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HomeMy WebLinkAbout12- Amicus Brief BMW w exhibits.pdfGregory S. Sullivan BOZEMAN CITY ATTORNEY P.O. Box 1230 Bozeman, MT 59771 -1230 Tel: (406) 582 -2309 Fax: (406) 582 -2302 gsullivan@bozeman.net Attorney for the City of Bozeman, Montana IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ALLIANCE FOR THE WILD ROCKIES & NATIVE ECOSYSTEM COUNCIL, Plaintiffs, VS. FAYE KRUEGER, Regional Forester of Region One Of the Forest Service, UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, UNITED STATES FISH AND WILDLIFE SERVICE, an Agency of the US Department of The Interior, Defendants Case No.: CV- 12- 55 -M -DLC BRIEF OF AMICUS CURIAE CITY OF BOZEMAN, MONTANA Brief ofAmicus Curiae City of Bozeman, Montana Page 1 Having been granted leave by the Court, the City of Bozeman, Montana, hereby submits this Brief ofAmicus Curiae. I. Introduction. One of the most critical services the City of Bozeman (City) provides to its residents, businesses, and civic institutions is the provision of adequate and safe potable water. Through this Brief the City will provide information that: (i) illustrates the City's legal duty to provide water; (ii) demonstrates these watersheds are its primary source of water; (iii) establishes that real threats to these watersheds exist potentially impacting the City's ability to provide water; and (iv) documents the City's recent significant efforts to plan for water. In addition, the City will discuss the Plaintiffs haphazard attempt to use to their advantage the current investments to the City's Sourdough Water Treatment Plant (SWTP). Finally, the City will put all of the above into context of the Healthy Forest Restoration Act (16 U.S.C. § 6501(1)) ( "HFRA ") to demonstrate the Defendants have exceeded their burden under the National Environmental Policy Act (NEPA) (42 U.S.C. § 4331, et seq.). Essentially, the City encourages the Court to consider the information provided herein and the Defendant's NEPA evaluation in context of the HFRA and decide in favor of the Defendants. Brief ofAmicus Curiae City of Bozeman, Montana Page 2 II. The City has a legal duty to provide water to its residents, businesses, and civic institutions. The investments the City has made over time and the partnership with the Gallatin National Forest (GNF) are vital steps the City has taken to fulfill its obligations to the community. It is obvious then, that the City's interest in the Bozeman Municipal Watershed Project (BMW Project) is grounded in the obvious concept that because the City has taken on the responsibility to provide water for consumption and fire protection to its residents, businesses, and institutions, the City has a legal duty to take necessary and reasonable steps to ensure the water it provides is both adequate in volume and safe. See, e.g., Mont. Code Ann. § 7 -13- 4402 (2011) ( "The city or town council has power to adopt, enter into, and carry out means for securing a supply of water for the use of a city or town or its inhabitants "); Mont. Code Ann. § 7- 13- 4406(1)(c) ( "(1) Cities and towns have jurisdiction and control: (c) over the source of streams from which water is taken for the enforcement of its sanitary ordinances, the abatement of nuisances, and the general preservation of the purity of its water supply ") (emphasis added); and Mont. Code Ann. § 75 -6 -101 ( "It is the public policy of this state to protect, maintain, and improve the quality and potability of water for public water supplies and domestic uses "). Brief ofAmim Curiae City of Bozeman, Montana Page 3 Moreover, the Safe Drinking Water Act (42 U.S.C. § 300(f) et seq.), as enforced by the State of Montana, places strict standards on the quality of potable water. See Mont. Code Ann. § 75 -6 -101 et seq. These Montana statutes, when read together, clearly demonstrate the City's duty under the law to take proactive steps to protect its source water supply in the Sourdough and Hyalite watersheds. III. Hyalite and Sourdough Creeks have been and will continue to be the City's primary source of water. Sourdough Creek (aka "Bozeman Creek ") and Hyalite Creek lie to the south of the City in the northern end of the Gallatin Range. BMW - 0000084. The vast majority of both watersheds are in federal ownership; the City, however, owns 4,000 acres scattered throughout ten sections of land in a checkerboard pattern within the Sourdough Creek watershed. Id.; Amicus Exhibit 1, Declaration of Craig Woolard, ¶16. Collectively, these watersheds provide approximately 80% of the source water for the City's municipal water system. BMW- 0000006; BMW- 0019160. The City's remaining water source is located on the City's north side in the Bridger Mountains. Amicus Exhibit 1, Declaration of Craig Woolard, ¶7. The significant investments the City has made over time in water collection, storage, and treatment in Sourdough and Hyalite indicates these watersheds have been, are, and will be critical sources of water for the City for decades to come. In Brief of Amicus Curiae City of Bozeman, Montana Page 4 fact, the City first began collecting and treating water from Sourdough Creek in 1917 (Amicus Exhibit 1, Declaration of Craig Woolard, ¶8) and from Hyalite Creek in the mid 1950s. Id. Over time, the City has invested in excess of $55,000,000.00 of tax and ratepayer dollars in infrastructure to collect and treat water sourcing in these watersheds. Id., 19. Moreover, over the last 20 years the City has invested upwards of a total of $2,000,000.00 in securing and protecting water rights in the Sourdough watershed and water shares in the Montana Department of Natural Resources and Conservation's Hyalite Dam project. Id. Finally, the City is in the process of conducting an Integrated Water Resource Plan (IWRP) the purpose of which is to explore, evaluate, and prioritize the range of alternatives available to address anticipated water supply challenges for the City. Id., ¶10. The IWRP, in conjunction with the historic use of these watersheds and the investments the City has made clearly demonstrate the City intends these watersheds to be a primary source of the City's water, and a primary factor in ensuring the City's economic vitality, for decades. Id., 110. IV. Real threats exist to the City of Bozeman's Sourdough Water Treatment Plant. On Tuesday, August 28, 2012 the Millie Fire started from a lightning strike in the Storm Castle Creek drainage, an east to west running drainage in the Brief of Amicus Curiae City of Bozeman, Montana Page 5 northern Gallatin Range less than 20 miles south of the City. Id., ¶13. The upper eastern reaches of the Storm Castle drainage share several miles of a subalpine ridge with the Hyalite Creek watershed. Before it was over this past fall, the Millie Fire burned 10,515 acres including lands adjacent to the boundary of the Hyalite Creek watershed. Id., ¶14.; See Amicus Exhibit 2 (illustrating the relationship between the Millie Fire's perimeter and the Hyalite and Sourdough watersheds). It is clear that runoff from fires such as the Millie can have a detrimental effect on the City's ability to treat source water. See Amicus Exhibit 3, Declaration of Dan Harmon, ¶¶ 10 - 17. This fire, so close to the City's watersheds, demonstrates the critical nature of the Bozeman Municipal Watershed Project. V. The City's effort to address the buildup of hazardous fuels in Sourdough and Hyalite watersheds involvement began in 2003 and continues today. In 2004, the City, concerned about increasing population growth and changing forest conditions in the Hyalite and Sourdough watersheds, completed a Source Water Protection Plan (Plan) for the Sourdough and Hyalite watersheds. Amicus Exhibit 1, Declaration of Craig Woolard, ¶ 11. The most important and useful finding of the Plan was clear identification of the severity of the risk posed by wildfire in the Sourdough and Hyalite watersheds. Id. The Plan determined rainfall - runoff in the watersheds will result in heavy sediment loads that could not Brief of Amicus Curiae City of Bozeman, Montana Page 6 be treated by the City's then existing water treatment plant. Id. The Plan determined the times of heavy runoff could last from a few days to weeks, and for several years following a major fire event the City would be incapable of meeting water demand, resulting in a serious water supply crisis. Id. The Plan called for the City to take proactive steps to protect these source watersheds. Id. It was this Plan that prompted the City to step up its efforts to work with the GNF to develop a 2005 Memorandum of Understanding (MOU). BMW- 0001602; BMW- 0001700. The purpose of the MOU, which was updated by the City and GNF in 2011, is to "document the cooperation between the [City and GNF] to maintain (in the long term) a high - quality predictable water supply for Bozeman through cooperative efforts in implementing sustainable land management practices. Id. The City and GNF agreed upon numerous objectives, including: Id. • Implementing vegetation management projects that will begin to reduce the severity and extent of wildland fires in the Bozeman and Hyalite Municipal Watersheds; and • Focusing on treatments that will begin to reduce the risk of excess sediment and ash reaching the municipal water treatment plant in the event of a severe wildland fire. Brief of Amicus Curiae City of Bozeman, Montana Page 7 The BMW Project arose out of the 2005 MOU. In addition to the effort to work with the GNF, the City recognizes it has an obligation to address hazardous fuels on its own lands in the Sourdough watershed and has taken proactive steps to do so. The City owns approximately 4,000 acres scattered throughout ten sections of land within the Sourdough watershed (BMW- 0021829) which will be managed in conjunction with the BWM Project. BMW- 0021834. Should the BMW Project move forward, the City will seek to contract for the management of its lands in conjunction with the GNF's process. Amicus Exhibit 1, Declaration of Craig Woolard, ¶ 16. VI. The Capacity of the Sourdough Water Treatment Plant to handle wildfire impacted water is not unlimited. The capacity of the SWTP is to handle wildfire impacted water is not unlimited. It is true the City has taken significant steps on its own to ensure the SWTP can adequately process water substantially affected by runoff from wildfire; however, the improvements the City is constructing have limitations. Plaintiffs assert through the Declaration of Steve Kelly that "the risk of harm to the Defendants and the City is low" as there is "new information that would lend even less credibility to the defendants' argument." Decl. of Steve Kelly, Pl.'s Mot. for S.J., Ex. 2, ¶ 9. This is a remarkably uninformed statement. The Plaintiff's rely solely upon a newspaper item that alleges to have quoted the SWTP's Brief ofAmicus Curiae City of Bozeman, Montana Page 8 Superintendant regarding the ability of the SWTP to handle sediment from a wildfire. The proposition that the City would rely solely on the BMW Project to address increased sediment loads coming into the SWTP due to wildfire is nothing less than absurd. See BMW - 0000025. Here's what's occurred: In 2011, the City began construction on a $43 million project to make significant improvements to the SWTP. Obviously, engineering and financial planning had been underway for years prior. The City contracted with two engineering firms, HDR, Inc. and Morrison - Maierle, Inc., to design and oversee the construction of these improvements. According to Dan Harmon, the principal design engineer of the SWTP's pretreatment facilities, a primary criterion of the design is to address the potentially severe decrease in source water quality caused by a wildfire. Amicus Exhibit 3, Declaration of Dan Harmon, ¶6. Contrary to the Plaintiff's assertion, the SWTP simply will not be able to process an unlimited nature of degraded source waters. See Id. at 115. While the SWTP has been designed to handle significant degradations to its source water quality there is a very real possibility the plant could actually shut down during periods when it receives highly degraded water. Id., 113. As such, it is clear the Plaintiffs' claim the BWM Project is unnecessary because of the City's investment in the SWTP is at best uneducated and at worst irresponsible. Brief of Amicus Curiae City of Bozeman, Montana Page 9 VII. This Court should consider the Healthy Forest Restoration Act in its evaluation of whether the Defendants complied with NEPA. The City encourages the Court to consider the Defendant's NEPA evaluation in context of the HFRA and the above discussions. The underlying basis for the BMW Project, the reduction of hazardous fuels to protect the City's potable water supply, is critical to a determination of this Court as to whether the Defendants have taken a sufficient "hard look" at the relevant factors under NEPA. This notion is supported by the importance Congress placed on protecting municipal watersheds from wildfire when it adopted the HFRA. In 2002, on the heal of a succession of devastating fire seasons in the western United States, President George W. Bush issued the Healthy Forests Initiative (HFI) which, in part, directed the U.S. Department of Agriculture and the U.S. Department of the Interior, "to improve regulatory processes to ensure more timely decisions, greater efficiency, and better results in reducing the risk of catastrophic wildfires by restoring forest health." Eric E. Huboer, Environmental Litigation and The Healthy Forests Initiative, 29 Vt.L.Rev.797, 799 (Spring 2005) (citing, The White House, Healthy Forests: An Initiative for Wildfire Prevention and Stronger Communities (2002)). A key piece of the HFI was the HFRA, a primary purpose of which is to reduce wildfire risk to communities, municipal water supplies, and other at -risk Brief of Amicus Curiae City of Bozeman, Montana Page 10 federal land through collaborative planning, prioritizing, and implementing hazardous fuel reduction projects. 16 U.S.C. §6501(1). Additionally, and critically for purposes of this case, a stated purpose of the HFRA is to enhance efforts to protect watersheds such as Sourdough and Hyalite. 16 U.S.C. § 6501(3). That the HFRA requires compliance with NEPA is not disputed (16 U.S.C. § 6514(a)(1)); yet, the HFRA clearly authorizes federal agencies to treat hazardous fuel reduction projects differently if those projects occur in a designated wildland- urban interface area (WUI). 16 U.S.C. § 6514(d). While it could have adopted an alternative review procedure for the entire BMW Project' (both watersheds lie completely within the Gallatin County WUI (BMW — 0001420)) the GNF conducted a customary NEPA analysis. See generally BWM — 0000090; Amicus Exhibit 1, Declaration of Craig Woolard, ¶ 15. The City believes this customary analysis provides a greater level of effort under NEPA than what HFRA would otherwise require. See 16 U.S.C. § 6514(d) (authorizing a limited range of alternative actions). The City believes this concept is critical to the Court's evaluation of the Defendants actions. At this time, case law on the application of HFRA's underlying policy and the application of alternative review procedures in relation to NEPA is limited. The 1 As a preliminary matter, while the BMW Project is not a designated project under HFRA it is clear the BMW Project was done in compliance with the HFRA. BMW — 0000085. Brief of Amicus Curiae City of Bozeman, Montana Page 11 City has not identified any authority regarding the application of the HFRA's purpose statements in context of a Court's judicial review of an agency's NEPA process. The City notes, however, that this Court may rely on legislatively adopted purpose statements, such as those found at 16 U.S.C. §6501(1)5 (3), as law to assist in its judicial review of this case. See Sierra Club v. Yodel, 911 F.2d, 1405, 1413 (10`h Cir. 1990). It is also clear that the Ninth Circuit has recognized the HFRA and the importance of its policy statements. Cf.. Wildwest Institute v. Bull, 547 F.3d 1162, 1165 (9`h Cir. 2008) (evaluating the Middle East Fork Hazardous Fuels Reduction Project, a HFRA project, on the Bitterroot National Forest). In Bull, the Ninth Circuit recognized, "The Healthy Forests Restoration Act ("HFRA"), 16 U.S.C. §§ 6501 et seq., directs the Forest Service to take action to "reduce wildfire risk" and "enhance efforts to protect watersheds and address threats to forest and rangeland health." Id. § 6501(1), (3). Specifically, the Forest Service is required "[a]s soon as practicable" to implement an "authorized hazardous fuel reduction project[ ]" on federal land where "the existence of an epidemic of disease or insects, or the presence of such an epidemic on immediately adjacent land and the Brief of Amicus Curiae City of Bozeman, Montana Page 12 imminent risk it will spread, poses a significant threat to an ecosystem component, or forest or rangeland resource. Id. § 6512(a)(4)." Id.. 547 F.3d at 1165. Given the above, the City requests the Court consider two factors in its evaluation of the Defendants' actions. First, the City requests the Court consider the HFRA's purposes as stated in 16 U.S.C. §6501(1), (3) when it evaluates the Defendant's actions under NEPA. This analysis should necessarily include the importance of these watersheds to the vitality of the City. Second, this Court can consider that the GNF conducted a level of NEPA review for the BMW Project greater than the HFRA would require. The BMW Project is compatible with the HFRA, and the City urges the Court to consider the spirit, purpose and compliance with this legislation as it considers the matters before it. VIII. Conclusion. In the 2005, pursuant to the MOU the GNF pledged its support to responsibly and cooperatively reduce hazardous fuels on the federal land within the City's watersheds. Furthermore, the GNF has heeded the call of the City for action and by doing so have heeded the call of Congress to prioritize and actively address the dangers that face communities such as Bozeman. Brief of Amicus Curiae City of Bozeman, Montana Page 13 As such, the City respectfully requests this Court deny the Plaintiff's motion for summary judgment as well as deny the Plaintiff's remedy of injunctive relief. Submitted the 7th day of December, 2012 /s/ Gregory S. Sullivan Bozeman City Attorney CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(d)(2)(E) the above brief is proportionally spaced, has a typeface of 14 points and contains 2,747 words excluding caption as determined using a word - processing system. /s/ Gregory S. Sullivan Bozeman City Attorney Brief ofAmicus Curiae City of Bozeman, Montana Page 14 Gregory S. Sullivan BOZEMAN CITY ATTORNEY P.O. Box 1230 Bozeman, MT 59771 -1230 Tel: (406) 582 -2309 Fax: (406) 582 -2302 gsullivan @bozeman.net Attorney for Amicus Curiae City of Bozeman, MT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ALLIANCE FOR THE WILD ) ROCKIES & ) NATIVE ECOSYSTEM COUNCIL, ) Plaintiffs, ) VS. ) FAYE KRUEGER, et al., ) Defendants ) Case No.: CV- 12- 55 -M -DLC DECLARATION OF CRAIG WOOLARD, Ph.D.,P.E. AMIWE) ExPIE517 J� DECLARATION OF CRAIG WOOLARD Pursuant to 28 U.S.C. § 1746, I, Craig Woolard, declare under penalty of perjury that the following is true and correct: 1. I am a resident of Bozeman, Montana. 2. I am 1989 graduate of Montana State University's College of Engineering and in 1993 I received a doctorate from the University of Notre Dame's Department of Civil Engineering and Geological Sciences. I am currently a registered professional engineer under the laws of the State of Alaska. 3. I am employed as the Director of Public Works for the City of Bozeman. My duties include supervision and oversight of the City's Water Treatment Plant Division which operates the Sourdough Water Treatment Plant (SWTP). I also am responsible for general oversight of the improvements currently being constructed at the SWTP. Prior to my employment with the City of Bozeman I served six years as the Treatment Division Director of the Anchorage Water and Wastewater Utility and one year as General Manager of that organization. 4. In 2010, I served as President of the American Water Works Association, the world's largest scientific professional organization devoted to the delivery of safe drinking water. AWWA has over 54,000 members. DECLARATION OF CRAIG WOOLARD 2 5. From 1994 -2006, I served as Professor of civil engineering at the University of Alaska's (Anchorage) School of Engineering where I conducted research into water and wastewater treatment operations. 6. Based on my education and experience I reviewed the design for the SWTP and have concluded the improvements being constructed at the SWTP have been designed to increase the plant's overall efficiency, to provide for increased treatment capacity, and to improve the ability of the SWTP to handle elevated sediment loading occurring in Sourdough and Hyalite creeks caused by wildfire. 7. The City collects water from both Sourdough (aka "Bozeman ") Creek and Hyalite Creek for distribution to the SWTP. These watersheds provide approximately 80% of the City's source water for the SWTP. The City also operates the Lyman Creek water source on the City's north side in the Bridger Mountains. 8. The City first began collecting and treating water from Sourdough Creek in 1917. The City first began collecting water from Hyalite Creek in the mid 1950s. 9. Over time, the City has invested in excess of $55,000,000.00 of its citizens' tax and ratepayer dollars in infrastructure to collect and process water from these watersheds. In addition, the City has invested upwards of a total of DECLARATION OF CRAIG WOOLARD 3 $2,000,000.00 in securing and protecting water rights in the Sourdough watershed and water shares in the Montana Department of Natural Resources and Conservation's Hyalite Dam project in the last 20 years. 10.The City is currently in the process of conducting an Integrated Water Resource Plan (IWRP) the purpose of which is to explore, evaluate, and prioritize the range of alternatives available to address anticipated water supply challenges for the City. The IWRP, in conjunction with the historic use of these watersheds and the investments the City has made, clearly demonstrate the City intends these watersheds to be a primary source of the City's water, and a primary factor in ensuring the City's economic vitality, for decades. II.The first studies I am aware of which discussed the need to address hazardous fuel conditions in the Sourdough and Hyalite watersheds occurred in 1980. Overtime, the city has been monitoring hazardous fuel conditions in these watersheds. Recently, in 2004, the City, concerned about its rapidly accelerating population growth and changing forest conditions in the Hyalite and Sourdough watersheds, completed a Source Water Protection Plan (Plan) for the watersheds. The most important and useful finding of the Plan was clear identification of the severity of the risk posed by wildfire. The Plan determined rainfall - runoff in the watersheds will result in heavy DECLARATION OF CRAIG WOOLARD 4 sediment loads that cannot be treated by the City's then existing water treatment plant. The Plan determined the times of heavy runoff could last from a few days to weeks, and for several years following a major fire event the City would be incapable of meeting water demand, resulting in a serious water supply crisis. The Plan called for the City to take proactive steps to protect these source watersheds. 12.In 2011 the City began construction of significant improvements to the SWTP after years of engineering and financial planning. 13.On Tuesday, August 28, 2012 the Millie Fire started from a lightning strike in the Storm Castle Creek drainage, an east to west running drainage in the northern Gallatin Range less than 20 miles south of the City. 14.The upper eastern reaches of the Storm Castle drainage share several miles of a subalpine ridge with the Hyalite Creek watershed. Before it was over this past fall, the Millie Fire burned 10,515 acres including and burned forest up to the boundary of the Hyalite Creek watershed. 15.Based on my qualifications and experience, I am familiar with the environmental review procedures of the National Environmental Policy Act (NEPA) and have reviewed the Record of Decision, Environmental Impact Statement, and the Supplemental Environmental Impact Statement for the Bozeman Municipal Watershed Project (BWM Project). It is my opinion the DECLARATION OF CRAIG WOOLARD 5 NEPA process the Gallatin National Forest adhered to for the BMW Project followed the customary and standard process. 16.The City owns approximately 4,000 acres scattered through ten sections of land in a checkerboard pattern within the Sourdough watershed. In 2010 Peck Forestry, Inc. on behalf of the City completed a forest management plan for these lands which calls for managing these lands for the primary purpose of reducing the risk for severe wildfire to protect source water quality. Should the BMW Project move forward, the City will seek to contract for the management of its lands in conjunction with the GNF's process. 17.As Public Works Director for the City is it my responsibility to ensure the adequate and safe provision of potable water to the City's residents, businesses, and institutions. EXECUTED ON this 5t" day of December, 2012 in Missoula, Montana. Z Crai oolard, Ph.D, P.E., City of Bozeman Public Works Director DECLARATION OF CRAIG WOOLARD 6 Gregory S. Sullivan BOZEMAN CITY ATTORNEY P.O. Box 1230 Bozeman, MT 59771 -1230 Tel: (406) 582 -2309 Fax: (406) 582 -2302 gsullivan@bozeman.net Attorney for Amicus Curiae City of Bozeman, MT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION ALLIANCE FOR THE WILD ) ROCKIES & ) NATIVE ECOSYSTEM COUNCIL, ) Plaintiffs, ) VS. ) FAYE KRUEGER, et al., ) Defendants ) Case No.: CV- 12- 55 -M -DLC DECLARATION OF DAN HARMON, P.E. AMiCU Ix41b«" 3 Declaration of Dan Harmon 1 Pursuant to 28 U.S.C. § 1746, I, Dan Harmon, declare under penalty of perjury that the following is true and correct: 1. I am a resident of Hamilton, Montana. 2. I am 1984 graduate of Montana State University and have been a professional engineer for 28 years. Currently, I am licensed as an engineer under the laws of the States of Montana, Idaho, Oregon, and Washington. 3. I am employed as a professional engineer by HDR, Inc., at offices located at 1715 South Reserve, Suite C, Missoula, Montana. HDR, Inc. is HDR, Inc. is a global employee -owned firm founded in 1917 to provide architecture, engineering, consulting, construction and related services throughout Montana, North America and the world. 4. I have experience designing and overseeing construction of municipal water treatment facilities throughout Montana and the Northwestern United States, 5. HDR, Inc. was contracted by the City of Bozeman (City) to design and oversee construction of improvements to the City's Sourdough Water Treatment Plant located at 7022 Sourdough Canyon Road, Bozeman, Montana. I am the principal engineer for the design and construction of these improvements. 6. The improvements being constructed at the Sourdough Water Treatment Plan (SWTP) have been designed to increase the plant's overall efficiency, Declaration of Dan Harmon 2 to provide for increased treatment capacity, and to improve the ability of the SWTP to handle elevated sediment loading occurring in Sourdough and Hyalite creeks caused by wildfire. 7. The improvements include pretreatment procedures designed to remove debris and sediment with final filtration of preliminarily treated water occurring through the use of a membrane filtration system. I designed the pretreatment system using published industry standard performance parameters in conjunction with historic water quality data and in compliance with the Montana Department of Environmental Quality's Design Circular DEQ -1: Design Standards for Water Works. 8. Information from scientific literature on forest fire impacts to surface water indicates that immediate changes to water quality occur after a wildfire and are significant in both magnitude and consequences for water treatment. These changes include increases in sediment and turbidity, changes to pH, and increases to phosphorous, cyanide, ammonium, nitrates, organic carbons, iron, manganese, and other chemical compounds for which treatment is required. All of the above affect the ability of a facility to convert source water to potable water suitable for human consumption. 9. Of particular significance to the ability of a water treatment facility to produce potable water is the potential increase in turbidity in affected Declaration of Dan Harmon 3 watersheds following a wildfire. Scientific studies conducted in the western United States indicate levels of turbidity in waters affected by sedimentation caused by wildfire can increase to a possible range of 3,500 up to 31,000 NTUs (nephelometric turbidity units). IO.Based on the information in the scientific literature, the impacts to the water quality of the SWTP's sources can be expected to be particularly severe during the first runoff season following a wildfire. 11. Water quality changes to source water can be expected to persist for at least five years and for some wildfires may last up to ten years. Although the magnitude and particular parameters affected may vary from year to year and depend directly on the severity of weather events, changes in water quality, especially changes in turbidity, will pose a significant challenge to the SWTP should Sourdough Creek or Hyalite Creek, or both, experience a significant wildfire. 12.The SWTP is designed to handle turbidities up to 1,000 NTU. This is a significant improvement over current SWTP capabilities and represents a treatment capability greater than many public water treatment facilities. At this level, the SWTP's preliminary treatment facilities are expected to remove most large particulate grit and are designed to produce post- Declaration of Dan Harmon 4 preliminary treatment turbidities of 5 -10 NTU for introduction to the membrane filtration system. 13.At source water turbidities above 1,000 NTU, however, performance of the preliminary treatment facilities will be diminished, and will likely produce water of a quality unacceptable for introduction to the membrane filtration system. The result will be a shutdown of the SWTP and the inability of the SWTP to produce potable water. The preliminary treatment facilities being constructed will likely reduce the amount of time the SWTP will be shut down during periods of high turbidity. However, it will likely only enable the City to reduce required shutdown duration and will not completely avoid treatment plant shutdowns. 14.Following significant wildfires, I have observed at other facilities that the raw water is essentially not treatable for time periods of high runoff with any conventional treatment process due to high color, high TOC, and elevated iron and manganese levels. The improvements at the SWTP will reduce the amount of time any shutdown may need to occur but will not eliminate the risk that total plant shutdowns will occur due to wildfire related runoff. 15.Wildfire may cause additional challenges to the City's water collection system. First, the initial flushes of debris and ash created by a wildfire, along with any sediment originating from newly vulnerable hillsides, could Declaration of Dan Harmon 5 potentially overwhelm the City's existing raw water intakes on Sourdough and Hyalite creeks. Second, the impoundment pool behind the dam on Hyalite Creek could potentially be filled with sediment, ash and debris, restricting flow to the intake. In addition, the fish ladder on Hyalite Creek maybe clogged by debris in quantities that cannot be removed by the existing flushing system. 16.Over time, sedimentation of the source water will decrease, but the problem will persist until the forest vegetation can be restored. This process can take up to a decade or longer. 17.The magnitude of water quality changes will be dependent on the extent of the fire in the watersheds and the intensity of the burn, as well as the severity and frequency of runoff events subsequent to the fire. 18.To most effectively minimize impact to the SWTP operations, I recommend the City support management of the City's watersheds to minimize the risk, potential, and severity of wildfire events severe enough to create significant sediment, colors, and metals loading in the raw water supply. EXECUTED on this 5`h day of December, 2012, in Missoula, Montana. an H on, P.E., HDR, Inc. Declaration of Dan Harmon 6