POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

EVERGREEN GOLF DESIGN, )

)

Appellant, ) PCHB NO. 96-8

)

v. ) FINAL FINDINGS OF FACT

) CONCLUSIONS OF LAW

STATE OF WASHINGTON, ) AND ORDER

DEPARTMENT OF ECOLOGY, )

)

Respondent, )

)

THE TULALIP TRIBES OF )

WASHINGTON, )

)

Intervenor. )

___________________________________)

A final hearing was held in the above matter on December 2, 1996. The board was comprised of James A. Tupper, Jr., presiding, Richard C. Kelley and Robert V. Jensen. Court reporting services were provided by Gene Barker & Associates of Olympia, Washington.

Appellant appeared by and through its attorney Charles Lean and the law firm Bogle & Gates. The Department of Ecology appeared by and through Rebecca Vandergriff, assistant attorney general. The Tulalip Tribes of Washington appeared by and through their attorney Mason D. Morisset and the law firm Morisset, Schlosser, Ayer & Jozwiak.

The board has considered the testimony and exhibits admitted at the hearing together with the arguments of counsel. Based on this review, the board enters the following

FINDINGS OF FACT

I.

WRIA 7 consists of the Snohomish Watershed. The Snohomish Watershed is located in the north-central Puget Sound region and includes portions of Snohomish and King counties. The land surface of WRIA 7 covers 1,867 square miles, of which 1,780 is drained by the Snohomish River. The major river in WRIA 7 is the Snohomish River, and its major tributaries are the Snoqualmie and the Skykomish Rivers. The Snohomish River originates south and east of Everett, where the Snoqualmie and Skykomish Rivers meet in confluence, and drains into Puget Sound just north of Everett. WRIA 7 includes the Snoqualmie, Pilchuck, Skykomish, and Tulalip Subbasins.

II.

WRIA 7 has two distinct physiographic provinces, the Puget-Willamette Lowland Province and the Cascade-Sierra Province. The Puget-Willamette Lowland covers the far-western portions of the Snohomish Watershed, and is characterized by upland plateaus dissected by broad river valleys. The plateaus typically range in elevation from 200-600 feet above sea level, forming the foothills to the Cascade Mountains. The Cascade-Sierra Province occupies the eastern and southeastern portions of the Snohomish Watershed, where the Cascade Mountains span up to 7,000 feet above sea level at some of its peaks. The Cascade Mountains are composed of exposed Tertiary rocks. The same Tertiary rock formations also underlie the entire watershed, but are deeply buried under glacial and fluvial sediments under the lowland areas.

III.

WRIA 7 is geologically characterized by significant quantities of Quaternary alluvial (Qal) sediments which have been deposited in valleys and stream channels throughout the Snohomish Watershed. WRIA 7 contains isolated areas of Vashon recessional outwash (Qvr). In the upland plateau areas in the western portions of the Watershed exposed Vashon Till (Qvt, or "hardpan") is found. Underlying the Vashon Till is Vashon advance outwash (Qva), the most extensively developed aquifer zone in the Snohomish Watershed. Vashon advance outwash is itself underlain by Transitional beds (Qtb) and Upper fine-grained unit (Q(A)f). Below the transitional beds is a zone known as Undifferentiated sediments (Qu), characterized by a layer of interglacial, coarse-grained sand and gravel (Q(A)c) which contains a mostly confined aquifer of significance in the Watershed. The geologic formations from which groundwater is principally tapped from WRIA 7 include the alluvial sediments, Vashon recessional outwash, Vashon advance outwash, and the layer of interglacial, coarse-grained sand and gravel.

IV.

WRIA 7 is also characterized by valleys cut into glacial sediments by the Snohomish River and its tributaries. These valleys were filled by recent alluvial sediments, much of which is highly permeable. Because much of the Watershed's geological formation in the valleys is composed of highly permeable materials, aquifers in or near valleys are connected with surface water bodies. In addition, since the valleys themselves cut down through the Vashon deposits and through the deeper undifferentiated pre-Vashon deposits, a connection between the shallow aquifers and the deeper aquifers likely exists. The unconsolidated deposits and bedrock aquifers of the Snohomish Watershed are permeable and generally saturated, and thus groundwater wells are hydraulically connected to surface waters through these unconsolidated geologic deposits.

V.

WRIA 7 receives the bulk of its groundwater recharge from precipitation. WRIA 7 climate is typified by warm, dry summers followed by wet, cool winters. The precipitation patterns in the Snohomish Watershed vary from light to moderate in intensity. The wet season consists of the six winter months from October through March, during which about 72% of total rainfall occurs. During the driest period, June through August, only 10% of the area's total rainfall occurs. Precipitation generally flows into groundwater from the upland foothills in the east down into the western lowland river valleys. Hydrogeologic formations also indicate that some groundwater flows down to great depths before rising back up.

VI.

Pumping of wells in WRIA 7 affects groundwater in three principal ways: it lowers groundwater pressures and heads; it reduces groundwater storage; and, it changes the rates of groundwater recharge from surface waters and discharge to surface waters. "Hydraulic continuity" means that there exists a connection and interaction between groundwaters and surface waters. An aquifer is in hydraulic continuity with surface waters (lakes, streams, creeks, ponds) when it is discharging water into surface waters or when surface waters are recharging the aquifer. WRIA 7 groundwater discharges to surface water when the water levels in the aquifers are higher than the surface water levels; this occurs throughout most of the lower elevations in the Watershed. Surface waters will flow into groundwaters where surface water levels are higher than groundwater levels, as they are in the higher elevations in the Watershed.

VII.

WRIA 7 instream flow requirements and surface water closures were made in 1979 by rule in WAC 173-507. Minimum instream flows were established in WAC 173-507-020 at ten locations, with an additional 22 low flow provisions established in WAC 173-507-030 for various tributaries of the major surface water bodies. Instream flows were established on the Snoqualmie River at Snoqualmie and Carnation, and on the Snohomish River near Monroe, and on the Skykomish, Pilchuck, and Tolt Rivers. Since 1979, when the WAC rule was enacted, instream flows on the Snoqualmie River have not been met for an average of 114 days per year at Snoqualmie and 112 days per year at Carnation. Instream flows on the Snohomish River have not been met since 1979 near Monroe an average of 121 days per year. WAC 173-507-030 also closed to further appropriation tributaries to the following tributaries to the Snoqualmie River: Griffin Creek, Harris Creek, Patterson Creek, the Raging River, and Little Pilchuck Creek.

VIII.

The Pilchuck Subbasin is characterized by broad glacial drift plains which form uplands trending north-northwest. The upland is bisected by the Pilchuck River valley. The upland to the west is called the Getchell Plateau, and the upland to the east is called the Lakes Plateau. The Getchell Plateau is dissected by the Little Pilchuck Creek and its tributaries. The Little Pilchuck Creek flows south and joins the Pilchuck River to the east of Lake Stevens. The Pilchuck River valley bisects the upland to the east and south, with the Marysville trough on the west. The northeastern edge of the upland is bounded by the South Fork of the Stillaguamish River.

IX.

The hydrogeology of the Pilchuck Subbasin is characterized by erosion-resistant Quaternary Vashon till (Qvt) forming the surface layer of both the Getchell and Lakes Plateaus. Also present are scattered remnants of Vashon recessional outwash deposits (Qvr). The altitude of the top of this layer of Vashon till (Qvt) mostly mirrors the land surface topography, ranging from less than 100 feet in the southern portions to over 500 feet in the northern portions. An aquifer formation made up of Vashon advance outwash (Qva) underlies the Vashon till layer (Qvt), and it terminates abruptly in bluffs as a result of surface water erosion. This Vashon aquifer is absent in certain locations underlying the Getchell Plateau; it is thus split into distinct southern and northern systems.

X.

A second, Pre-Vashon aquifer is also located in the Pilchuck Subbasin. Underlying the Vashon aquifer (Qva) are Quaternary transitional confining beds (Qtb), and underlying these confining transitional beds are Quaternary undifferentiated sediments (Qu), which have been referred to as an upper coarse-grained unit (Q(A)c) of the Pre-Vashon deposits. In the Getchell Plateau area these Qu deposits have also been identified as Possession advance outwash (Qpa). This second area aquifer system is regionally extensive, with altitudes at its top layers ranging from sea level in the southern areas to over 300 above sea level in the north. These Qu aquifer deposits, or upper coarse-grained unit or Possession advance outwash aquifers, directly overly Tertiary bedrock (Tb). Just east of the Little Pilchuck Creek, in the northeast portion of the Getchell Plateau, this bedrock occurs at shallow depths under a veneer of Quaternary deposits.

XI.

In general, the Getchell Plateau is an upland, characterized by a regional topographic and groundwater divide between westward, eastward, and southward flowing groundwater in both Vashon advance (Qva) and Pre-Vashon (Qu, Qpa, or Q(A)c) aquifers. These aquifers discharge groundwater into the valleys on all sides of the plateau, except to the northeast portion which is bounded and confined by bedrock. The local upland Vashon aquifers (Qva and Qvr) in the Getchell Plateau discharge groundwater into the alluvial aquifers and streams along valley walls. Groundwater in the alluvial aquifers flows toward local discharge points along valley streams, including the Pilchuck River. The Pre-Vashon aquifer (Qu, Qpa, or Q(A)c) has a downward gradient and is partially saturated in the northern portion of Getchell Plateau. In the southern portion of this divided aquifer, it is fully saturated and has an upward gradient toward its discharge area.

XII.

The Evergreen proposed groundwater withdrawal consists of a new well located in the Pilchuck Subbasin, on a site located on the Getchell Plateau, in a broad glacial drift plain north of Lake Stevens midway between the Marysville trough to the west and the Pilchuck River Valley to the east. The application, G1-27573 is for the right to pump 500 gallons per minute (gpm) from the well, to supply water for irrigation of a 36 hole golf course and for associated domestic supply needs. The irrigation supply will come from a series of ponds from which water will be withdrawn. Site elevation is between 320 and 400 feet above sea level, and the site is located within Section 30, Township 30N, Range 6E, W.M., in Snohomish County. The application is for a consumptive use.

XIII.

The well is located in the Pilchuck Subbasin. The location consists of Vashon till (Qvt) and scattered remnants of Vashon recessional outwash (Qvr), with a Vashon advance outwash aquifer (Qva) underlying the Vashon till layer. Erosion in the Vashon till layers has created sand and gravel filled channels in some locations. Evergreen's test well 1 encountered such a channel, which is locally unconfined. The channel deposits are separated from the aquifer by a 2 foot silt layer at 90 to 92 feet below ground surface. The static water level elevation in the test well is 337 feet above sea level. Lake Cassidy has a surface elevation of 319 feet above sea level. Lake Cassidy outlet flows go into Catherine Creek, which itself flows into Little Pilchuck Creek, which itself flows into the Pilchuck River. The hydraulic heads in wells in the Vashon advance aquifer (Qva) into which the Evergreen well taps and wells in the Lake Cassidy area are so close that hydraulic continuity between the aquifer and the lake is certain.

XIV.

Evergreen's well pumps water from a Vashon advance aquifer. Natural groundwater flow in this aquifer is either vertical toward Lake Cassidy, or lateral toward the Pilchuck River. The Vashon advance (Qva) layer is exposed to the southeast along the valley walls of the Little Pilchuck Creek and of the Pilchuck River, strongly indicating that the aquifer embedded in that geographic layer discharges into those surface water bodies. The Pilchuck River may even be the regional groundwater discharge point for the aquifer systems east of the Getchell Plateau topographical divide, near which the Evergreen well is situated.

The aquifer into which the Evergreen well taps and from which it draws groundwater would naturally discharge that groundwater to the Little Pilchuck Creek and the Pilchuck River about 3 miles to the southeast of Evergreen's well, just to the northeast of Lake Stevens. In addition to the hydrogeographical factors indicating this fact, Evergreen's well logs and wells logs on file at Ecology also indicate that this is the case.

XV.

The Evergreen project proposed groundwater pumping from the Vashon advance aquifer will most likely have its effect to the southeast of the location of the well, interfering with the flow of groundwater into the Little Pilchuck Creek and the Pilchuck River, in particular near the confluence of those two surface water bodies. As indicated above, however, the well is situated very near a regional and topographical groundwater divide, between westward, eastward, and southward flowing groundwater. Therefore, in addition to affecting the groundwater gradient to the southeast toward the confluence of the Pilchuck River and the Little Pilchuck Creek, Evergreen's proposed pumping would also likely affect on the groundwater flow toward Lake Cassidy, thereby reducing groundwater flows to Lake Cassidy, which in turn feeds Catherine Creek, a tributary of Little Pilchuck Creek.

XVI.

Pilchuck River instream flows established in WAC 173-507-020 have not been met 105 or more days per year between 1992 and 1995. The Little Pilchuck Creek is closed to further appropriations by WAC 173-507-030. Both the Pilchuck River and the Little Pilchuck Creek are down gradient from Evergreen' proposed wells. Pumping from the Evergreen well will decrease groundwater flows into the Pilchuck River and the Little Pilchuck Creek, and in addition would decrease groundwater flows into Lake Catherine, which flows into Catherine Creek, which in turn flows into the Little Pilchuck Creek. Reducing groundwater flows into these surface water bodies would increase the number of days minimum instream flows on the Pilchuck River would not be met in the future, and would affect the closed Little Pilchuck Creek.

XVII.

WAC 173-507-020 establishes instream flow requirements for the Pilchuck River. WAC 173-507-030 closes the Little Pilchuck Creek. WAC 173-507-040 prohibits by rule the withdrawal of groundwater that is in hydraulic continuity with closed surface waters in WRIA 7, and prohibits by rule the withdrawal of groundwater that is in hydraulic continuity with surface water bodies which have instream flow requirements set by WAC rule which are not being met or would not be met if the proposed use were permitted.

XVIII.

The Evergreen well would withdraw groundwater which is in hydraulic continuity with the Pilchuck River and the Little Pilchuck Creek in violation of WAC 173-507. Ex. R-25A at 9.

XIX.

Any conclusion of law deemed to be a finding of fact is hereby adopted as such.

Based on the foregoing findings of fact, the board enters the following

CONCLUSIONS OF LAW

I.

The board has jurisdiction in this matter in accordance with RCW 43.21B.

II.

An new appropriation of water for a consumptive use may not be granted where the use would impair existing rights. RCW 90.44.060. This is equally true for surface water and groundwater. Moss v. Department of Ecology, PCHB No. 96-138 (January 8, 1997). We have previously held that where there is any hydraulic continuity between a proposed groundwater withdrawal and surface waters closed by regulation to further appropriation, the proposed groundwater withdrawal would impair existing rights within the meaning of the statute. Union Hill Water and Sewer District v. Department of Ecology, PCHB No. 96-94 (1996). The Little Pilchuck Creek is closed to further appropriations under WAC 173-507-030. Since the proposed well would be in hydraulic continuity with Little Pilchuck Creek, the application cannot be granted without impairing the existing right represented by the regulatory closure to protect instream flows.

III.

The same rule applies to the extent that the proposed well is in hydraulic continuity with the Pilchuck River. While the river is not closed to further appropriation, minimum instream flows are established for the river under WAC 173-507-020. Those flows were not met 105 or more days a year between 1992 and 1995. Where base flows are not being met, the water body must be treated in the same manner as stream subject to outright closure and no additional groundwater rights in hydraulic continuity may be granted without impairing the existing right to adequate instream flow. Covington Water District v. Department of Ecology, PCHB No. 96-72 (November 27, 1996).

IV.

Evergreen contends that Ecology’s own basin assessment fails to establish that groundwater pumping in the Snoqualmie basin has contributed to declining flows. The assessment states: “Existing ground-water withdrawals are not expected to be distinguishable in minimum streamflow trends as total pumping from wells is significantly less than annual baseflow.” (R-4, at 3.) The basin assessment further concludes that, with the exception of the Sultan River, “there is no strong indication that the instream flows are being met any less frequently under current conditions than they were in the past.” (R-4, at 30.) Evergreen thus argues that the storage capacity of aquifers within the basin so far exceed potential groundwater withdrawals that there will be no impairment of stream flows by granting its application for a new water right.

V.

The appellant’s suggested approach cannot be reconciled with current hydrogeological understanding that the appropriation of groundwater in hydraulic continuity with surface water results in reduced stream flow by diverting water that would otherwise discharge to surface water or inducing the recharge of surface water in response to the reduction in storage capacity within the aquifer. This board has previously commented that the Water Resources Act of 1971, Chap. 90.54 RCW, under which Ecology promulgated stream flow regulations, was adopted at a time when many rivers and streams had long been subjected to over-appropriation. PUD No. 1 of Jefferson County v. Department of Ecology, PCHB No. 86-118 (1989). We described there the process by which Ecology established a stream flow that exceeded actual flows at the time of adoption:

The amount by which base flow exceeds actual flow is sometimes referred to as “paper water” in recognition of the fact that it exists only on paper and not in real life. Yet the worthwhile object of establishing “paper water” is that when in the future, existing appropriators may abandon or forfeit their water rights the associated waters can be devoted to filling out the base flow, and thereby remain in the river. In this fashion the quality of a river already degraded by over-appropriation when the base flow legislation was enacted can be “enhanced” by base flows.

PUD No. 1 of Jefferson County, PCHB No. 86-118, at 13. It is not therefore dispositive that the Pilchuck River has not met minimum streamflows over time. On the contrary, that evidence makes a more compelling case that it would be improvident to grant any further groundwater withdrawals absent evidence that stream flows have been enhanced as anticipated through adoption of minimum srtream flows. Where base flows are not being met, the water body must be treated in the same manner as stream subject to outright closure and no additional groundwater rights in hydraulic continuity may be granted without impairing the existing right to adequate instream flow. Covington Water District v. Department of Ecology, PCHB No. 96-72 (November 27, 1996).

VI.

The proposed withdrawal would therefore impair existing rights within the meaning of

RCW 90.03.290 and was properly denied.

VII.

Any finding of fact deemed to be a conclusion of law is hereby adopted as such.

Based on the foregoing findings and conclusions the board enters the following

ORDER

IT IS HEREBY ORDERED that Ecology’s denial of Evergreen’s groundwater permit

application G1-27573 is AFFIRMED.

DATED this 4th day of February, 1997.

POLLUTION CONTROL HEARINGS BOARD

JAMES A. TUPPER, JR.

RICHARD C. KELLEY

ROBERT V. JENSEN

P96-8F