Cottonwood Environmental Law Center et al v. Edwards et al

Filing 108

ORDER: IT IS HEREBY ORDERED that the parties shall respond to the above questions by no later than February 28, 2022. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 2/18/2022. (SLR)

Case 2:20-cv-00028-BMM Document 108 Filed 02/18/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
COTTONWOOD ENVIRONMENTAL
LAW CENTER, et al.,
Plaintiffs,

CV-20-28-BU-BMM
ORDER

v.
BIG SKY WATER AND SEWER
DISTRICT,
Defendant.

Cottonwood Environmental Law Center, Montana Rivers, and Gallatin
Wildlife Association (“Plaintiffs”) brought this action against the Big Sky Water and
Sewer District (“Big Sky District”). Plaintiffs allege that Big Sky District violated
the Clean Water Act (“CWA”) when they discharged pollutants into the West Fork
of the Gallatin River without a National Pollutant Discharge Elimination System
(NPDES) permit. (Doc. 8.) Big Sky District and Plaintiffs previously filed
competing motions for summary judgment. (Docs. 72 & 75.) The Court denied
Plaintiffs’ motion for summary judgment and denied Big Sky District’s motion for
summary judgment with respect to the alleged point sources in control of Big Sky
District. (Doc. 89.) Plaintiffs now bring a second motion for summary judgment.

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(Doc. 101.)
The Court will consider Plaintiffs’ motion, though the motion demonstrates a
failure to comprehend the Court’s discussion of Clean Water Act jurisprudence for
indirect discharges in the prior order. (See Doc. 89 at 12-15.) Plaintiffs need look no
further than their own citations, Northern Plains Resource Council v. Fidelity
Exploration and Development Company, 325 F.3d 1155, 1158 (9th Cir. 2003). and
County of Maui v. Hawaii Wildlife Fund, __ U.S. __, __, 140 S. Ct. 1462 (2020), to
clarify their apparent misapprehension of how the Clean Water Act should be
applied to this case.
Northern Plains Resource Council provides an example of a direct discharge
from a point source. In Northern Plains Resource Council, the methane-extraction
company would drill conventional wells into a coal seam and pump the trapped water
from that seam to the surface to reduce underground pressure. 325 F.3d at 1158. The
extracted water contained a litany of pollutants recognized by the Clean Water Act.
Id. The extraction company would then discharge the extracted water from a pipe
directly into a navigable waterway. Id. The water trapped in the coal seam had no
path to the navigable waterway before Fidelity installed the pipe. Id. The Ninth
Circuit determined that the extraction company had violated of the Clean Water Act,
based on the extraction company’s actions in directly discharging a pollutant from a
point source into navigable waters of the United States without an NPDES permit.

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Id. at 1165. As Plaintiffs note, the Ninth Circuit also recognized that state law could
not relieve the permitting requirements the Clean Water Act. Id.
Unlike in Northern Plains Resource Council, Plaintiffs do not allege a direct
discharge of pollutants into a navigable waterway. Plaintiffs instead allege an
indirect discharge of pollutants. Plaintiffs claim that pollutants leak from the Big
Sky District’s Water Resources Recovery Facility (“WRRF”) holding ponds, enter
the groundwater system below the holding ponds, and flow either to the West Fork
of the Gallatin River directly through the aquifer or via the WRRF underdrain pipe.
Either mechanism requires that the initial discharge from the wastewater holding
ponds flows to groundwater. Thus, Plaintiffs must demonstrate that the alleged
discharge of pollution represents the “functional equivalent of a direct discharge.”
Cnty. of Maui, __ U.S. at ___, 140 S. Ct. at 1476 (“Whether pollutants that arrive at
navigable waters after traveling through groundwater are ‘from’ a point source
depends upon how similar to (or different from) the particular discharge is to a direct
discharge.”).
County of Maui established the factors that district courts must observe to
evaluate the functional equivalent of a direct discharge:
“(1) transit time, (2) distance traveled, (3) the nature of the material
through which the pollutant travels, (4) the extent to which the pollutant
is diluted or chemically changed as it travels, (5) the amount of
pollutant entering the navigable waters relative to the amount of the
pollutant that leaves the point source, (6) the manner by or area in which
the pollutant enters the navigable waters, (7) the degree to which the
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pollution (at that point) has maintained its specific identity.”
Id. at 1476-77. Time and distance should be considered the most important factors.
Id. at 1477.
To aid the Court in deciding Plaintiffs’ motion and to narrow the factual
disputes for trial, if necessary, the Court will follow the lead of the district court in
County of Maui. See Hawaii Wildlife Fund v. Cnty. of Maui, 1:12-cv-00198-SOMKJM, Doc. 456. The parties shall file answers to the following questions. The parties
shall use 30 words or less for each answer, to be submitted no later than February
28, 2022. If a party does not know or cannot provide the exact answer to a question,
the party shall provide the most accurate answer it can in light of the record currently
before the Court. Answers should respond directly to the questions, rather than
viewing the questions as inviting discussion of related matters. The Court will hold
the parties to their answers.
In answering each question, the parties shall provide the title or name of
material on which they rely, along with the ECF number and the page number of
evidence currently in the record that supports each answer. Parties are invited to
provide record citations to every piece of evidence in the record supporting any fact.
Parties shall not cite anything not currently in the record.

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Question

Answer (30 words or less)

Transit Time:
1a. What is the
minimum
documented time
(in days) for
leaking
wastewater to
travel from the
WRRF holding
ponds to the West
Fork of the
Gallatin River?
1b. What is the
average (mean)
time required for
leaking
wastewater to
travel from the
holding ponds to
the West Fork of
the Gallatin
River?
1c. Would
nitrogen pollutants
leaking from the
WRRF holding
ponds travel at a
different rate to
the West Fork of
the Gallatin River
in comparison to
the fluorescein
dye tracer?
Distance
traveled:
5

Title of
Material

ECF No.
and page #

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2a. What is the
minimum distance
that leaking
wastewater travels
from the WRRF
holding ponds to
the West Fork of
the Gallatin
River?
2b. What is the
approximate
distance traveled
by at least half of
the wastewater
leaking from the
WRRF holding
ponds to the West
Fork of the
Gallatin River?
2c. What is the
minimum distance
traveled by
wastewater that
leaks from the
WRRF holding
ponds and
transports through
the WRRF
underdrain to the
West Fork of the
Gallatin River?
2d. What is the
minimum distance
traveled by
wastewater that
leaks from the
WRRF holding
ponds to reach the
beginning of the
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WRRF
underdrain?
2e. What
percentage of
wastewater
leaking from the
WRRF holding
ponds emerges in
the West Fork of
the Gallatin River
within 0.5 mile of
Station 106?
2f. What
percentage of
leaking
wastewater from
the WRRF
emerges in the
West Fork of the
Gallatin River
from within 2
miles of the
WRRF holding
ponds?
3. Nature of the
material through
which the treated
wastewater
travels:
3a. What is the
nature of the
material through
which the leaking
wastewater travels
from the WRRF
holding ponds to
the West Fork of
the Gallatin
River?
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4. Dilution or
chemical change
of pollutant:
4a. To what extent
has the leaking
wastewater been
diluted as it
travels from the
WRRF to the
West Fork of the
Gallatin River?
4b. Leaving aside
any chemical
change occurring
at the holding
ponds themselves,
to what extent has
the leaking
wastewater been
chemically
changed as it
travels from the
WRRF to the
West Fork of the
Gallatin River?
4c. What is the
nature of any
chemical changes
to nitrogen as it
travels from the
WRRF holding
ponds to the West
Fork of the
Gallatin River?
4d. What
percentage of
nitrogen pollutants
are removed by
chemical
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processes or
agronomic uptake
while traveling
between the
WRRF holding
ponds and the
West Fork of the
Gallatin River?
4e. Would
transport through
the WRRF
underdrain effect
different chemical
changes to
nitrogen in
comparison to
transport through
the aquifer alone?
5. Amount of
pollutant:
5a. What is the
amount of
wastewater
leaking from the
WRRF holding
ponds that enters
the West Fork of
the Gallatin River
relative to the total
amount of treated
wastewater
leaking from
WRRF holding
ponds?
5b. What is the
minimum number
of total gallons of
wastewater that
leaks from the
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WRRF holding
pond each day?
5c. Does any
pollutant leak
from the WRRF
holding ponds and
reach the West
Fork of the
Gallatin River? If
so, in what
quantity?
6. Manner by or
areas in which
pollutant enters
the West Fork of
the Gallatin
River:
6a. Describe the
manner by or
areas in which the
leaking
wastewater from
WWRF enters the
West Fork of the
Gallatin River.
7. Degree
pollutant
maintains its
specific identity:
7a. Describe the
degree to which
the treated
wastewater from
the WRRF
emerging in the
West Fork of the
Gallatin River has
maintained its
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specific identity.
8. Could
additional sources
of nitrogen other
than leakage at the
WRRF holding
ponds account for
some or all of the
nitrogen observed
in the West Fork
of the Gallatin
River?
9. Each party may
address 2
additional fact
issues relevant to
the County of
Maui factors that
the Court did not
highlight, but the
party’s position
must be stated in
30 words or less.

IT IS HEREBY ORDERED that the parties shall respond to the above
questions by no later than February 28, 2022.
DATED this 18th day of February, 2022.

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