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Jury finds for Big Sky’s water and sewer district in Clean Water Act case 

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The West Fork of the Gallatin River downstream from the Big Sky County Water and Sewer District storage ponds. PHOTO BY BELLA BUTLER

By Bella Butler MANAGING EDITOR

BUTTE – A jury handed down a verdict in favor of the Big Sky County Water and Sewer District in federal court Tuesday. The defense verdict releases the district of claims filed nearly two years ago by Bozeman-based environmental groups alleging the district was in violation of the Clean Water Act.

The civil lawsuit, filed by Cottonwood Environmental Law Center, Gallatin Wildlife Association and Montana Rivers in July of 2020, claimed the district’s wastewater holding ponds were leaking effluent into the West Fork of the Gallatin River without a Clean Water Act permit. CWA makes it unlawful to discharge pollutants from a point source into “waters of the United States” without a National Pollutant Discharge Elimination System permit.

The plaintiffs’ expert hydrologist Tom Aley with Missouri-based Ozark Underground Laboratory, testified at the April 26-27 trial that a tracer dye study that he performed last summer revealed the leakage. The district defended that any leakage from the ponds is within amounts allowed by the Department of Environmental Quality. 

The district is pleased with the outcome but is dismayed by the process of going through a lengthy and expensive lawsuit, according to the district’s general manager, Ron Edwards. Before trial, Edwards said the district had incurred approximately $1.4 million in legal costs and fees. Additional significant fees were added during the trial, he said, but the total has yet to be determined.   

“The District operates responsibly, under the supervision of the Montana Department of Environmental Quality, and in compliance with the law—and the jury’s verdict confirms those facts,” an April 28 statement from the district said. “As we told the jury at trial, this lawsuit should never have been brought … Lawsuits like this one are adversarial, expensive, and counterproductive. The District hopes that going forward, all stakeholders can work together cooperatively to resolve these kinds of concerns without the need for more lawsuits.”

The plaintiffs remain steadfast in their claims.

“We are litigating this case for one reason, to find resolution to the leaky holding ponds,” said GWA President Clint Nagel in an April 27 statement from the plaintiffs. “We believe the dye test proved our case.”

Based on applied law, the plaintiffs needed to prove that the district is a “person” that 1) discharged 2) a pollutant 3) to navigable waters 4) from a point source. The court’s chief judge, Brian Morris, instructed the jury to determine whether the district had violated the CWA based on those elements.

Informed by previous litigation party agreements and court orders, Morris’ instructions to the jury established for the trial that the district is considered a “person;” that the district’s treated sewage and the nitrogen in that sewage are pollutants; and the West Fork of the Gallatin River is a navigable water.

At conflict were the matters of pollutant discharge, which the CWA defines as the “addition of pollutants,” as well as if the holding ponds and the underdrain system that transports groundwater beneath the holding ponds are considered point sources.

In his instructions, Morris told the jury that if the holding ponds were leaking, they were considered a point source, but the underdrain system was not a point source.

The plaintiffs plan to appeal the verdict, according to their statement.

“The judge made a clear legal error when he instructed the jury that the pipe discharging the pollution is not a point source,” said John Meyer, executive director of Cottonwood Environmental Law Center and lead counsel for the plaintiffs.

Edwards said this verdict is “a huge win” for communities that have storage ponds as part of their wastewater treatment facilities.

“This is a big deal,” he told EBS. “This is federal court. I think our circumstances are unique so I think it may help other districts that are municipalities that have these lined storage things in other parts of the country. I wouldn’t say it’s landmark, but I think it may help.”

In February, the plaintiffs added Boyne Resorts as an additional defendant in the CWA case claiming the Big Sky Resort Golf Course, which is watered with treated wastewater from the district, is overirrigated and therefore causing nitrogen discharge into the West Fork. The court split the trial into two phases after deciding the water and sewer district was not a “proper party” to these claims.

According to a pretrial order, Boyne has until May 2 to respond to the claims about overirrigating the golf course.

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