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Water and sewer district to face jury on Clean Water Act violation claims 

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One of the three Big Sky County Water and Sewer District wastewater holding ponds. PHOTO BY JULIA BARTON

By Bella Butler MANAGING EDITOR

BIG SKY – The Big Sky County Water and Sewer District will be tried in federal court in Butte beginning Monday for claims that the district is violating the Clean Water Act.

The three-day trial will be the pinnacle of a lawsuit filed against the district in July of 2020 by plaintiffs Cottonwood Environmental Law Center, Montana Rivers and the Gallatin Wildlife Association. The plaintiffs claim the district is illegally discharging wastewater from its holding ponds in Big Sky into the West Fork of the Gallatin River. The defendants refute the allegation.

Now, nearly two years after it was filed, the lawsuit has cost the district $1.4 million, according to its general manager, Ron Edwards. To foot the bill, the district has sourced funds from the public entity’s reserves as well as from its $195,000 legal budget, which is ultimately paid by the district’s customers.

The district currently manages three holding ponds near the Meadow Village in Big Sky where it stores treated wastewater from Big Sky. An underdrain system beneath the lined holding ponds transports groundwater from the Meadow Village aquifer to the West Fork.

The Clean Water Act 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 allege the holding ponds are each day leaking 58,000 gallons of wastewater—and therefore pollutants, they argue—into the groundwater without a permit, according to a pretrial order obtained by EBS.

In the order, the district states the plaintiffs can’t support their claims for three reasons: The district’s underdrain doesn’t directly discharge pollutants into the West Fork, the district’s storage ponds are not a point source, and any leakage from the ponds that indirectly reaches the West Fork via the groundwater isn’t the “functional equivalent of a direct discharge.”

“The evidence at trial will show that leakage from the ponds is negligible and far less than the amount the Montana Department of Environmental Quality’s regulations allow for storage ponds,” the summary of the district’s defense states in the order.

Bill Bartlett, a retired attorney and chairperson for the Cottonwood board as well as a board director for Montana Rivers, said the plaintiffs have evidence that suggests otherwise.

“To investigate our concerns that the sewer lagoon at Big Sky leaked and polluted a tributary of the Gallatin River, the three not-for-profit corporations employed a laboratory with experience in ground water tracing,” Bartlett wrote in an April 22 statement to EBS. “That investigation traced green dye from the leaky lagoon liner to a pipe, designed for a different purpose, which then brought it to the West Fork of the Gallatin River. The findings from that study are the basis of the lawsuit and the support for our allegations of the violation of the Federal Clean Water Act.”

The tracer die study was conducted by hydrologist Tom Aley from the Missouri-based Ozark Underground Laboratory. Aley will serve as the plaintiffs’ expert witness. The pretrial order states 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. It will also call Edwards and one other witness the district did not disclose by press time.

Pollutants must be discharged from a point source to constitute a violation of the Clean Water Act, but one issue being disputed is whether the holding ponds are a point source.

CWA defines a point source as a “discernable, confined and discrete conveyance,” and provides a non-exhaustive list of examples.

The district claims its holding ponds aren’t a point source because they aren’t a conveyance since they store water rather than transport it.

For the plaintiff’s argument, Bartlett referred to one of several instructions the judge may give the jury during the trial.

“Judge Morris will determine the law that applies and will instruct the jury to determine the facts,” he wrote. “Based upon pretrial rulings he is expected to instruct the jury that they are to conclude 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 been in violation of the CWA since May 11, 2015, a date determined by the statute of limitations, according to Bartlett. If this verdict is handed down, the plaintiffs also seek orders that require the district to pay civil fines for the alleged violations; require the district to remediate environmental harm caused by the alleged discharge; require interim pollution monitoring and mitigation measures until the district complies with the CWA; enjoin the district from accepting new sewer connections; and award the plaintiffs their litigation costs and expenses. 

According to Bartlett, the plaintiffs estimate their out-of-pocket costs will approach $80,000 by the end of the trial.

The district seeks a judgement in its favor that dismisses the claims against it as well as an award of its litigation costs. In an April 21 email to EBS, Jonathan Rauchway, an attorney for the district, said the lawsuit has “imposed a significant burden on the District, consuming both financial resources and the time of the District’s manager and staff.”

“The District operates the Big Sky community’s water and sewer systems responsibly and legally,” Rauchway wrote. “The Montana DEQ oversees the District’s facilities and the District follows the plans and standards that DEQ has approved. Accordingly, the District intends to vigorously defend itself at trial.”

 The trial is scheduled from Monday, April 25 through Wednesday, April 27.

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