Cottonwood Environmental Law Center et al v. Edwards et al
Filing
89
ORDER granting in part and denying in part 72 Motion for Summary Judgment; Ron Edwards is dismissed from this case. Big Sky District is not the proper party for Plaintiffs' allegations related to the Meadow Village Golf Court French drain system. 75 Motion for Summary Judgment is DENIED. PLEASE SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 12/17/2021. (MMS)
Case 2:20-cv-00028-BMM Document 89 Filed 12/17/21 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
COTTONWOOD ENVIRONMENTAL
LAW CENTER, MONTANA RIVERS,
and GALLATIN WILDLIFE
ASSOCIATION,
2:20-cv-00028-BU-BMM
ORDER
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.
INTRODUCTION
Cottonwood Environmental Law Center, Montana Rivers, and Gallatin
Wildlife Association (“Plaintiffs”) brought this action against Ron Edwards in his
official capacity as Manager of the Big Sky Water and Sewer District and the Big
Sky Water and Sewer District (collectively “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
Case 2:20-cv-00028-BMM Document 89 Filed 12/17/21 Page 2 of 18
Plaintiffs filed competing motions for summary judgment. (Docs. 72 & 75). The
Court held a hearing on the motions on November 17, 2021. (Doc. 88).
BACKGROUND
Statutory Background
Congress enacted the CWA “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish
that goal, Congress prohibited the “addition” of any pollutant from a “point source”
to “navigable waters” without a NPDES permit. Id. § 1311(a). The CWA authorizes
the Administrator of the U.S. Environmental Protection Agency (“EPA”) or a
delegated state agency to issue a NPDES permit to an entity that seeks to discharge
pollution into navigable waters. See U.S. EPA v. California ex rel. State Water Res.
Control Bd., 426 U.S. 200, 202–03 (1976); Milwaukee v. Illinois, 451 U.S. 304, 310–
311 (1981). EPA authorized the Montana Department of Environmental Quality
(“MT DEQ”) to run its own discharge permit system, known as the Montana
Pollutant Discharge Elimination System (“MPDES”).
The CWA defines “pollutant” broadly to include any solid waste, sewage,
incinerator residue, heat, discarded equipment, sand, as well as industrial, municipal,
and agricultural waste. 33 U.S.C. § 1362(6). It further defines a “point source” as
“any discernible, confined and discrete conveyance [. . .] from which pollutants are
or may be discharged,” including, for example, any “pipe, ditch, channel, tunnel,
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conduit” or “well.” Id. § 1362(14). The CWA defines “discharge of a pollutant” as
“any addition of any pollutant to navigable waters from any point source.” § 1362
(12).
Factual Background
Big Sky District provides wastewater and sewer services for the resort
community at Big Sky, Montana. Big Sky District’s service area encompasses over
6,000 acres and includes single-family residences, condominiums and townhouses,
hotels, restaurants, and commercial centers. Big Sky District collects water from
district water users for treatment at its Water Resources Recovery Facility
(“WRRF”).
The current WRRF began operations in 1996. Big Sky District upgraded the
WRRF in 2004 to increase its treatment capacity. The Big Sky District’s user base
has grown significantly in recent years. MT DEQ noted in 2020 that the WRRF “is
at capacity and does not allow the District to produce reclaimed effluent of the
quality needed for reuse activities.” (Doc. 23-1 at 3). MT DEQ further opined that
the WRRF is “pushed to the limit during wet-weather and spring run-off conditions
[. . .] resulting in elevated nitrogen, biological oxygen demand and total suspended
solids leaving the treatment facility.” (Doc. 23-1 at 2–3).
The WRRF treatment process removes debris and grit, treats nitrogen through
aerobic and anaerobic conditioning, filters the water, and finally disinfects the water.
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Although wastewater goes through a significant treatment process at the WRRF, the
treated effluent retains many pollutants, including nitrogen. Excess nitrogen causes
algae blooms in rivers and streams that can harm aquatic animal and plant life.
Big Sky District stores the treated effluent in lined wastewater holding ponds
at the WRRF. Big Sky District disposes of all its treated effluent through irrigation—
primarily by irrigating the neighboring Meadow Village Golf Course during the
summer months. Big Sky District has a 99-year lease for land disposal of its treated
wastewater on the Meadow Village Golf Course that runs through 2076. (Doc. 224).
MT DEQ regulates Big Sky District’s land disposal irrigation through a
Nutrient Management Plan (“NMP”). (Doc. 22-1). The NMP governs irrigation of
the Meadow Village Golf Course to ensure that the turf grass and plants along the
course absorb the nitrogen delivered through irrigation. (Id. at 11–12, 16, 25). The
NMP’s goal remains to prevent excess nitrogen and other nutrients from leaching
into the groundwater and migrating into surface waters. (Doc. 22-1 at 11, 16, 25).
Boyne U.S.A., Inc. (“Boyne”), the Meadow Village Golf Course owner and
operator, is not a party to the NMP. Big Sky District controls the quality, quantity,
and timing of effluent used in irrigation in compliance with the NMP. Big Sky
District also tracks compliance with the NMP through its operation of lysimeters to
monitor nutrient levels on the Meadow Village Golf Course. (Doc. 22-1 at 19–21).
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Meadow Village Golf Course has installed a French drain system to avoid ponding
of irrigation water and precipitation.
The West Fork of the Gallatin River flows alongside the WRRF, the treated
effluent holding ponds, and the Meadow Village Golf Course. In 2010, MT DEQ
placed the West Fork of the Gallatin River on its CWA Section 303(d) list of water
quality impaired streams. (Doc. 23-3 at 76 (citing 33 U.S.C. § 1313(d))). To address
the water quality issue, in 2010, MT DEQ published a Total Maximum Daily Load
and corresponding water quality improvement plan to clarify the maximum amount
of nitrogen that the West Fork of the Gallatin River could receive and still meet state
water quality standards. (Doc. 23-3 at 76–79). MT DEQ observed that nitrogen
levels in the West Fork of the Gallatin River already exceed maximum quantity, and
that river nitrogen originates from sources including “improper management of landapplied effluent.” (Doc. 23-3 at 83–86).
Groundwater that percolates from the Meadow Village Golf Course naturally
sits in aquifers beneath Big Sky District’s lined holding ponds. The groundwater in
these aquifers is hydrologically connected to the West Fork of the Gallatin River. If
the groundwater level rises too high, the groundwater would “float” the holding pond
liner. This floating of the holding pond liner, in turn, would lead to effluent spillover
from the holding pond. Big Sky District diverts groundwater under its holding ponds
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into the West Fork of the Gallatin River using an underdrain pipe system to prevent
such spillover.
Plaintiffs allege that Big Sky District over-irrigates the Meadow Village Golf
Course. Plaintiffs allege that this over-irrigation causes nitrogen and other pollutants
to flow downhill and enter the West Fork of the Gallatin via two mechanisms: 1) the
Meadow Village Golf Course’s French drains; and/or 2) leaching into the
groundwater system which Big Sky District then pipes into the West Fork of the
Gallatin River via the underdrain system.
Plaintiffs conducted a fluorescein dye test to determine if, and where,
pollutants from the WRRF report to the West Fork of the Gallatin river. (Doc. 763). Plaintiffs’ testing indicates that fluorescein dye added to the wastewater holding
ponds at the WRRF reports to the West Fork of the Gallatin River near the
underdrain discharge point and in the drainage system for the Meadow Village Golf
Course. (Id. at 21-22). Plaintiffs claim the dye results demonstrate that the storage
ponds currently leak about 10 gallons of treated effluent per minute, and that the
leakage gets discharged to the West Fork of the Gallatin River via the underdrain.
(Doc. 76-3 at 32-33). Big Sky District’s expert admits that Plaintiffs’ study
demonstrates the storage ponds currently leak, but Big Sky District’s expert claims
that Plaintiffs cannot quantify the leakage rate. (Doc. 76-5 at 15). Big Sky District’s
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expert also suggests that only a de minimis quantity of irrigation water enters the
golf course drain. (Id.)
Plaintiffs allege that Big Sky District must seek a NPDES permit for the
discharge of nitrogen originating in its holding ponds and entering the West Fork of
the Gallatin River via the underdrain pipe system and the Meadow Village French
drains. Plaintiffs also allege that Big Sky District must seek a NPDES permit for
discharge of nitrogen applied as irrigation to the Meadow Village Golf Course that
discharges via the French drain system.
Legal Standard
Summary judgment is proper if the moving party demonstrates “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of
informing the Court of the basis for its motion and identifying those portions of “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotation marks omitted).
The movant satisfies its burden when the documentary evidence produced by
the parties permits only one conclusion. Anderson, 477 U.S. at 251–52. Where the
moving party has met its initial burden, the party opposing the motion “may not rest
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upon the mere allegations or denials of his pleading, but [. . .] must set forth specific
facts showing that there is a genuine issue for trial.” Id. at 248 (internal quotation
marks omitted).
ANALYSIS
The parties’ motions for summary judgment present the following issues: 1)
whether Big Sky District is a proper party for Plaintiffs’ claims relating to the
Meadow Village Golf Course French drain system; 2) whether the WRRF
wastewater holding ponds and/or underdrain system is a point source conveyance of
a pollutant requiring an NPDES permit; 3) whether Ron Edwards is a proper party
given that Big Sky District is a defendant; and 4) whether civil penalties can be
awarded should Plaintiffs prevail.
I.
Big Sky District Is Not the Proper Party for the Alleged CWA Violation
Regarding the Meadow Village Golf Course French Drain System.
Plaintiffs allege that Big Sky District violates the CWA by over-irrigating the
Meadow Village Golf Course and thus adding nitrogen pollutants beyond the
agronomic uptake rate. (Doc. 76 at 18-24). To assert a violation of the Clean Water
Act, the Plaintiffs must establish that “the defendant (1) discharged, i.e., added (2) a
pollutant (3) to navigable waters (4) from (5) a point source.” Pac. Coast Fed’n of
Fishermen’s Ass’ns v. Glaser, 945 F.3d 1076, 1083 (9th Cir. 2019) (quoting Comm.
to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir.
1993)).
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Plaintiffs identify three potential point-source mechanisms by which the
irrigation-based nitrogen pollution enters the West Fork of the Gallatin River: 1) the
French drain system on the Meadow Village Golf Course; 2) the underdrain pipe
system beneath the WRRF wastewater holding ponds; and 3) the WRRF wastewater
holding ponds themselves. Big Sky District argues that it is entitled summary
judgment with respect to any claims pertaining to the French drain system on the
Meadow Village Golf Course because it does not own or operate the Meadow
Village Golf Course. (Doc. 74 at 12-14).
The relevant inquiry regarding control of a point source under the Clean Water
Act is not which entity generates the pollutant, but which entity controls the
discharging point source mechanism. See Friends of Outlet Creek v. Grist Creek
Aggregates, LLC, No. 16-cv-00431, 2018 U.S. Dist. LEXIS 225499, at *20 (N.D.
Cal. Apr. 23, 2018) Thus, it is “ownership of a point source [that] will trigger
liability” and “not the discharge-causing conduct.” Sierra Club v. El Paso Gold
Mines, Inc., 421 F.3d 1133, 1144 (10th Cir. 2005), as corrected (Oct. 21, 2005).
Meadow Village Golf Course maintains control over and owns the French
drain system that Plaintiffs argue violates the CWA. Plaintiffs argue that because
Big Sky District operates the irrigation system and has ultimate control over when
and how much irrigation water is applied, that Big Sky District should be liable for
the alleged violations of the CWA. Big Sky District’s control over the wastewater
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quantity and quality does not change the fact that Meadow Village Golf Course
ultimately stands as the liable party for discharges from its French drain system.
Meadow Village Golf Course would be required to apply for and receive an NPDES
permit if the discharge of irrigation water from the French drain system were found
to constitute a CWA violation. Big Sky District correctly argues that it is not the
proper party for allegations of CWA violations that arise from discharges through
the Meadow Village Golf Course’s French drain system.
The Court will grant Plaintiffs leave to amend their Complaint (Doc. 8) to
include the Meadow Village Golf Course’s owner, Boyne, as a party in this lawsuit.
Allowing leave to amend will further judicial economy and will not prejudice Boyne.
Big Sky District indemnifies Boyne from suits stemming from its irrigation. (Doc.
22-4 at 6-7). Big Sky District must “defend all actions [connected with the
operation, maintenance and use of the irrigation system] and pay all charges of
attorneys and all of the costs and expenses of any kind arising out of any such
liability, damage, loss, claims, demands and actions.” (Doc. 22-4 at 6-7). Plaintiffs
were able to access the Meadow Village Golf Course French drain system during
discovery to conduct fluorescein dye studies. (Doc. 76-2 at 19-20).
II.
Factual Disputes Regarding the WRRF Holding Ponds and Underdrain
Preclude Summary Judgement for Either Party.
Having determined that the proper defendant has not been presented the
opportunity to defend against Plaintiffs’ allegations regarding the Meadow Village
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Golf Course French drain system, the Court will not analyze now whether the French
drain system constitutes a point source discharge of a pollutant in violation of the
CWA. The Court will confine its analysis to the two alleged point sources in the
control of Big Sky District—the WRRF underdrain pipe and wastewater holding
ponds. The Court determines, for the reasons discussed below, that summary
judgment would not be appropriate for either party with respect to those potential
point sources.
As noted previously, to establish a violation of the CWA Plaintiffs must
demonstrate “the defendant (1) discharged, i.e., added (2) a pollutant (3) to navigable
waters (4) from (5) a point source.” Pac. Coast Fed’n of Fishermen’s Ass’ns, 945
F.3d at 1083. No dispute exists that water from the holding ponds, via leakage from
the wastewater holding ponds and irrigation on the golf course, enters the West Fork
of the Gallatin River, a navigable waterway. (Doc. 84 at 8-9.)
Big Sky District makes the following arguments against CWA liability: 1) the
fluorescein dye tests completed by Plaintiff do not demonstrate that nitrogen
pollution from the WRRF is being discharged to the West Fork of the Gallatin River;
2) the WRRF wastewater holding ponds do not constitute a point source; and 3) the
underdrain pipe is not adding any pollutants, but merely providing a preferential path
for groundwater flow. (Doc. 74 at 16-24). Plaintiffs argue that the fluorescein dye
tests prove that nitrogen pollution from the WRRF reaches the West Fork of the
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Gallatin River. (Doc. 77 at 16-17.). Plaintiffs argue that, having established that any
pollution from the WRRF discharges from the underdrain pipe, an NPDES permit
shall be required and summary judgment would be appropriate. (Id.)
The parties’ arguments present factual disputes that must be resolved at trial.
The Court first must determine whether Big Sky District discharges a pollutant to
the West Fork of the Gallatin River. Big Sky District argues that most, if not all, of
the nitrogen load from irrigation remains immobilized in soils or captured by
agronomic uptake. Big Sky District also argues that given the many potential sources
of nitrogen contamination upstream of the golf course and WRRF, the source of
nitrogen loading in the groundwater below the golf course and wastewater holding
ponds has not been determined.
The Court possesses serious doubts as to the validity of Big Sky District’s
contentions. The transport of fluorescein dye appears to indicate of the transport of
nitrogen pollution. The Court recognizes, however, that Big Sky District’s argument
presents a genuine factual dispute as to whether Big Sky District is the party
discharging the nitrogen. Big Sky District’s argument also presents the question of
how and in what quantity nitrogen is reaches the West Fork of the Gallatin River, in
particular with respect to the irrigation water.
The Court then must determine that a point source conveyance, or the
functional equivalent, discharges that pollutant into the West Fork of the Gallatin
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River. See Cnty. of Maui v. Hawaii Wildlife Fund, __ U.S. __, __, 140 S. Ct. 1462,
1476 (2020). Plaintiffs’ alleged point source mechanisms under the control of Big
Sky District involve at least some groundwater transport before the pollutants
allegedly report to the West Fork of the Gallatin River. Regardless of whether Big
Sky District applies the pollutant via irrigation at the Meadow Village Golf Course,
or pollutant transport results from leakage from the WRRF wastewater holding
ponds, the pollutant will move through an aquifer before reaching the WRRF
underdrain pipe or the West Fork of the Gallatin River directly.
The U.S. Supreme Court provided guidance on pollutant discharges that travel
through groundwater. The U.S. Supreme Court determined that a discharge to
groundwater may be a point source where it is “the functional equivalent of a direct
discharge.” Cnty. of Maui, 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.” Id. The U.S. Supreme Court enumerated the following factors for Courts
to consider when assessing a 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
pollution (at that point) has maintained its specific identity.”
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Id. at 1476-77. Time and distance should be considered the most important factors.
Id. at 1477.
The parties’ disputes over these factors preclude summary judgment. The
parties’ experts disagree on the pollutant transport mechanisms, the nature of the
subsurface material with regard to its effect on pollutant transport, the amount of
pollutant entering the West Fork of the Gallatin River, and the extent to which the
pollutant dilutes or chemically changes as it travels. (Compare Doc. 76-2 with Doc.
76-3). Given that the Supreme Court listed precisely those contended issues for
courts to consider when evaluating a functional equivalent of a direct discharge, the
Court cannot conclude that no dispute of material fact exists.
Clarifying the factual disputes proves particularly necessary in this case,
where the CWA violations asserted by Plaintiffs may be more properly addressed
by state regulation. Congress intended to leave substantial responsibility and
autonomy to the States with respect to groundwater pollution and nonpoint source
pollution. Id. at 1471. The State of Montana regulates both the acceptable amount of
leakage from the WRRF holding ponds (Doc. 73 at ¶ 10) and the agronomic uptake
rates and irrigation practices at the Meadow Village Golf Course. (Doc. 22-1). The
Court must establish facts sufficient to determine whether the discharges alleged by
Plaintiffs more properly should be regulated by the State of Montana. The Court
cannot do so without first having determined pollutant transport and quantity. The
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Court will deny both parties’ motions for summary judgement with respect to the
merits of the CWA claims.
At oral argument the Court asked Big Sky District whether the pipes
discharging into the wastewater holding ponds at the WRRF could be considered a
point source discharge, The Court will request that the parties submit supplemental
briefs to address that issue.
III.
Ron Edwards Is Not a Proper Party Given that Big Sky District Is a
Defendant.
Plaintiffs sue Ron Edwards “in his official capacity” as the manager of the
Big Sky Water and Sewer District. (Doc. 8 at ¶ 33). Big Sky District argues that
suing Ron Edwards in his official capacity while bringing the same claims against
the Big Sky Water and Sewer District is duplicative. (Doc. 74 at 28-29). The Court
agrees.
Where a complaint asserts the same claims “against a municipal entity and a
municipal official in his or her official capacity, federal courts will dismiss the
official-capacity claim.” Thorpe ex rel. D.T. v. Breathitt Cnty. Bd. of Educ., 932 F.
Supp. 2d 799, 802 (E.D. Ky. 2013); see also Grissom v. Dist. of Columbia, 853 F.
Supp. 2d 118, 125 (D.D.C. 2012). Plaintiffs will not be denied any form of relief if
the Court dismisses Ron Edwards. The Court will grant summary judgment for all
claims against Ron Edwards in his official capacity as Manager of the Big Sky Water
and Sewer District.
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IV.
Plaintiffs May Seek Civil Penalties.
Big Sky District argues that Plaintiffs should not be allowed to seek civil
penalties because Plaintiffs failed to plead such relief. (Doc. 74 at 25-27). Big Sky
District notes that Plaintiffs did not explicitly request CWA civil penalties in their
Complaint. Plaintiffs’ Complaint requests declaratory and injunctive relief, litigation
costs and expenses, and “other such relief as the Court may deem just and proper.”
(Doc. 8 at 12). Big Sky District argues that Plaintiffs request for “other relief”
represents boilerplate language that cannot include monetary relief when the
complaint otherwise only includes equitable relief. (Doc. 74 at 26-27).
The plain language of the Clean Water Act undermines Big Sky District’s
argument. The CWA explicitly provides that illegal pollutant discharges subject the
discharger to civil penalties. 33 U.S.C. §1319(d). Big Sky District cannot claim to
be caught unaware of potential penalties when the CWA clearly prescribes civil
penalties and establishes the exact factors that courts shall consider when assessing
those penalties. Id. The citizen suit provision of the CWA also clearly states that
district courts “shall have jurisdiction [. . .] to apply any appropriate civil penalties.”
33 U.S.C. §1365(a). The fact that Plaintiffs request another form of monetary relief
weakens Big Sky District’s argument. The Court will allow Plaintiffs to amend their
Complaint to seek civil penalties.
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Big Sky District raises only one potential source of prejudice resulting from
the Court allowing the Plaintiffs to seek civil penalties. Big Sky District notes that
defendants in CWA suits often retain experts to provide an opinion on the civil
penalties. (Doc. 74 at 27). Big Sky District did not seek an expert opinion on civil
penalties in this case and points out that discovery has now closed. (Id.) To alleviate
Big Sky District’s concerns of potential prejudice the Court will allow both parties
limited discovery before briefing the proper remedies should Plaintiffs succeed on
their CWA claims.
ORDER
Accordingly, IT IS ORDERED that:
Plaintiffs’ Motion for Summary Judgment (Doc. 75) is DENIED.
Defendants’ Motion for Summary Judgment (Doc. 72) is GRANTED, IN
PART, AND DENIED, IN PART.
o Ron Edwards is dismissed from this case.
o Big Sky District is not the proper party for Plaintiffs’ allegations
related to the Meadow Village Golf Course French drain system.
Plaintiffs may amend their Complaint (Doc. 8) to add Boyne, as owner of
the Meadow Village Golf Course, as a party to this suit
Plaintiffs may amend their Complaint (Doc. 8) to include civil penalties in
the prayer for relief.
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The parties shall each submit a supplemental brief addressing whether
discharge pipes to the WRRF wastewater storage ponds could be
considered a point source conveyance. The supplemental brief may not
exceed 10 pages and must be submitted by January 28, 2021.
Should Plaintiffs’ CWA claims succeed, the Court will allow both parties
limited discovery and briefing to address the proper civil penalties that
should be imposed.
Dated the 17th day of December, 2021.
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