Water and sewer district to face jury over Clean Water Act violation
By Bella Butler EDITOR-IN-CHIEF
BIG SKY — The Big Sky County Water and Sewer District will go on trial in federal court in Butte beginning Monday for allegations that the district violates the Clean Water Act.
The three-day trial will be the culmination of a lawsuit filed against the district in July 2020 by plaintiffs Cottonwood Environmental Law Center, Montana Rivers and the Gallatin Wildlife Association. The plaintiffs claim that the district is illegally dumping sewage from its holding ponds at Big Sky into the West Fork of the Gallatin River. The defendants deny the allegation.
Now, nearly two years after it was filed, the lawsuit has cost the district $1.4 million, according to its chief executive, Ron Edwards. To pay the bill, the district drew funds from the public entity’s reserves as well as from its legal budget of $195,000, which is ultimately paid by the district’s customers.
The district currently operates three retention ponds near the village of Meadow in Big Sky where it stores treated wastewater from Big Sky. A subsurface drainage system below the lined impoundments carries groundwater from the Meadow Village aquifer to the West Fork.
The Clean Water Act makes it illegal to discharge pollutants from a point source into “United States waters” without a permit from the National Pollutant Discharge Elimination System. The plaintiffs allege the impoundments are dumping 58,000 gallons of sewage — and therefore pollutants, they claim — into groundwater every day without a permit, according to a pretrial order obtained by EBS.
In the order, the district says the plaintiffs cannot sustain their claims for three reasons: the district’s underground drain does not discharge pollutants directly into the West Fork, the district’s storage ponds are not a point source, and any leakage from the basins that indirectly reaches the West Fork via groundwater is not “the functional equivalent of a direct release”.
“Evidence at trial will show that the leakage from the ponds is negligible and well below the amount allowed by Montana Department of Environmental Quality regulations for storage ponds,” the district’s defense summary reads in the order. .
Bill Bartlett, a retired attorney and chairman of Cottonwood’s board of directors as well as director of the Montana Rivers board of directors, said the plaintiffs had evidence to suggest otherwise.
“To investigate our concerns about the leak and pollution of a tributary of the Gallatin River by the Big Sky Sewer Lagoon, the three nonprofit companies employed a laboratory experienced in groundwater tracing,” wrote Bartlett in an April 22 statement to EBS. . “This investigation traced the green dye from the leaking lagoon liner to a pipe, designed for a different purpose, which then brought it to the West Fork of the Gallatin River. The findings of this study form the basis of the lawsuit and support our claims of violations of federal clean water law.
The tracer die study was conducted by hydrologist Tom Aley of the Missouri-based Ozark Underground Laboratory. Aley will serve as the plaintiffs’ expert witness. The pre-trial order states that the plaintiffs will also call a DEQ employee to the stand.
The district will call two expert witnesses, Scott Buecker, an engineer with AE2S, and Mark Cunnane, an engineer with Western Groundwater Services. He will also call Edwards and another witness the district did not release at press time.
Pollutants must be discharged from a point source to violate the Clean Water Act, but a disputed issue is whether impoundments are a point source.
CWA defines a point source as a “discernible, confined, and unobtrusive means of transport”, and provides a non-exhaustive list of examples.
The district claims that its retention ponds are not a point source as they are not a means of transportation since they store water rather than transport it.
For plaintiff’s argument, Bartlett referred to one of many instructions the judge may give to the jury during the trial.
“Judge Morris will determine which law applies and will ask the jury to determine the facts,” he wrote. “Based on pre-trial rulings, he should order the jury to find that the storage ponds are, legally, a ‘point source’ if they believe the storage ponds are leaking.”
At trial, the plaintiffs will seek a verdict that the district has violated the CWA since May 11, 2015, a date determined by the statute of limitations, according to Bartlett. If this verdict is reached, the plaintiffs also seek orders requiring the district to pay civil penalties for the alleged violations; require the district to remedy the environmental damage caused by the alleged spill; requiring interim pollution monitoring and mitigation measures until the district complies with the CWA; prohibit the district from accepting new sewer connections; and award the plaintiffs their costs and expenses.
According to Bartlett, the plaintiffs estimate their disbursements will approach $80,000 by the end of the trial.
The district is seeking a judgment in its favor dismissing the claims against it as well as an award of its legal costs. In an April 21 email to EBS, Jonathan Rauchway, an attorney for the district, said the lawsuit had “imposed a significant burden on the district, consuming both financial resources and the time of the district director and staff. “.
“The District operates the Big Sky Community’s water and sewer systems in a responsible and legal manner,” Rauchway wrote. “The Montana DEQ oversees the District’s facilities, and the District follows DEQ-approved plans and standards. Accordingly, the District intends to vigorously defend itself at trial.
The trial is scheduled for Monday April 25 to Wednesday April 27.