HomeMy WebLinkAbout12- Amicus Brief Nine Circuit BMW w/Exhibits No. 14-35069
(cross-appeal No. 14-35123)
IN THE UNITED STATES COURT O
FOR THE NINTH CIRCUI
ALLIANCE FOR WILD,
NATIVE ECOSYSTEM
Plaint
V.
FAYE KRUEGER, Regional Forester;
AGRICULTURE, and U.S. FISH AND WILDLIFE SERVICE,
Defendants — Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
Civil Case No. 12-55
UNOPPOSED MOTION FOR LEAVE TO FILE
BRIEF OF AMICUS CURIAE CITY OF BOZEMAN AND
BRIEF IN SUPPORT OF FEDERAL DEFENDANTS
Greg S. Sullivan
BOZEMAN CITY ATTORNEY
P.O. BOX 1230
Bozeman, MT 59771-1230
Telephone: (406) 582-2309
Fax: (406) 582-2302
gsulIivanCc bozeman.net
MOTION
Pursuant to Federal Rules of Appellate Procedure 27 and 29, The City of
Bozeman (City) respectfully moves for leave to file an amicus curiae brief in
support of Defendants/Appellants, The United States Forest Service (USFS).
Pursuant to Ninth Circuit Rule 29-3, counsel for the City contacted counsel for
each of the parties in this case to ascertain their positions on the filing of an amicus
curiae brief by the City. All parties have stated they consent to the filing of the
City's brief.
The City has an interest in this proceeding which justifies its appearance as
amicus curiae. The City is directly influenced by and related to the Bozeman
Municipal Watershed Project (Bozeman Project); one of the two projects
challenged by Plaintiffs/Appellees. The two watersheds located within the
Bozeman Project, Sourdough Creek and Hyalite Creek watersheds, collectively
provide 80% of the source water for the City. The City owns approximately 4,000
acres scattered throughout ten sections of land in a checkerboard pattern within the
Sourdough Creek Watershed. The remaining land is federally owned and managed
by Defendants/Appellants. Defendants/Appellants have worked collaboratively
with the City on the Bozeman Project to address fuel reductions in these
watersheds to reduce the imminent risk of catastrophic wildfires to insure the
City's ability to uphold its legal obligation to provide safe, adequate and reliable
1
potable water to its citizens. The City's interest in the Bozeman Project and the
injunction on appeal is paramount.
The proposed amicus brief attached herein is desirable because it will assist
to inform and provide context to the Court of the harms facing the City and its
residents, and that these harms and the public interest should be strongly
considered when weighing competing interests when considering an injunction of
the Bozeman Project.
Therefore, proposed amicus curiae City of Bozeman, respectfully requests
that the Court grant its' motion for leave to file the accompanying amicus curiae
brief.
TABLE OF CONTENTS
STATEMENT REGARDING FUNDING AND AUTHORSHIP ...........................3
INTRODUCTION.....................................................................................................4
INTERESTS OF AMICUS CURIAE .......................................................................5
ARGUMENT ............................................................................................................6
1. The City has a legal duty to provide water to its residents, businesses, and
civicinstitutions. ........................................................................................... 6
I1. Hyalite and Sourdough Creeks have been and will continue to be the City's
primary source of water................................................................................ 7
2
III. Real threats exist to the City of Bozeman's Sourdough Water Treatment
Plant. .............................................................................................................9
A. Recent fire activity in the area of municipal watersheds. ............................. 9
B. Plan for fuel reduction on City lands within watersheds........................8
IV. It is in the public interest to actively engage in fuels reduction in the forests
around the municipal watersheds and the public interest should be weighed
when deciding to issue an injunction of the project. .............................. 134-2
CONCLUSION ....................................................................................................... 15
TABLE OF AUTHORITIES
Cases
Hecht Co. v. Bowles,
321 U.S. 321, 329-30 (1944)............................................................................. 10
Tenn. Valley Auth. v. Hill,
437 U.S. 153 (1978).......................................................................................... 10
United States ex rel. Greathouse v. Dern,
289 U.S. 352 (1933).......................................................................................... 10
Federal Statutes
42 U.S.C. § 300 ......................................................................................................... 7
State Statutes
Mont. Code Ann. § 7-13-4402 .................................................................................. 6
Mont. Code Ann. § 7-13-4406 ..................................................................................6
Mont. Code Ann. § 75-6-101 .................................................................................6,7
STATEMENT REGARDING FUNDING AND AUTHORSHIP
The City is a municipal government located within the State of Montana and
thus no Corporate Disclosure Statement pursuant to Rule 26.1 is required.
3
Pursuant to Federal Rules of Appellate Procedure 29(c)(5), neither party or party's
counsel authored the City's Brief of Amicus Curiae in whole or in part. Neither
party nor party's counsel contributed money that was intended to fund preparing or
submitting of the City's Brief of Amicus Curiae. No individuals or entities
contributed money that was intended to fund preparing or submitting of the City's
Brief of Amicus Curiae. The Bozeman City Commission, by duly authorized
motion on June 2, 2014, authorized the undersigned to file this brief and the
motion it accompanies on behalf of the City of Bozeman.
INTRODUCTION
One of the most critical services the City of Bozeman (City) provides to its
over 39,000 residents, businesses, and civic institutions is the provision of
adequate and safe potable water.
Through this Brief the City will provide information that: (i) the watersheds
located within the enjoined Bozeman Project area are the City's primary source of
potable water; (ii) illustrates the City's legal duty to provide water; (iii) establishes
that real threats to these watersheds exist potentially impacting the City's ability to
provide water; and (iv), given the reasons previously listed, the threats to the City's
water supply should be strongly considered and given deference when weighing
the harms in the context of the Endangered Species Act (ESA).
4
INTERESTS OF AMICUS CURIAE
The Bozeman Municipal Watershed Project (Bozeman Project), one of two
projects challenged and enjoined by the pending litigation, involves a plan to
reduce fuels within the national forest that encompass the City's municipal
watersheds. The Bozeman Project will occur within the Sourdough Creek (aka
"Bozeman Creek") and Hyalite Creek watersheds which lie to the south of the City
in the northern end of the Gallatin Range. Collectively, these watersheds provide
approximately 80% of the source water for the City's municipal water system.
The City has made significant investments over time in water collection,
storage, and treatment in Sourdough and Hyalite, which indicates these watersheds
have been, are, and will continue to be critical sources of water for the City for
decades to come. The City's interest in the Bozeman Project is grounded in the
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 for consumption.
The largest threat to the watersheds and the City's ability to meet its' legal
obligation to provide an adequate and safe potable water supply, is wildfire. The
forests in these watersheds are in need of fuel reduction treatment to help avoid a
5
catastrophic wildfire. The City believes the Bozeman Project is necessary to
address this threat.
ARGUMENT
I. The City has a legal duty to provide water to its residents,
businesses, and civic 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"). In Montana, municipalities must acquire water rights to
meet their growth and the City has proactively acquired rights in Sourdough and
Hyalite watersheds due to the quality of the water and the proximity to existing
infrastructure.
6
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.
Il. Hyalite and Sourdough Creeks have been and will continue to be
the City's primary source of water.
Sourdough Creek and Hyalite Creek lie to the south of the City in the
northern end of the Gallatin Range. 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.
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. Id., ¶7. The City's remaining water source is located on
the City's north side in the Bridger Mountains. Id.
The City's interest is based on the value its citizens place in
Hyalite/Sourdough watersheds for recreation, wildlife, clean air, and, perhaps most
critically, clean water. To protect and enhance the City's interests, it has made
significant investments in water collection, storage, and treatment in Sourdough
and Hyalite which reflect just how critical these sources of water for the City will
7
be for decades to come. The City first began collecting and treating water from
Sourdough Creek in 1917 and from Hyalite Creek in the mid 1950s. Id., ¶8. 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., ¶9.
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.
The City treats the water collected from these watersheds at the Sourdough
Water Treatment Plant (SWTP) located adjacent to Sourdough Creek. In 2011, the
City began construction on a $43,000,000.00 project to make significant
improvements to the SWTP. Improvements to the SWTP included addressing
potentially severe decrease in source water quality caused by wildfire and filtration
of water significantly impacted by wildfire debris and run-off. See generally
Amicus Exhibit 2, Declaration of Dan Harmon, 2012, as filed in United States
District Court Civil Case No. 12-55. The improved SWTP is now fully
operational; however the ability of the SWTP to handle wildfire impacted water is
not unlimited. Id.
Finally, the City recently completed an Integrated Water Resource Plan
(IWRP) the purpose of which is to explore, evaluate, and prioritize the range of
8
alternatives available to address anticipated water supply challenges for the City.
Amicus Exhibit 1, ¶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, and providing for the health and
safely of the citizens. Id.
III. Real threats exist to the City of Bozeman's Sourdough Water
Treatment Plant.
A. Recent fire activity in the area of municipal watersheds.
The current state of the forest, fuel conditions, and risk of wildfire are
accurately described in the Defendant/Appellant's First Brief on Cross-Appeal.
(See First Brief on Cross-Appeal for the Federal Defendants (Fed. Def. First Brief)
pg. 18-20). Excerpts from the Record cited by Defendant/Appellants include
findings from a risk assessment of the Bozeman Municipal Watershed in 2003.
This assessment indicates "fuel conditions within the Municipal watershed posed
risks to the municipal water supply in the event of a wildfire." Id. at 19 citing ER
13.1. In August, 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. Amicus Exhibit 1, ¶13. The upper
eastern reaches of the Storm Castle drainage share several miles of a subalpine
9
ridge with the Hyalite Creek watershed. In total, the Millie Fire burned 10,515
acres including lands adjacent to the boundary of the Hyalite Creek watershed. Id.,
¶14.; See Amicus Exhibit 3 (illustrating the relationship between the 2012 Millie
Fire perimeter, 2013 fire perimeters, and the Hyalite and Sourdough watersheds).
Two smaller wildfires started the following year in 2013: one within the
Hyalite Creek watershed, the other on the southern edge of the
Sourdough/Bozeman Creek watershed. Amicus Exhibit 1, ¶15. While conditions
allowed for the fires of 2013 to be contained quickly, they illustrate just how
vulnerable the watersheds are to wildfire.
As noted, the improvements to the SWTP were made with wildfire in mind;
however, the ability of the SWTP to handle wildfire affected water is not
unlimited. Amicus Exhibit 2, ¶¶11-15. Wildfire can cause increases in sediment
load and turbidity of water, amongst other issues. Id., ¶8. While the SWTP has
been improved to handle turbidities up to 1,000 NTU (nephelometric turbidity
units), studies have shown in the western United States, levels of turbidity in
waters affected by sedimentation caused by wildfire can increase to a possible
range of 3,500 to 31,000 NTUs. Id., ¶9, 12. Following a fire, water quality
changes to source water can last for five to ten years. Id., ¶11. The City has done
what it can to prepare for catastrophic wildfire by improving the SWTP, but
addressing fuel reduction is essential.
10
It is clear runoff from fires such as the Millie fire can have a detrimental
effect on the City's ability to treat source water. Id., ¶¶ 10 - 17. These fires, so
close to the City's watersheds, demonstrates the critical nature of the Bozeman
Project. It is not a question of if wildfire will occur in the watersheds within the
Bozeman Project, but rather a question of when and how severe.
B. Plan for fuel reduction on City lands within watersheds.
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, ¶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 be treated by the City's then existing water
treatment plant which is one of the reasons why substantial funds were invested to
improve the SWTP. 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
11
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
Gallatin National Forest (GNF) to develop a 2005 Memorandum of Understanding
(MOU). ER 353; ER359. 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:
• 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.
Id.
The Bozeman 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 which
will be managed in conjunction with the Bozeman Project. Should the Bozeman
12
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, ¶ 16.
IV. It is in the public interest to actively engage in fuels reduction in
the forests around the municipal watersheds and the public
interest should be weighed when deciding to issue an injunction of
the project.
While in the context of issuing an injunction under a claim of a violation to
the ESA, the Court is not entirely stripped of its discretion to take into account
harms to anything other than the endangered species.
As the Defendant/Appellants argue, the district court interpreted Tenn.
Valley Auth. v. Hill as prohibiting a court from exercising any discretion to
consider the public interest when determining whether to issue an injunction. Fed.
Def. First Brief pg.62, Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978). What the
district court did not consider is how this reading of Hill fails to consider the
various levels of impact a project can have on a species.
In his dissenting opinion in Hill, then Associate Justice William Rehnquist
stated, This Court has specifically held that a federal court can refuse to order a
federal official to take specific action, even though the action might be required by
law, if such an order"would work a public injury or embarrassment" or otherwise
"be prejudicial to the public interest." Id. at 213, citing United States ex rel.
13
Greathouse v. Dern, 289 U.S. 352, 360. Justice Rehnquist directed the Court to
Hecht Co. v. Bowles:
"The essence of equity jurisdiction has been the power of the Chancellor to
do equity and to mould each decree to the necessities of the particular case.
Flexibility rather than rigidity has distinguished it. The qualities of mercy
and practicality have made equity the instrument for nice adjustment and
reconciliation between the public interest and private needs as well as
between competing private claims."
Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1944).
In Hill, an entire species would have been eliminated had the Court not
issued an injunction. Irreparable harm was imminent. Here, the biological
opinions concluded the enjoined projects would have short-term adverse impacts
on a small portion of the area designated as lynx critical habitat. Fed. Def, First
Brief pg. 65, citing ER 388, 972-73 (emphasis added). The interests of the public
are adequate and safe potable water, as well as forests that are properly managed to
reduce the risk of catastrophic wildfires. These interests benefit the health and
safety of the citizens of Bozeman. The City agrees the scales should be tipped in
the species favor when irreparable harm is certain. However, when the harm is
minimal and temporary, as is the case here, courts can and should consider the
harm to other public interests if an injunction is issued. The scales may be tipped
in favor of protected species, but they must still be weighed against the public
interest. This Court can and should, as has been suggested by other parties to other
14
courts, "view the endangered species act `reasonably' and hence shape a remedy
`that accords with some modicum of common sense and the public weal."' Hill,
437 U.S. at 194. In the present case, it is clearly common sense to allow the
Bozeman Project, because of its limited, short-term, adverse affect on lynx habitat,
to move forward due to the need for the citizens of Bozeman to have adequate and
safe potable water. Further delay of only increases the need for the Bozeman
Project as fuel conditions worsen each season. Amicus Exhibit 1, ¶17. As such,
the City encourages the Court to consider the public interests of health and safety
for which the Bozeman Project has been planned and balance the scales in favor of
the public health and safety by lifting the injunction on the Bozeman Project.
CONCLUSION
The City has taken significant steps on its own to ensure it can meet its legal
obligation and provide its citizens with adequate and safe potable water. The City
has invested millions of dollars to acquire rights, improve its ability to treat the
water gathered with improved infrastructure, and by working collaboratively with
the GNF to address reducing fuels threatening the municipal watershed in a
coordinated way. These efforts and the need for the Bozeman Project to allow for
the City to provide for its citizens cannot and should not be ignored. Too much is
at stake to not move forward with the Bozeman Project. For the foregoing
15
reasons, the City of Bozeman as Amicus Curiae respectfully request this Court
reverse the district court as to the injunction of the Bozeman Project and allow the
project to proceed without further review.
Respectfully submitted on this, the 19th day of August, 2014.
lsl Gregory S. Sullivan
GREGORY S. SULLIVAN
Bozeman City Attorney
CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 32(a)(7)(c) that this motion and
brief are proportionately spaced, have a typeface of 14 points or more and contain
3,432 words. I used Microsoft Word 2007.
lsl Gregoa S. Sullivan
GREGORY S. SULLIVAN
Bozeman City Attorney
P.O. BOX 1230
Bozeman, MT 59771-1230
Telephone: (406) 582-2309
Fax: (406) 582-2302
gsullivan@bozeman.net
16
CERTIFICATE OF SERVICE
I hereby certify that on August 19, 2014, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit using the appellate CM/ECF system.
I certify that to my knowledge all participants in this case are registered
CM/ECF users and service will be accomplished by the CM/ECF system.
ls/ Gregry S. Sullivan
GREGORY S. SULLIVAN
Bozeman City Attorney
P.O. BOX 1230
Bozeman, MT 59771-1230
Telephone: (406) 582-2309
Fax: (406) 582-2302
gsullivan@bozeman.net
17
No. 14-35069
(cross-appeal No. 14-35123)
AMICUS EXHIBIT 1
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
UNITED STATES DISTRICT COURT OF APPEALS,
NINTH CIRCUIT
ALLIANCE FOR THE WILD )
ROCKIES; and NATIVE ) No.: 14-35069
ECOSYSTEM COUNCIL, )
Plaintiffs - Appellees, )
DECLARATION OF CRAIG
CRAIG WOOLARD, Ph.D., P.E.
vs. )
FAYE KRUEGER, )
Regional Forester, U.S. )
DEPARTMENT OF )
AGRICULTURE, U.S. FISH AND )
WILDLIFE SERVICE, )
Defendants —Appellants.)
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
DECLARATION OF CRAIG WOOLARD
1
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 nearing
completion 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.
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
DECLARATION OF CRAIG WOOLARD
2
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 at the foot
of 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, over the past 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.
1 O.The City recently completed 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
DECLARATION OF CRAIG WOOLARD
3
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.
11.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
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.
DECLARATION OF CRAIG WOOLARD
4
12.In 2011, the City began construction of significant improvements to the
SWTP after years of engineering and financial planning. The improvements
were completed earlier this year and the SWTP plant is now online.
13.On 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. In total, the Millie
Fire burned 10,515 acres including and burned forest up to the boundary of
the Hyalite Creek watershed.
15.In 2013, two smaller wildfires burned in the vicinity of the watersheds; one
within Hyalite Creek Watershed, the other on the northern border of the
Sourdough Creek Watershed.
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, or should the BWM
DECLARATION OF CRAIG WOOLARD
5
Project continue to see any delay, the City will seek to contract for the
management of its lands in conjunction with the GNF's process.
17.Continued delay of the Project is counter to the interests of the City of
Bozeman because continued delay means the risks associated with wildfire
in these watersheds, specifically fuel levels, will continue unabated.
18.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 19t" day of August, 2014 in Bozeman, Montana.
CraigAloolard, Ph.D, P.E.,
City of Bozeman Public Works Director
DECLARATION OF CRAIG WOOLARD
6
No. 14-35069
(cross-appeal No. 14-35123)
AMICUS EXHIBIT 2
�:t' �� .r ►►�` 4� ';t �k "JCL'` f � ��• •,f� t
-- '°sly' � - �> > ' •
� `fEii.lAfiFri i. •.v:19•'s°rw�`/'� !��SJM�' 7'�
..�E�;f � � �_�nxni�iy[���u {,a �_ � Y r 'gS•y�..0..
OR
CW�y.i �i �11 �� ��.°aE�y .CS f{'i3'y,S T_2� o �•_'Y ` ;j�
!l,g° ... ► _,ire sii: J ,' ,` .A '[Y-, �,�• I
M• �°rR� a ��, �> is ��• _,' - � i
t•.� ' (( {` T�'1• 3 j• [�..-•� it _ t.° = /i _•��,
- < � �� .�Yr�� ',�`�%r'r"-fir- iEir. � ;i•-••r ,b • .
• �� .. � �! ?►� �� e, r fir. - - - - --
,s �^
3 I,'
S. N 'e
it ♦ i ..� d+ �' / e.�( ra .• c f ¢���:I.'st, i
s� fur • ,� .� ,r ;'4.?!'e' a .
_ _ 9• t Y d1:. ��•y
No. 14-35069
(cross-appeal No. 14-35123)
AMICUS EXHIBIT 3
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, ) Case No.: CV-12-55-M-DLC
Plaintiffs, )
DECLARATION OF DAN
VS. ) HARMON, P.E.
FAYE KRUEGER, et al., )
Defendants )
AM l W5 E�x Al b lr 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 (S WTP) 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).
1 O.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 5t' day of December, 2012, in Missoula, Montana.
an H rmon, P.E.,
HDR, Inc.
Declaration of Dan Harmon
6