The legal dance that started on Earth Day
Environmental groups attempt to halt irrigation of golf course and new sewer hook ups
The Big Sky County Water and Sewer District 363 (BSCWSD) has been engaged in a strategic legal dance typical of lawsuits since Earth Day of 2020. It was then that the District received notice of intent to sue from Montana Rivers, Gallatin Wildlife Association, and Cottonwood Environmental Law Center – deemed “Community Groups” in the proceedings. The Community Groups allege a violation of the Clean Water Act and also sent notice to the U.S. Environmental Protection Agency and the Montana Department of Environmental Quality for what they believe is a “wastewater pond discharging pollution into the West Fork of the Gallatin River below Big Sky Resort without a Clean Water Act permit.” The BSCWSD retaining pond in question is visible from Highway 64, due east from Little Coyote Rd.
“The Community Groups previously sent a NOI (Notice of Intent) after collecting water samples above and below the WRRF (Water Resource Recovery Facility). The Community Groups also collected samples of water coming directly off the retaining pond wall at the Big Sky Water and Sewer District's Water Resources Recovery Facility (WRRF) in May 2020. The water discharges directly into the West Fork of the Gallatin River,” according to a supplemental letter sent to the district in June from John Meyer, attorney for Community Groups.
Meyer included lab results dated May 18, 2020 that show an “increase in chloride, sulfate, and other wastewater pollutants, which are regulated under the Clean Water Act (CWA) Pollutant Priority List.”
“The holding pond is a discernible, confined and discrete conveyance from which pollutants are being discharged, both hydrologically and through the earthen walls of the holding ponds which are acting like conduits to convey pollutants to the West Fork of the Gallatin River. The WRRF holding pond is discharging pollutant to navigable waters without an NPDES permit in violation of the CWA,” Meyer stated in the letter.
BSCWSD General Manager Ron Edwards told LPL in late April 2020 that the retaining pond pipe in question which was photographed by the group was actually part of an under drain system engineered to keep the groundwater level from interfering with the pond, since the pond is so deep and the bottom of it is below the water table year round.
In early February the Community Groups filed a Motion for Preliminary Injunction, urging the court to take action before May 1 to prevent the District from accepting any sewer hookups from new home construction and from irrigating the Meadow Village golf course with treated wastewater that contains nitrogen in a concentration greater than 10 mg/l. The motion also requests publication of daily nitrogen concentrations in wastewater used to irrigate the Meadow Village golf course.
“The requested relief is necessary because the Montana DEQ has indicated the Defendant’s disposal of its treated wastewater is polluting the West Fork of the Gallatin River,” according to the Motion.
It has since become a debate of science, definitions and legal cases. Legal counsel for the District responded on Feb. 17 with a Brief in Opposition to Plantiffs’ Motion for Preliminary Injunction.
The Brief in Opposition noted that a report cited by the plaintiffs is a decade old and does not reflect current conditions. Also, according to Edwards, the Meadow Village golf course has been irrigated with treated wastewater since the 1970s, DEQ approved the irrigation of the golf course with treated wastewater, and the District has continually complied with the irrigation requirements in the Nutrient Management Plan. The Brief in Opposition also stated that nitrogen levels in wastewater effluent have decreased over time and will continue to do so when the WRRF expansion is completed.
The brief continued, stating that there is no environmental emergency here that warrants the “extraordinary and drastic remedy” of injunctive relief.
According to the Brief in Opposition, the District also seeks to protect public interest and preserve water quality of the West Fork of the Gallatin River, “But the requested injunction would not accomplish that goal. It is not in the public interest to order the District to cease a beneficial use of treated wastewater effluent, when the District is irrigating in a manner approved and monitored by DEQ, when that irrigation has minimal, if any, current environmental impact, and when such an order would risk a far worse environmental outcome.”
Since storage ponds are nearing capacity, elimination of the irrigation option for disposal would land the District in a “Catch-22”: “It would either have to shut down its treatment system, meaning thousands of people and businesses in Big Sky would be unable to take showers, flush their toilets, or run water down their drains. Or it could continue operating the system and let the ponds overflow, sending treated wastewater directly into the West Fork of the Gallatin River.”