`
`
`
`John Meyer, MT Bar # 11206
`Cottonwood Environmental Law Center
`P.O. Box 412
`Bozeman, MT 59771
`(406) 546-0149
`john@cottonwoodlaw.org
`
`Counsel for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
`MONTANA - BUTTE DIVISION
`
`
`
`
`Case No. ______
`
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`COTTONWOOD
`ENVIRONMENTAL LAW CENTER;
`MONTANA RIVERS; and
`GALLATIN WILDLIFE
`ASSOCIATION,
`
`
`Plaintiffs,
`
` vs.
`
`RON EDWARDS, in his official
`capacity as Manager of the Big Sky
`Water and Sewer District; and BIG
`SKY WATER AND SEWER
`DISTRICT,
`
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 2 of 12
`
`
`
`INTRODUCTION
`
`1.
`
`Cottonwood Environmental Law Center (Cottonwood), Montana Rivers, and
`
`Gallatin Wildlife Association (collectively; Community Groups) bring this action
`
`against the Big Sky Water and Sewer District Water Resources Recovery Facility
`
`(WRRF) for their ongoing violations of the Clean Water Act (CWA) by
`
`discharging pollutants into the West Fork of the Gallatin River without a National
`
`Pollutant Discharge Elimination System (NPDES) permit in violation of Section
`
`301(a) of the CWA, 33 U.S.C. § 1311(a). The CWA requires that the Montana
`
`Department of Environmental Quality issue permits before it allows any discharge
`
`of pollutants into Montana’s waterways.
`
`2.
`
`The Big Sky Water and Sewer District manages the Water Resources
`
`Recovery Facility, a treatment center and set of holding ponds in Big Sky,
`
`Montana, adjacent to the West Fork of the Gallatin River (West Fork). Wastewater
`
`from a pipe near a holding pond is discharging directly into the West Fork of the
`
`Gallatin River. The wastewater is contaminated with pharmaceuticals, chloride,
`
`nitrate, calcium, fluoride, iron, lithium, magnesium, potassium, sodium and sulfate
`
`and other pollutants.
`
`3.
`
`The discharge exposes the West Fork of the Gallatin River, the Gallatin
`
`River, and all water bodies to which the Gallatin River is a tributary to pollutants.
`
`The West Fork is already listed as an impaired water body by MTDEQ, and further
`
`Complaint - 2
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 3 of 12
`
`
`
`unregulated discharge exacerbates the problem and does not comply with the
`
`applicable Water Quality Improvement Plan. The unlawful discharge harms
`
`plaintiffs’ members’ recreational, scientific and aesthetic interests in the water
`
`quality, aquatic species, and the health of the Gallatin River watershed. Plaintiffs’
`
`members do not want to recreate in treated waste water.
`
`4.
`
`Plaintiffs seek declaratory and injunctive relief prohibiting Defendant from
`
`discharging pollutants without obtaining and complying with an NPDES permit, as
`
`well as an award of litigation costs, Cottonwood’s attorney fees, and expert witness
`
`fees.
`
`JURISDICTION AND VENUE
`
`5.
`
`This court has subject matter jurisdiction over the claims for violations of
`
`the CWA set forth in this Complaint pursuant to the CWA, 33 U.S.C. § 1365(a)(2).
`
`This cause of action arises under 33 U.S.C § 1365 (f)(1) as a violation of 33 U.S.C.
`
`§ 1311(a).
`
`6. Defendant is in violation of the CWA by discharging pollutants without a
`
`NPDES permit. The requested relief is proper under the CWA, 33 U.S.C 1365(a).
`
`7.
`
`Venue in the United States District Court for the District of Montana is
`
`proper under 33 U.S.C. § 1365 (c) because defendant WRRF is located at 561
`
`Little Coyote Road, Big Sky, Montana, 59716, and is thus within this district.
`
`Complaint - 3
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 4 of 12
`
`
`
`8.
`
`As required by the CWA, 33 U.S.C. § 1365(b)(1)(A), Cottonwood provided
`
`Defendant with notice of its intent to sue more than sixty (60) days before filing
`
`this Complaint. Cottonwood also notified the Administrator of the United States
`
`Environmental Protection Agency (EPA), and the Montana DEQ (MTDEQ) of its
`
`intent to sue. Each recipient received notice on April 27th, 2020. Neither EPA nor
`
`DEQ have commenced any enforcement action to correct Defendant’s CWA
`
`violation.
`
`PARTIES
`
`9.
`
`Plaintiff Cottonwood Environmental Law Center (Cottonwood) is a
`
`conservation organization with members throughout the West dedicated to
`
`protecting the people, forests, water, and wildlife in the American West.
`
`Cottonwood’s goal is to enforce environmental regulations on behalf of its
`
`members. Cottonwood’s members use the Gallatin River watershed for fishing,
`
`swimming, rafting, photography, guiding, and consumption. Cottonwood’s
`
`members are concerned about water quality of the Gallatin River watershed and
`
`are adversely affected by unlawfully discharged pollution into this waterbody.
`
`10. Pollution discharges from the WRRF degrades water quality and, thereby,
`
`harms fish and other aquatic life and diminish the aesthetic quality of the
`
`watershed.
`
`Complaint - 4
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 5 of 12
`
`
`
`11. Community Groups and their staff, members, and supporters have suffered
`
`and continue to suffer injury-in-fact on account of WRRF’s CWA violations as
`
`alleged herein. The injury-in-fact is traceable to WRRF’s conduct and would be
`
`redressed by the relief Plaintiffs seek.
`
`12. Community groups’ members use and enjoy the West Fork for recreational
`
`purposes on an ongoing basis. Members recreate in the Gallatin River watershed
`
`and fish in the West Fork. Illegal discharge of wastewater harms their recreational,
`
`aesthetic and conservation interests by degrading water quality. Members are
`
`concerned the discharge will impact their use of the West Fork, and have refrained
`
`from recreational activities on the West Fork and Gallatin Rivers upon learning
`
`about wastewater flowing into the river. Members float on the Gallatin River and
`
`are concerned about swimming in pharmaceutical wastewater.
`
`13. Community Groups also suffer injury-in-fact because they have devoted
`
`time, energy, and money to protecting water quality and fisheries, and monitoring
`
`the West Fork. Over the last five months, Community Groups closely monitored
`
`discharges from the WRRF site, and have sent staff and contractors to visit the
`
`area, observe and document illegal discharges, and evaluate water quality impacts.
`
`14. Defendant RON EDWARDS is sued in his official capacity as Manager of
`
`Big Sky Water and Sewer District Water Resources Recovery Facility. As
`
`Manager, Mr. Edwards is in the highest position at the facility, where he has the
`
`Complaint - 5
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 6 of 12
`
`
`
`authority and responsibility to oversee WRRF’s compliance with laws and
`
`regulations, including the CWA.
`
`LEGAL BACKGROUND
`
`15.
`
`“Congress enacted the CWA in 1948 with the goal of eliminating the
`
`discharge of pollutants in order to restore and maintain the chemical, physical, and
`
`biological integrity of the Nation’s waters.” N. Cheyenne Tribe v. Mont. Dept. of
`
`Envtl. Quality, 2010 MT 302, ¶ 21, 356 Mont. 296, 302, 234 P.3d 51, 55 (2010)
`
`(emphasis in original) (citing 33 U.S.C. §1251(a)). “Congress developed the
`
`NPDES [National Pollution Discharge Elimination System] permit system to
`
`achieve this goal.” Id; (citing 33 U.S.C. §§1342 and 1311).
`
`16. The CWA requires a NPDES permit for each and every point source
`
`discharge into a navigable waterway. 33 U.S.C. § 1342. “[T]he discharge of any
`
`pollutant by any person shall be unlawful” unless the discharge is made pursuant to
`
`and is authorized by a NPDES permit. 33 U.S.C. §§ 1311(a) and 1342(a). “The
`
`primary means for enforcing [water quality] limitations and standards is the
`
`NPDES [program].” Arkansas v. Oklahoma, 503 U.S. 91, 101-02 (1992).
`
`17. The CWA defines “discharge of a pollutant” as “any addition of any
`
`pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).
`
`Complaint - 6
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 7 of 12
`
`
`
`18. The CWA defines “point source” as a “discernable, confined and discrete
`
`conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit,
`
`well ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
`
`19. The CWA defines “pollutant” as “dredged spoil, solid waste, incinerator
`
`residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
`
`materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,
`
`cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
`
`33 U.S.C. § 1362(6).
`
`20. The CWA defines “person” as “an individual, corporation, partnership,
`
`association, State, municipality, commission, or political subdivision of a State, or
`
`any interstate body.” 33 U.S.C. § 1362(5).
`
`21. The Environmental Protection Agency (“EPA”) administers NPDES permits
`
`unless a state has enacted its own enforcement program, in which case EPA’s
`
`Administrator (“Administrator”) must have approved the state’s program. 33
`
`U.S.C. § 1342(a). Montana has elected to administer its own permit program – the
`
`MPDES program – which is under the control of the DEQ. Mont. Code Ann. §§
`
`75-5-402, 75-5-211; A.R.M. 17.30.101, 17.30.1201. Once delegated to a state, the
`
`state “stands in the shoes” of EPA, and states are obligated to implement all of the
`
`CWA’s requirements for the NPDES program. N. Cheyenne, ¶ 37.
`
`Complaint - 7
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 8 of 12
`
`
`
`22. The citizen suit provision of the CWA authorizes “any citizen” to
`
`“commence a civil action on his own behalf” in federal district court against any
`
`person who is alleged to be in violation of “an effluent standard or limitation” of
`
`the Act. 33 U.S.C. § 1365(a).
`
`FACTUAL BACKGROUND
`
`The West Fork of the Gallatin River
`
`23. The West Fork of the Gallatin River is a navigable water located in south-
`
`central Montana and is a tributary to the Gallatin River.
`
`24. The West Fork flows generally west to east, from its headwaters at the
`
`confluence of the Middle and North Forks of the Gallatin River in the Madison
`
`Mountain Range to its mouth at the Gallatin River just north of Big Sky Canyon
`
`Village. Along the way, the West Fork flows through the community of Big Sky,
`
`Montana and numerous neighboring developments.
`
`25. The West Fork provides important habitat to fish and wildlife. The West
`
`Fork and Gallatin River watershed is a heavily used area for recreation.
`
`The Water Resources Recovery Facility
`
`26. The Water Resources Recovery Facility is located in Big Sky, Montana. It is
`
`a wastewater treatment plant for the community of Big Sky, Montana. It contains
`
`multiple holding ponds adjacent to the West Fork.
`
`Complaint - 8
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 9 of 12
`
`
`
`27. There is visible discharge flowing from the treatment pond retaining wall
`
`into the West Fork. The point of discharge from WRRF is located on the exterior
`
`of the retaining wall of the facility’s eastern ponds.
`
`Unpermitted Pollution Discharge from the WRRF Holding Pond:
`
`28. On March 5, 2020, Community Groups collected samples from the West
`
`Fork immediately above and below the holding ponds. The samples indicate
`
`elevated levels of chloride, nitrate, calcium, fluoride, iron, lithium, magnesium,
`
`potassium, sodium and sulfate below the ponds, indicating pollutants increase due
`
`to discharge from the ponds. Additional lab results were collected on May 4, 2020
`
`from water flowing directly out of the leak in the holding pond retaining wall
`
`which contain the above-named pollutants.
`
`29. Community Groups have observed, photographed and recorded discharge
`
`into the West Fork on March 5, May 4, and June 12, 2020. Community Groups
`
`believe unlawful discharge is occurring every day of the year.
`
`30. The discharges of pollutants from WRRF described herein were made, and
`
`will continue to be made from a pipe connected to the holding pond, which is a
`
`discernible, confined, and/or discrete conveyances.
`
`31. Defendants have never obtained an NPDES permit for the discharges
`
`described herein. This violates the CWA.
`
`Complaint - 9
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 10 of 12
`
`
`
`32. Defendants’ violations of the CWA are serious. They degrade the quality of
`
`the West Fork and harm the people, fish, and wildlife that rely on it.
`
`33. Defendants received plaintiff’s 60 day notice of violation on April 27th,
`
`2020, confirmed by return receipt, specifying the nature of the violation and what
`
`action was needed to comply with the permit requirements of the CWA .
`
`Defendant has not responded to the notice.
`
`CLAIM FOR RELIEF
`
`34. Community Groups reallege and incorporate by reference all preceding
`
`paragraphs.
`
`35. Defendant RON EDWARDS has violated and continues to violate section
`
`301 of the Clean Water Act, 33 U.S.C. § 1311(a), by discharging pollutants,
`
`including chloride, nitrate, calcium, fluoride, iron, lithium, magnesium, potassium,
`
`sodium and sulfate, and other pollutants from the wastewater holding ponds at the
`
`WRRF into the West Fork of the Gallatin River without a NPDES permit. These
`
`violations are violations of an “effluent standard or limitation” as defined by
`
`section 505(f) of the CWA, 33 U.S.C. § 1365(f).
`
`36. The West Fork is a navigable water subject to CWA jurisdiction.
`
`37. Defendant discharged said pollutants from a pipe leak connected to the
`
`facility holding pond retaining wall—which constitutes a point source—via a
`
`direct surface water connection to the West Fork in 2020 on March 5, May 4, and
`
`Complaint - 10
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 11 of 12
`
`
`
`June 12. Upon information and belief, these discharges also occurred prior to
`
`March 5 and on every day since, up to and including the present. These direct
`
`surface water discharges are ongoing and will continue until the leak is
`
`permanently repaired or the holding pond no longer contains wastewater.
`
`38. Defendants did not have, and do not currently have, an NPDES permit
`
`authorizing any of these past and ongoing pollution discharges.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff respectfully requests that this Court grant the following
`
`relief:
`
`A. Declare, hold, and adjudge that Defendant has violated and continues to
`
`violate Section 301 of the Clean Water Act by discharging pollutants from a leak
`
`in their wastewater holding pond to navigable waters without an NPDES permit.
`
`
`
`B.
`
`Enjoin Defendant from further discharging pollutants to the West Fork and
`
`any other water of the United States except as expressly authorized by the CWA
`
`and the limitations and conditions of an applicable NPDES Permit.
`
`C. Order interim pollution monitoring and mitigation measures until Defendant
`
`complies with the CWA.
`
`D. Order Defendant to take actions to remediate environmental harm caused by
`
`its unlawful discharges.
`
`Complaint - 11
`
`
`
`Case 2:20-cv-00028-BMM Document 1 Filed 07/10/20 Page 12 of 12
`
`
`
`E.
`
`Award Plaintiff its reasonable litigation costs and expenses, including
`
`attorney and expert fees, incurred in bringing this action.
`
`F.
`
`Award such other relief as the Court may deem just and proper.
`
`
`
`DATED this 10th day of July, 2020.
`
`Respectfully Submitted,
`
`/s/ John Meyer
`JOHN MEYER, MT Bar # 11206
`Cottonwood Environmental Law
`Center
`P.O. Box 412
`Bozeman, MT 59771
`(406) 546-0149
`john@cottonwoodlaw.org
`
`Counsel for Plaintiffs
`
`
`
`
`Complaint - 12
`
`