to 23 feet in
the vicinity of JZ Knight's property.
13. 1'he City's proposed MDNS fails to address these major environmenta[ impacts
and is based on the City s significantly flawed water mitigation plans that have
yet to be reviewed and approved by Ecology. In light of these substantial
deficiencies, and in accardance with the provisions of WAC 197-1 }-340(3)(a)(ii)
and (iii), Ecology should immediately request that the City of Yelm withdraw the
proposed MDNS issued on May 1, 2009.
14. )/cology should immediately notify the City of Yelnt Chat Ecology intends to
assume lead agency status for the proposed water tights applications.
15. In light of the significant environtttental impacts to gz•ound water that have been
identified by the City and my clien# but have not been addressed in the City's
mitigation plan, Ecology should require that additional mitigation measures be
required for these three water rights applications or that aft EIS be initiated for the
City's water rights applications before any further actions are taken on the project
as indicated in WAC 197-I I-330.
f 6. Ecology must require that the City complete the update to the City's Water
System Plan prior to any further review and approval of the City's water rights
applications by l:;cology.
Mr, Jay Mvming - 4 - May 13, 2009
17. My client and the general public are depending upon Ecology to play a Eead role
in ensuring that there will he a thorough environmental review of the City of
Yelm's proposed water withdrawals for projected future development. Frankly,
the City of Yelm has not earned the trust of my client or the general public. The
City has attempted to brush aside envitonmental issues 6y issuing a proposed
MDNS based on an inadequate and unapproved mitigation plan. Ecology must
insert itself into this process to protect the public interest.
18. The City's MDNS comment period ends this Friday, May 15, 2009. We strongly
urge Ecology to recognize and fulfill lts duty to the public to submit comments
including, at a minimum, (1) that Ecology wi[l assume lead agency status, (2) that
the City should withdraw the proposed MbNS pending further environmental
review, and (3) that the City must comple€e the update of its Water Systean Plan
prior to any further review and approval of the City's water rights applications by
Ee~l~~y.
Sincerely,
G~ORDO~N/D~ERR LLP
I ~~
Keith F.,. Moxon
KEM/aka
cc: YIA EMAIL & U.S. MAIL
Mary C. Seiecky
Sa11y Toteff
Ken Slattery
Jerrod Davis
Thomas I,oranger
Jeff Marti
Bonnie Waybright
Ttegina Grimm
Maia Belton