Case 3:18-cv-00437-PK Document 7 Filed 06/25/18 Page 1 of 15

LAWRENCE B. BURKE' OSB #892082 [email protected] AARON K. STUCKEY, OSB #954322 [email protected] DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, 97201-5610 Telephone: (503) 241 -2300 Facsimile: (503) 778-5299

THOMAS V. CUPANI, OSB #924654 Icup ani@cityo fs al em. net CITY OF SALEM 555 Liberty St. SE, Room 205 Salem, Oregon 97301 Telephone: (503) 588-6003 Facsimile: (503) 361 -2202

Attorneys for City of Salem

IN THE LTNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

NORTHWEST ENVIRONMENTAL Case No. 3 : 1 8-cv-00 437 -PK DEFENSE CENTER, WILDEARTH GUARDIANS, ANd NATIVE FISH Proposed Intervenor-Defendant City of soCIETY, Salemts PLAINTIFFS, MOTION TO INTERVENE UNDER FED. R. CIV. P.24 v Request for Oral Argument U.S. ARMY CORPS OF ENGINEERS and NATIONAL MARINE FISHERIES SERVICE, DEFENDANTS

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LR 7.1 CERTIFICATION

In compliance with L.R. 7-1, the parties have made a good faith effort through personal or telephone conference to resolve the dispute and both plaintiffs and defendants have indicated they have yet to decide and will take a position on intervention after reviewing this motion. MOTION

The City of Salem ("the City") respectfully moves to intervene as of right under Fed. R.

Civ. P. 24(a) as a defendant in this action. In the alternative, the City requests leave to intervene by permission under Fed. R. Civ. P. 24(b). The City has conferred with counsel for the existing parties before filing this motion and the parties asked to review the City's filed motion before deciding whether to oppose it.

The City bases this motion on the Legal Memorandum in Support of City of Salem's

Motion to Intervene Under Fed. R. Civ. P. 24;the Declaration of Lacey Goeres-Priest and attached exhibit; and the Complaint.

The City also accompanies this motion with Proposed Intervenor-Defendant City of

Salem's Answer. See Fed. R. Civ. P.2a@).

LEGAL MEMORANDUM I. INTRODUCTION

The ultimate resolution of this lawsuit is likely to have a profound impact on the City of

Salem's drinking water supply, which relies on water quality and quantity controlled by Detroit

Dam. Defendant U.S. Army Corps of Engineers ('othe Corps") is currently conducting a public process to determine appropriate structural or operational changes to improve long-term water quality below Detroit . As a parlicipant in that process, the City continues to provide input on the Corps' preliminary plans to completely drain , which would substantially threaten the City's primary drinking water supply.

The Corps' proposal to construct a water temperature control structure at Detroit Dam- and drain Detroit Lake in the process-is not a done deal. The proposal is subject to the

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requirements of the National Environmental Policy Act ('NEPA"), which requires the Corps to

ooreasonable consider public input, environmental impacts, and alternatives" before making a final decision. The Corps anticipates issuing a Draft Environmental Impact Statement evaluating those considerations in 2019.

Yet, through this lawsuit, Plaintiffs seek to bypass that important and statutorily required public process. Plaintiffs allege that, under the 2008 Willamette Project Biological Opinion

("BiOp"), the Corps must construct and operate a temperature control structure at Detroit Dam by 2018. Complaint flfl 54, 64,85. Plaintiffs seek a declaration that the Corps' failure to do so is a violation of the agency's duties under the Endangered Species Act. Id. n A.

Plaintiffs' claims directly implicate the Corps' obligations at Detroit Dam under the

BiOp. In order to adjudicate those obligations, the Court will have to interpret the terms of the

BiOp, in turn influencing the NEPA process. As both a legal and practical matter, such a ruling could be conclusive. And, unless the City is allowed to intervene in this action, it is also possible that the existing parties will attempt to settle this lawsuit without the City's input, thereby predetermining the outcome of the NEPA process and directly affecting the City's vital interests in its drinking water supply.

Accordingly, the City asks the Court to grant the City intervention status.

The Court should grant intervention as of right under Fed. R. Civ. P. 24(a)because (1) the City timely filed this motion; (2) the City claims significantly protectable interests relating to the matters at the heart of the action; (3) disposition of the action may, as a practical matter, impair or impede the City's ability to protect these interests; and (4) the existing Defendants do not adequately represent the interests of the City and its citizens.

Alternatively, permissive intervention under Fed. R. Civ. P. 2a@) is appropriate because

(1) the Court has independent grounds for jurisdiction over the City, (2) the City timely filed this motion, and (3) the claims and defenses in this action of the existing parties and the City present common questions of law and fact.

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II. BRIEF STATEMENT OF FACTS

A. Endangered Species Act Consultation for the Willamette Project

Plaintiffs set forth their overview of the Endangered Species Act ("ESA") consultations for the Willamette Project in their Complaint. Complaint fll| 1-7, 29-80. For context, the City provides a brief overview of the BiOpt and this litigation.

In 2008, the National Marine Fisheries Service ("NMFS") issued the BiOp directing the

Corps to take various actions to reduce impacts of the Willamette Project on Upper Willamette

River Chinook and winter steelhead. For the City's purposes, the central issue in the BiOp is

NMFS's direction to the Corps to "investigate the feasibility of improving downstream temperatures and reducing [total dissolved gas] exceedances in the for ESA listed species." See Bi-Op at9-82. The BiOp identified a timeline for the Corps to (1) conduct feasibility studies, (2) "evaluate alternatives to achieve both temperature control and downstream fish passage," (3) "complete construction of any structural temperature control facilities by

December 2018,'and (4) "begin operation of permanent downstream temperature control at

Detroit Dam by March 2019." 1d NMFS identified Detroit Dam on the North Santiam River as the "highest priority dam for construction of a temperature control structure or operational changes to achieve temperature control." Id. (emphasis added).

B. The Corps' NEPA Process at Detroit Dam In2017,the Corps signaled its intent to move forward with changes at Detroit Dam. As required under NEPA, the Corps published its'Notice of Intent to Prepare an Environmental

Impact Statement for the Detroit Dam Downstream Passage Project" ("EIS Notice") in the o'scoping" Federal Register. 82 Fed. Reg. 55,830 Q'lov. 24,2017), The Corps solicited comments from the public to identify issues and alternatives to be considered during the Corps'

t The BiOp is publicly available through the NMFS website.

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development of the Environmental Impact Statement ("EIS"). Id. The Corps stated that it would consider operational as well as structural changes at Detroit Dam as part of the EIS. Id.

In January of this year, however, the Corps announced plans to build a 300-foot water temperature control tower at Detroit Dam. To construct the tower, the Corps proposes to completely drain Detroit Lake, behind the dam, for two or more years.z

C. The City's Interest in Detroit Lake and Detroit Dam Detroit Dam is approximately 45 miles upstream of the City's drinking water facility,

Geren Island. Declaration of Lacey Goeres-Priest fl 2, Ex. A. The dam is critical in regulating water quantity and quality necessary for the City to operate its water treatment facility. Id. Any structural or operational changes at Detroit Dam have the potential to significantly impact the

City's drinking water supply. Id. Draining Detroit Lake, even temporarily, would likely obliterate the City's drinking water supply. Id. For more than 75 years, the City has relied on the North Santiam River as its primary source of drinking water, which it provides to more than i90,000 residential and industrial/commercial customers, including the City of Turner, Suburban

East Salem Water District, and Orchard Heights Water Association. 1d,

The City's water treatment facility is highly sensitive to any changes in inflowing water quality or quantity . Id. Of particular concern, if river flows decrease below a minimum threshold, the intake at Geren Island will not function properly. Id. The City is gravely concerned that the Corps' proposal to drain Detroit Lake will decrease water flows below that minimum threshold, and the City will not be able to operate its water treatment facility. Id,

Additionally, the City is concerned that the Corps' proposal will impair downstream water quality, releasing sediment, contamination, and warm water from Detroit Lake. Id. As a result, the City may not be able to meet its Clean Water Act responsibility to implement the 2006

' See, u.g,, Zach Urness, "Major dam project could empty Detroit Lake for years, in fish recovery plan," Statesman Journal (Jan. i3, 2018), available at https://www.statesmar{ournal.corn/story/news/201B/01/13/detroit-lake-oregon-reservoir-ernpty-anny- corDs-ensineers-salmon-steel lread*low-water/1 0 1 5 1 8000 1/

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Willamette Basin Total Maximum Daily Load ("TMDL"), or its responsibilities under the Safe

Drinking Water Act. Id.

Even if the Corps' proposal does not render the City's water treatment facility completely inoperable, the City may still be unable to provide sufficient water to meet its customers' needs.

1d Restricting water use would create significant hardships for Salem water customets, especially commercial and industrial customers. Id. It would also cause the City to lose utility revenues necessary for the City to maintain its utility infrastructure, likely leading to substantial rate increases for water customers. 1d,

In addition, the City holds municipal water rights in the North Santiam River. Id. n3.

Decreased flows, as a result of draining Detroit Lake, would likely interfere with the City's legal. water rights. Id.

Because of these concerns, the City is actively participating in the Cotps' NEPA process for Detroit Dam. See id, \2,8x. A. On January 19,2018, the City submitted a scoping comment, alerting the Corps of the City's vital interest in Detroit Dam. Id. The Corps is required to consider and respond to the City's comments as part of its decision making process.

See 40 C.F.R. $ 1503.4. NEPA also requires the Corps to consider "reasonable alternatives" to its proposal to construct a water temperature control structure at Detroit Dam and to drain Detroit

Lake in the process. See 40 C.F.R. $ 1502.14(a). The Corps expects to issue its draft

Environmental Impact Statement ("EIS") evaluating those alternatives in2019. EIS Notice, 82

Fed. Reg. at 55,830.

D. Plaintiffs' Citizen Suit Against the Corps Against that backdrop, Plaintiffs filed this citizen suit against the Corps, seeking to expedite and influence the Corps' decision making at Detroit Dam. Plaintiffs sent the Corps a notice of intent to sue three weeks before the Corps announced that it would prepare an EIS to evaluate potential changes at Detroit Dam. Complaint fl 1 l. Then, in March 2018, Plaintiffs filed this lawsuit, alleging violations of the Endangered Species Act.

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Although Plaintiffs' lawsuit broadly targets the federal government's operations of the

Willamette Project, the Complaint specifically singles out Detroit Dam as a basis for the Corps' alleged violations. In their notice of intent to sue, Plaintiffs alleged that, although the Corps "has agreed to provide temperature control at Detroit Dam, the agency is not scheduled to construct and operate the necessary structures for at least several more years, well beyond the December

2018 deadline." See id, Plaintiffs' Complaint followed, alleging that the BiOp requires the

Corps to construct a temperature control structure at Detroit Dam and that the Corps' current proposed schedule "will exceed the deadline by more than four years for construction and operation of a temperature control structure at Detroit Dam." Id. n 64. Plaintiffs seek injunctive relief and a declaration that the Corps' failure to timely construct the temperature control structure is a violation of the Corps' obligations under Section 7(a)(2) of the ESA, 16 U.S.C. $

1536(a)(2). Id. n 82, Prayer for Relief. The Corps has requested, and this Court has granted, an extension to file its answer on or before July 17 ,2018. See Dockets 1, 6.

On May 23,2018, the City became aware that Plaintiffs and the Corps may be pursuing a settlement in this action. As a result, the City took action to file this motion to intervene. ilI. ARGUMENT

A. The Court Should Grant Intervention as of Right under Rule 24(a). Under Rule 24(a), "[o]n timely motion, the court must permit anyone to intervene who:

... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parlies adequately represent that interest."

The Ninth Circuit applies a four-part test under Rule 24(a):

"(1) the motion must be timely; (2) the applicant must claim a 'significantly protectable' interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action." Page7 - CITY OF SALEM'S MOTION TO INTERVENE DAVIS WRIGHT TREMAINE LLP 4850-4418-2378v.9 0783034-000011 1300 S.W. FifthAvenue, Suite 2400 Portland, Orego n 97 201 -5610 (503) 241-2300 main ' (503) 7'78-5299 fax Case 3:18-cv-00437-PK Document 7 Filed 06/25/18 Page 8 of 15

Wilderness Soc'y v. U.S. Forest Serv.,630 F.3d 1173,11,77 (9thCir.2011) (citation omitted). oonormally In evaluating whether a proposed intervenor meets this test, the Ninth Circuit followfs] 'practical and equitable considerations' and construefs] the Rule 'broadly in favor of proposedintervenors."' Id. atI,779 (quoting UnitedStatesv. Cityof LosAngeles,288F.3d391,

397 (9th Cir. 2002)). "A liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts." City of Los Angeles,288 F.3d at397-98. In addition, courts ootake all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed fpleading] ... in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections. " Sw. Ctr. for Biological Diversity v. Berg,268 F.3d 810, 820 (9th Cir.2001).

1. The Cify Timely Filed this Motion to Intervene.

In evaluating timeliness, the Court should consider: (1) "the stage of the proceeding," (2)

"the prejudice to other parties," and (3) "the reason for and length of the delay." Day v,

Apoliona,505 F.3d 963,965 (9th Cir. 2007) (permitting intervention two years into case; "mere lapse of time, without more" does not bar intervention). The City's motion satisfies all three factors. ' The City has filed this motion as early in the proceedings as reasonably possible.

Plaintiffs filed their Complaint just three months ago, and the Court has extended Defendants' deadline to file an answer until July I1,2018. See Dockets 1, 6. No factual or legal issues have been developed, and the Court has not held any dispositive hearings or issued any substantive rulings. As a result, the City's motion is timely. See, e.g.,Idaho Farm Bureau Fed'nv. Babbitt,

58 F.3d 1392,1397 (9th Cir. 1995) (motion to intervene timely when filed four months after complaint's filing and one month after plaintiff moved for injunction but before court held hearing or ruled on substantive matters); Fundfor Animals, Inc. v. Norton,322F.3d728,735

(D.C. Cir. 2003) (motion to intervene timely when filed two months after the complaint and before defendants filed an answer).

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In addition, the City's intervention at this early stage will not prejudice the other parties or disrupt or delay the proceedings. See Citizens for Balanced Use v. Mont. Wilderness Ass'n,

647 F .3d 893, 897 (9th Cir. 20lI) (no prejudice where motion to intervene filed 'oat an early stage of the proceedings"). Moreover, the City's concerns directly involve interpretation of the

2008 BiOp, the key document that Plaintiffs have put at issue. Thus, the City "will not create delay by 'injectfing] new issues into the litigation."' Doy,505 F.3d at965; see also WildEarth.

Guardians v, Salazar,272F.R.D.4, 13 (D.D.C. 2010) (intervention granted early in proceedings where "Plaintiffs cannot credibly claim ... that they would be prejudiced by fthe movant's] intervention at this juncture"); Greenpeace Found. v. Daley, I22 F . Supp. 2d IIl0, 1 1 14 (D.

Haw. 2000) (intervention permitted less than three months after complaint filed because allowing o'intervene the movants to at this point in the litigation would not prejudice Plaintiffs or

Defendants").

Because an answer or responsive pleading has not even been filed, the City's motion to intervene is timely.

2. The City Has Significantly Protectable Interests.

The Ninth Circuit's "significantly protectable interest" test'ois primarily a practical guide to disp'osing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process."' Wilderness Soc'y,630 F.3d at lI79 (citation omitted).

"[A] prospective intervenor's assefied interest need not be protected by the statute under which the litigation is brought to qualify as 'significantly protectable' under Rule 24(a)(2)." Id.

(quoting Sierra Club v. U.S. Env'tl Prot. Agency,995 F .2d 1478, 1481, 1484 (9th Cir. 1993))

(emphasis added). ooRather, '[i]t is generally enough that the interest is protectable under some law, and that there is a relationship between the legally protected interest and the claims at

o'a ohas issue."' Id, (quoting Sierra Club,995 F.2d at 1484). Thus, prospective intervenor a sufficient interest for intervention purposes if it will suffer a practical impairment of its interests as a result of the pending litigation."' Id. (quoting CaL ex rel. LoclEer v. United States, 450 F.3d

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436,441 (9th Cir. 2006)). The City has significantly protectable interests to justify intervention as of right:

First, the City stands to be impacted as a result of the practical dynamics of this lawsuit.

Plaintiffs seek to compel the Corps to implement temperature control measures at Detroit Dam as quickly as possible to meet the deadlines under the BiOp. Complaint'lTfl 60, 64. Plaintiffs allege that the Corps can meet its obligations by implementing those measures or reinitiating an onerous, time-consuming, and contentious consultation process under the ESA. Id.fll84-85.

For its part, the Corps has every incentive to marshal its current temperature control structure proposal through the NEPA process, to moot aspects of this lawsuit and avoid a new consultation process. The lawsuit also raises the risk that the parties will settle, effectively determining the fate of Detroit Lake outside the public process and frustrating the City's ability to meaningfully participate in that process.

Second, the City stands to lose from a judicial declaration of the Corps' obligations at

Detroit Dam. Plaintiffs have placed the 2008 BiOp squarely at issue, alleging that it mandates a temperature control structure at Detroit Dam. Id. \ 64. Meanwhile, the Corps is currently advocating, through the NEPA process, for a temperature control structure at Detroit Dam. The

City does not agree that the 2008 BiOp requires the Corps to install a temperature control structure at Detroit Dam. Although the Corps has not yet filed its answer, the City is concerned that the existing Defendants in this case are not positioned to dispute Plaintiffs' interpretation of the 2008 BiOp, a legal question in which the City has a significant interest. There is a real risk that the Courl will be asked to rule on this issue and, absent the City's participation in this lawsuit, will not hear opposing arguments on this issue. Such a ruling from this Courl could shape the outcome of the NEPA process, as both a practical and a legal matter.

Given those dynamics, the claims alleged in this lawsuit put the City's water rights and drinking water supply at risk. As previously explained, any action at Detroit Dam threatens to impact the City's ability to provide a sufficient quantity of safe drinking water to the

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approximately 190,000 people who depend on it. Courts have routinely granted intervention to local governments under similar circumstances. See, e.g., Lower Ark. Valley Water Conservancy

Dist. v. US., No. 07 -cv-2244 (D. Colo. Dec. 1 1,2007) (granting intervention to City of Aurora to protect its water supply, as party to challenged contract with United States for utilization of water from reclamation project); The Muckleshoot Indian Tribe v. Nat'l Marine Fisheries Servs.,

No. C03-3775P (W.D. Wash. Apr. 21,2004) (granting intervention to City of Seattle in challenge to Biological Opinion where City's alleged interests included, among other things, continued use of its water right claim, contractual obligations to supply watet, use of hydroelectric facility, and management of the portion of its watershed). Furthermore, the City's projected loss in utility revenue is a concrete economic interest tied to the subject matter of this litigation-the type of economic interest for which the Ninth Circuit has stated intervention is appropriate . See []nited States v. Alisal Water Corp.,370 F3d 915, 919 (9th Cir. 2004) (stating that economic interests must be "concrete and related to the underlying subject matter of the action").

3. Disposition of the Action Will Impair or Impede the City's Ability to Protect Its Interests. A proposed intervenor under Rule 24(a) must show that disposition of the action will put the intervenor at a practical disadvantage in protecting its interests. See Forest Conservation

Council,66 F.3d at 1498. The Court should allow intervention "[i]f an absentee would be substantially affected in a practical sense by the determination made in an action." Citizens for

Balanced Use,647 F.3d at 898 (quoting Fed. R. Civ. P. 24 advisory committee's note).

As previously stated, this litigation is likely to practically influence the Corps' NEPA process for Detroit Dam, which is the administrative process in place to protect the City's interests. And, beyond those considerations, this Court's legal determinations may place the City at a practical disadvantage in protecting its interests. If this Courl opines on the Cotps' obligations at Detroit Dam, and does so without the City's involvement, the City would have no

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way to appeal any ruling that effectively requires the Corps to construct a water temperature control structure. See Michigan State AFL-CIO,103 F.3d at 1245 (permitting chamber of commerce to intervene where, among other things, non-party status would not protect chamber's ability to seek appellate review if original parties failed to appeal). On the other hand, if any of the existing parties were to appeal an adverse ruling from this Court, the City would face a practical disadvantage in challenging the 2008 BiOp in another lawsuit, as an appellate courl's decision "[would] have a persuasive stare decisls effect in any parallel or subsequent litigation."

Llnited States v. Oregon,839 F.2d 635, 638 (9th Cir. 19S8). The Ninth Circuit has "said that such a stare deciszs effect is an important consideration in determining the extent to which an applicant's interest may be impaired." Id.

4, Defendants Inadequately Represent the City's Interests.

Courts in the Ninth Circuit consider several factors in determining whether an existing party will adequately represent an intervenor's interests. These factors include "(1) whether the interest of a present party is such that it will undoubtedly make all the intervenor's arguments;

(2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect." City of Los Angeles,288 F.3d at 398 (emphasis added) (citation ornitted). A proposed intervenor generally faces a minimal burden of establishing inadequacy of representation. See id, Whenthe government acts on behalf of its constituency, or when the present party and intervenor share the same interests, a presumption of adequacy exists. See

Citizens for Balqnced Use,647 F.3d at 898. But even under these circumstances, the Ninth

Circuit has "stressfed] that intervention of right does not require absolute certainty that aparty's interests will be impaired or that existing parties will not adequately represent its interests." /d. at 900. Rather, the intervenor need only show the existing parties "may not adequately protect their interests." Id. (emphasis added).

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Here, there is a substantial risk that the existing parties may not adequately protect the

City's interests. The Corps has not yet filed its answer, and so its precise position regarding the

BiOp and the Detroit Dam is unknown. As previously explained and as documented in the

City's comments (see Exhibit A to Declaration of Lacey Goeres-Priest), the City has fundamental concerns that the existing Defendants are not inclined or otherwise well-positioned to challenge Plaintiffs' legal position that the BiOp requires the Corps to install a water control structure at Detroit Dam. The existing parties also have every incentive to advocate for a water control structure-in the form currently proposed by the Corps-as the most expedient way to resolv_e this lawsuit and water quality concerns below Detroit Dam. The City does not dispute that water quality concerns must be addressed, but the NEPA process requires the Corps to fully consider a range of alternatives. Absent the City's intervention, there is a significant risk that this litigation will effectively force the Corps to implement a proposal that harms the City's water supply.

5. The Cify Can Demonstrate Article III Standing To Intervene. The City may ultimately want to file cross-claims against the Corps. Because the Corps has not yet filed its Answer, any cross-claims would be premature at this time. The City is prepared to demonstrate that it has Article III standing, in the event that the City seeks to add claims or relief different than those that Plaintiffs have requested. See Town of Chester, N.Y. v.

Laroe Estates, Inc.,I37 S. Ct. 1645,1651, 198 L. Ed. 2d 64 (2017) ("[A]n intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing.").

B. In the Alternativeo the Court Should Grant the City Leave to Intervene under Rule 24(b).

Under Rule 24(b)(1)(B), on a "timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact." In ruling on a motion for permissive intervention, "the court must consider whether the

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intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed.

R. Civ. P. 24(bX1)(B). Courts in the Ninth Circuit "may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action, have a question of law or a question of fact in common." City of Los Angeles,288 F.3d at 403. The City meets all three criteria.

First, the Court has independent grounds for jurisdiction over the City under 28 U.S.C. o'the $ 1367(a), which permits the Courl to exercise supplemental jurisdiction for intervention of additional parties." In addition, this case presents purely federal questions, over which this Court has jurisdiction under 28 U.S.C. $ 133 i. The Ninth Circuit has "clarif[ied] that the independent jurisdictional grounds requirement does not apply to proposed intervenors in federal-question cases when the proposed intervenor is not raising new fstate law] claims." Freedomfrom

Religion Found., Inc, v. Geithner, 644 F.3d 836,843-44 (9th Cir.2011) (explaining independent jurisdictional requirement intended to prevent proposed intervenors from "seekfing] to use permissive intervention to gain a federal forum for state-law claims over which the district court would not, otherwise, have jurisdiction").

Second, as discussed, see supra Part IILA.1., the City's motion is timely.

Third, the City's defenses and the main action have questions of law and fact in common.

At the heart of this lawsuit are legal questions about the requirements of the 2008 BiOp. The

City's position, that the 2008 BiOp does not require the Corps to construct a water temperature control tower at Detroit Dam, arises out of that legal question.

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IV. CONCLUSION

For the foregoing reasons, the City respectfully requests that the Court permit it to intervene under Rule 24.

DATED this 25th day of June,2018.

DAVIS WRIGHT LLP

By LAWRENCE B. BURKE, OSB #892082 la$')'burke@d*..corn AARON K. STUCKEY, OSB #954322 aaro nstuck e)' @dwt. -com Telephone: (503) 241-2300 Facsimile: (503) 778-5299

THOMAS V. CUPANI, OSB #924654 tcupAlri @c ityofsal em. net Telephone: (503) 588-6003 Facsimile: (503) 361-2202

Attorneys for City of Salem

Page 15 - CITY OF SALEM'S MOTION TO INTERVENE DAVIS WRIGHT TREMAINE LLP 4850-4418-2378v.9 0783034-000011 1300 S.W. Fiftlr Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 24t -2300 main' (503) 7 7 8-5299 fax Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 1 of 6

LAWRENCE B. BURKE, OSB #892082 [email protected] AARON K. STUCKEY, OSB #954322 [email protected] DAVIS WRIGHT TREMAINE LLP 1300 S:W: Fifth Avenue, Suite 2400 Portland Oregsn 9720\ -5610 Telephone: (503) 241-2300 Facsimile: (503) 778-5299

THOMAS V. CUPANI, OSB #924654 [email protected] CITY OF'SALEM 555 Liberty SI..SE, Room 205 Salem, Oregon 97301 Telephone: (503) 588-6003 Facsimile: (503) 361-2202 ' Auorneys for City of Salem

IN THE TINTTED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

N ORTITWEST ENVIRONMENTAL Case No. 3 : I 8-cv:0043.7-PK DEFENSE CENTE& WrLDE'{RTH GUARDIANS, And NATTVE FISH socIETY, DECLARATION OF' LACEY GOERES. PfuEST PLAINTIFFS, In Support of City of Salem's Moiion to Intervene .v.

U:S. ARMY CORPS'OF ENGINEERS and NATIONAL MARINE FISI{ERIES SERVICE,

DEFENDANTS.

' I, Lacey Goeres-Piieslj declare as folloWs:

. l. I am the'Water Quality Supervisor foi the City of Salem. I make this declaration on personal knowledge and in support of the City of Salem's Motion.to,'Intervene.

Pagd 1 - DECLARATTON OF LACEY GOERES-PRIEST rN SUPPORT OF Crry OF SALEM',S MOTTON TO INTERVENF, 4820-7611-274Jv.2 OzsrOg+-0OObt r levrS wRrcHT TREMATNE LLp .

. . Pprtland, .Oregon 9720I-561.0' Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 2 of 6

2. Attached as Exhibit A to this declaration is a true and correct copy of the City of

Salem's public scoping comments submitted January 19, 20i8, i4 response to the U.S. Army

Corps.of Engineers' "Notice of Intent to Frepare an Environmental Impact Statement for the

Detrqit Dilrn Downstream Passage Project," 82 Fed. Reg. 55,830 (Nov. 24,201,7).

3.. The City of Salem holds municipal water rights in the North Santiam River.

Decreased flows in the North Santiam River, as a result of draining Detroit Lake, would likely

interfere with. those water rights.

I declare under penaltlt of perjury under the laws of the State o.f Oregon that the for.egging is true and correct and that this D.eclarationwas executed'on June 75 2018, at

Salen1, Oregon.

By:

Page 2 - DECLI{RATION OF LACEY GOERES-PRIEST IN SUPPORT OF CITY OF SALEM'S MOTION TO INTERVENE 4820:7611:2747v.2 0783034400011 DAVIS WRICHT TREMAINE LLp

Portland,. Oregon 97201-5610 Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 3 of 6

clTy

YOUR, SERVICE

CIry MANAGER'S OFFICE 5S5LibertyStsE/Room!90r Salem,OR97301.3503 o (503)588-6255 o Fsx(503)588-6354

January 19,2018

Kelly Janes U,S, Army Corps of Engineers Attsntion: PM-E PO Box 2946 Portl and, Oregon 97 208-29 4 6

SUBJECTI Detroit Dam aud Lake Downstream Passage Project

Dear Ms, Janes;

This letter seryes as the City of Salem's public scoping comments for the oonstuction of projects that allow for downsheam juvenile fish,passage and temperatrue contol at Detroit Dam on the North Santiam River, The North Santiarn River is the City of Salem's p.rimary soruce of drinkling water for over 192,000 customers and th:ee wholesale oustomers: the City of Turner, Suburban 'Water East Salem Distriol and Orchard Heights Waler Association, The City of Salvm's drinking water treatment facility, Geren Island, is located 45 miles downstrea:n ftom Detoit Dam, Constuction of these two structures will likely cause significant impaots to the City's water freatrnent process, which rnay linit the ability to sewe City of Salem water oustomsrs.

Water Quatlty

For more than 75 yea$, the Nortl Santiam River has served as the primary drinking water source for the City of Salem. The high water quality of the North SantiamRiver allows the City to we slow sand filtration as part ofthe beatrnent prooess, Slow sand filtration is a natural filtration prooess, allowing naturally gxisting biota in the river to forru a biological layer which then degrades and/or romoves particulates artd microbial contaminants in the water.

Under normal opuating conditions, the slow sand filters are operated wtthout preheatmerit (coagulation, filtation, and sedimentation). Normal oporating condlflons require raw water tubidity of less than 10 Nephelometio Turbidity Units (NTU). The constuction ofthis projeat will likely oreate oignificantly increased and sustained [evels of turbidity that will be released to the North Santiarn River downsbear-n of the darns, This turbid water will dramatically affact the City's ability to utilize slow sand filtratlon under norural operations. The City can maxinize operations during short, flashy turbid events, however, sustained turbidity will oreale sigrificaut operational ohallenges, The City is awaro of lncreased and sustained turbidity caused in the MoKenzie Nver during the constuction of the temperatwe contol structr,ue at€ougar Darn in ,2002, which created 8n avdage tubidity in the river of 106 NTU for four months,

EQUAL OPPORTUNIIY / AFFIRAAATIVE ACTION EMPLOYER womenr minorltles, and dlsabled are encouiaged to apply . ADA Accommodatlons will be prglided upon requ€st

EXHIBITA-PAGE1OF4 Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 4 of 6

Kelly Janes January 19,2018 Page2

Lower water elevations in Dehoit Reservoir and Big CliffReservoir may lead to higher water temperatures in the North Santiam River. Any deviations ftom nonnal water quality parameters have the ability to impact the operations of the water boatment plaat including but not lirrtted to changes in filter performanoe and chernical dosage.

Higher water tempqatures may also increase the ocourrenqe and magnitr:de of algal blooms in Dotroit Reservoir and the North Santiarn River. Algal blooms oan negatively impaot the water treatrnent proaess by (l) ologging filters and inhibiting the City's ability to meet water demand, (2) production of algal toxins, and (3) taste and odor issuos caused by Geosmin and 2-Methylisoborneol (&fIB), The City maintains a robust Watershed Monitoring Progra:n whic\ is vital ln identifftng the presouoe of a bloorir and s"rpling for identification/enumeration of the algae in addition to sampling for tlie presonce of cyanotoxins.

.Ongoing aooess to Detroit Reservoir druing the summer months is imperative for the success of water quality monitoring program, The City acoesses Dehoit Reservoir at Mongold State Park. The City would be opposed to using Mongold State Park for a staging atea during constuction, Additionallyj the City would request construction of a ramp extension tp allow for continuod acoess to allow for year-round aooess to the reservoir should the reservolr level drop below the low water boat ramp.

Tbe City is also conoemed about the possible release of contdminants in the silt at the bottom of the reservojr. During the construotion period ofthe temperature oontrol strustrre at Cougar Dam, it was reported that DDT bound to sediment w6s released downstream. The release of any contaminant from the sediment may impaot the City's ability to meet regulatory requirements under the Safe Drinking Water Act. l Water Quantity { I jsland { The Geren Island Water Treatnent Facility ls located on an in the middle of the North i Santiam River east of the City of Stayton, The facllity's water intake, also kaown as the Middle lntake, ls located on the norttr ohannel of the North Santiam Nver, In Ordor for the troatnost plant to function properly, river stage in the North $antiarn River at the Middle Intake must be at least 2,3 feet. Flows of 700 cubic feet per seoond (ofs) at Mehama are needed to meet this sdtical river stage level. Any flow lower than that will drastically affect the City's ability to produce drinking water to meet Salem water oustomer demands.

The City is concerrd that during the construction of these projects, sustained flow will be minimal in the Norttr Santiam River and the channel elevationmay even reachthat critical tlneshold of 2,3 fpet at the Middle Intake, If this occws, the City will be unable to produce enough drinking wator to meet the needs of its communlty,

Distribution of deposition downsheam ftorn Big CliffDam is also of ooncern, As peviously mentloned, the City's drinking wate.r intake is looated on North Channel of theNorth Santianr River. Inoreased sediment traosport tluoughthe and into the North Santiam River.will eventuafy accumulate in the bed, The location and quantities of this addltional sediment deposition may alter ancVor restrict flows to the North Chauel whioh pan significantly ohallenge

EXHIBIT A - PAGE 2OF 4 Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 5 of 6

Kelly Janes January 19,2018 Page 3

operations at the treatment plant. Furthermore, instream work needed to dredge problematic deposition in the North Santiarn River is bounded by pennit oonstraints and triggered mitigation actions.

Economic Impacts

There is the potential for siemifioant economic impact from the consbuotion of these projects. City of Salem water custorners, both residential and comrnerciaVindushial, depend on a reliable, high quality drinking water, Any negatiye ohanges to the quality and quantity of the North Santiam Rivor affeots the City's abilify to meet oustomer's expeotations, Furthermore, should produotion of water be limited, Salem water customors m:ay faae some level ofwater or:rtailment for potentially long poriods of time, Restricting water uses creates significant hardships for Salem water customers, especially conomercial and industrial oustome$.

Sustained water surtailment would lessen the City's utitity revenues. Revenue projections are based on assumed water demand without owtailment oonsiderations. Reduced rovenues impede the City's ability to suitably tnaintain the utilify infrasffuchue systems, These reductions could Iead to inoteased utility rates for Salem's water oustomors.

Regulatory Impacts

The City of Salem is a Designated Management Agency (DMA) under the U.S. Environmental Protection Agenoy (EPA) 2006 Willametts Basin Total MaximumDaily Load (TMDL) a.ndthe 2008 Molalla-Pudding TMDL, and is responslbte for development and implementation of sbategies to rninimize and addrqss the discharge of TMDL pollu(ants, TMDLs were established to define allowable pollutant load disoharges for DMAs in order to meet watet quallty startdards, The Willamette Basin TMDL addresses bacteria, merouryl psstioides, turbidity, and temperatute; and the Molalla-Pudding TMDL addresses temperature, bacterig pesticides (DDT, dieldrin, ohlordane), nitrate, and iron/manganese/arsenio, Total suspended solids (TSS) serye as a surrogate for pesticides and is managed as a water quality pollutant.

The City is concemed about the possible release of contaminants in the slit at the bottom of the reservoir, and its lmpaot to water quattty downstrearn as it flows tluough the City and into the . The City ounently implements a S-year TMDL plan to reduce all pollutants, and the release of any TSS from projects at Detroit Dam mey hinder progress to remove this pollutant fiom the Willamette River,

Aesthetlc Impacts

The City of Salem has a tolal of 102 cfs in watpr rights for recreation and aesthetics for Mill Qreek, a tributary of the Wittamette Rivor, which flows though the City of Salom. To meet this water right during the sumrner months, flow in Mill Creek is augaented by the Nor0r Santlam via flow conhol gates on Salem Ditoh and Stayton Canal. Both gates are looatsd in the Stayton area and both aro managed and operated by the Santiarn Water Conbol Distjct, Additionally, the Santiam Water Conhol Distriot ca& ?nd often does, divert water from MilI Creekto Pringle Creek to meet inigation demand. Mill Creek and a pofiion of Pringle Creok are classified as

EXHIBITA-PAGE3OF4 Case 3:18-cv-00437-PK Document 7-1 Filed 06/25/18 Page 6 of 6

I(elly Janes r Jaauary 19,2018 Page 4

Essential Salmonid Habitat and any increases abovo baokground turbidity levels and higher streasr temperatures could degrade this habitai. Furthennore, the City of Salem operates tluee fish ladders on these streams that were engineered based on the 102 cfs waterdght. Therefore, any reduction in flow lower than 102 cfs oould affect anadromous fish passage tbrough these stnrctures.

Mill Creek and Pringle Creek are both important natural rosourcbs to &i Salem oommunity, Many homes and businesses are losated sheanside, Lowor flows with inoressed turbidity in Mill and Pringle Creeks will likely have a uegative effect on water quality by oausing inoreased stream temperatwes, algal blooms, and offensive odors, The City is also concened about harmfill algal blooms extending into the various waterbodies withi! the Citypuks, whioh are fed by North Santiam River source water.

Alternative to Standard Constructlon Practlces i I I The City would like the U,S, Anny Corps of Engiaeers to investigate alternative construotion t praoticos on the Santiarn River, Suoh practic€i may lnolude siddng a to mlaimize effects North I pneumatic caisson to construct tbe fouudation of the temppratrle contol structrue. This type of I oould reduoe the time perlod of impact and the'reseryoir drawdown lwel. I oonstruction ninimize I I

The City of Salem greatly appreoiatos ihe opportunity to provide comments on this proposed I i. project. We hope our ooncems aro included in yotu ptoject scope. ! I : $iaoerely, :

I

1 Steven D. j l City Manager I - i oc: Peter Fernandez, PE, Public Works Direotor I Laoey Goeres, Wator Quahf Treahnent Supervisor l ,l i

I l .t:

EXHIBIT A- PAGE 4OF 4 Case 3:18-cv-00437-PK Document 7-2 Filed 06/25/18 Page 1 of 3

LAWRENCE B. BURKE, OSB #892082 [email protected] AARON K. STUCKEY, OSB #954322 [email protected] DAVIS WRIGHT TREMAINE LLP 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 Telephone: (503) 241-2300 Facsimile: (503) 77 8-5299

THOMAS V. CUPANI, OSB #924654 tcup ani@cityo fs al em. net CITY OF SALEM 555 Liberty St. SE, Room 205 Salem, Oregon 9730I Telephone: (503) 588-6003 Facsimile: (503) 361-2202

Attorneys for City of Salem

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

NORTHWEST ENVIRONMENTAL Case No. 3 : 1 8-cv-00437 -PK DEFENSE CENTER, WILDEARTH GUARDIANS, and NATIVE FISH Proposed Intervenor-Defendant City of soCIETY, Salemos PLAINTIFFS, ANSWER

V

U.S. ARMY CORPS OF ENGINEERS and NATIONAL MARINE FISHERIES SERVICE,

DEF'ENDANTS

Page 1 - CITY OF SALEM'S ANSWER DAVIS WRIGFIT TREMAINE LLP 4843 -46t 6-53s4v.4 0783034-0000 I I 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (503) 241-2300 main . (503) 778-5299 fax Case 3:18-cv-00437-PK Document 7-2 Filed 06/25/18 Page 2 of 3

Proposed Intervenor-Defendant City of Salem ("the City") answers the Complaint as follows:

1.

The City specifically denies that the 2008 Biological Opinion requires the U.S. Army

Corps of Engineers ("the Corps") to construct a temperature control structure at Detroit Dam or that the Corps has violated, is violating, or will violate the Endangered Species Act by not constructing a temperature control structure at Detroit Dam.

2.

The City admits of Paragraph 36 that Detroit Reservoir is a popular recreation area.

Otherwise, the City lacks sufficient information to form a belief as to the truth of the allegations of Paragraph 36 and, on that basis, denies them.

3.

The City specifically denies of Paragraph 54 that the 2008 Biological Opinion requires the Corps to "construct a temperature control facility at one dam by the end of 2018, with Detroit

Dam being first priority." The City generally denies all other allegations in Paragraph 54.

4.

The City specifically denies of Paragraph 64 that the 2008 Biological Opinion requires the Corps to construct a temperature control facility at Detroit Dam or that the Corps will ooexseed the deadline by more than four years for construction and operation of a temperature control structure at Detroit Dam for long-term improvement to water temperature in the North

Santiam River." The City generally denies all other allegations rnParagraph64.

5.

Except as specifically admitted herein, the City denies all allegations of Plaintiffs'

Complaint.

Page2 - CITY OF SALEM'S ANSWER DAVIS WRIGHT TREMAINE LLP 4843 -4616-5354v.4 0783034-00001 I 1300 S.W, Fifth Avenue, Suite 2400 Poftland, Oregon 97201-5610 (503) 241-2300 main , (503) 778-5299 fax Case 3:18-cv-00437-PK Document 7-2 Filed 06/25/18 Page 3 of 3

FIRST AFFIRMATIVE DEFENSE

(Failure to State a Claim)

. Plaintiffs have failed to allege facts sufficient to state a claim for relief.

SECOND AF'FIRMATIVE DEFENSE

(Failure to Join Necessary Parties)

Plaintiffs have failed to join a necessary party or parties, including any other person or entity that may be liable for the matters alleged in the Complaint.

THIRD AFFIRMATIVE DEFENSE

Qrlo Wrongful Act)

Plaintiffs' claims are bamed, as the injuries or damages alleged by Plaintiffs, if any, were not caused by any acts or omissions of Defendants.

FOURTH AFFIRMATIVE DEFENSE

(lt{o Standing)

Plaintiffs lack standing to assert the claims stated in the Complaint and to seek some or all of the relief requested.

DATED this 25tl'day of June,2018.

DAVIS WRIGHT TREMAINE LLP

By s/ Lawrence B. Burke LAWRENCE B. BURKE, OSB #892082 lartybu*[email protected] AARON K. STUCKEY, OSB #954322 aaron stuckglz@dwt. co m Telephone: (503) 241-2300 Facsimile: (503) 77 8-5299

THOMAS V. CUPANI, OSB #924654 tcupani@ci0ro-fsalem. net Telephone: (503) 588-6003 Facsimile: (503) 361-2202

Attorneys for City of Salem

Page 3 - CITY OF SALEM'S ANSWER DAVIS WRIGHT TREMAINE LLP 4843 -46t6-5354v.4 0783034-0000 I I 1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610 (s03) 241-2300 main ' (503) 778-5299 fax