IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

    1. The Sierra Club brings this citizen suit to compel Secretary of Agriculture Daniel Glickman and the United States Forest Service (collectively the "Forest Service") to comply with the state certification requirements set forth in section 401 of the Clean Water Act. 33 U.S.C. § 1341. The Forest Service has violated section 401 of the Clean Water Act and section 706(2)(A) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"), by improperly authorizing operation and maintenance work conducted by the City of Colorado Springs on Pikes Peak Highway in the Pikes-San Isabel National Forest. The Sierra Club seeks declaratory and injunctive relief.

PARTIES

    2. The Sierra Club is a national, non-profit organization with 11,839 members in the State of Colorado. The Sierra Club is dedicated to protecting the environmental quality and ecosystems, including wetland, aquatic, and riparian systems, of the Pikes Peak area. Members of the Sierra Club engage in outdoor recreation and other activities within the riparian and wetland areas that are directly affected by gravel discharges from the Pikes Peak Highway (the "Highway"). These members’ activities include hiking, wildlife viewing, nature study and appreciation, and photography. Sierra Club members expect to continue using these affected areas for the same purposes in the future. Accordingly, these members’ recreational, educational, aesthetic, and/or environmental interests in the quality of streams and wetlands altered by the Highway have been, are being, and will continue to be adversely affected by the Forest Service’s violation of the Clean Water Act and APA as set forth herein.

    3. Defendant Daniel Glickman is the Secretary of the United States Department of Agriculture, and in that role is charged with managing national forest lands in a manner that is consistent with federal law. Secretary Glickman is sued in his official capacity only.

    4. Defendant United States Forest Service is the agency that is responsible for managing national forest lands, including the Pikes-San Isabel National Forest. The Forest Service has a duty to manage national forest lands in a manner that is consistent with federal law.

JURISDICTION AND VENUE

    5. The Court has subject matter jurisdiction over this action pursuant to 33 U.S.C. § 1365(a) (Clean Water Act’s citizens suit provision), 28 U.S.C. §§ 2201-2202 (declaratory judgment action), 28 U.S.C. § 1331 (federal question jurisdiction), and 5 U.S.C. § 706 (APA review). In accordance with the notice requirements of the Clean Water Act’s citizen suit provision, the Sierra Club has provided sixty days written notice to all relevant parties regarding the allegations on which this suit is based. 33 U.S.C. § 1365(b); 40 C.F.R. § 135.2.

    6. Venue is appropriate in this judicial district and in this court pursuant to 28 U.S.C. § 1391(b), because the events and omissions giving rise to these claims occurred in the District of Colorado.

BACKGROUND

    7. Congress passed the Clean Water Act in 1972 to "restore and maintain the chemical, physical, and biological integrity of the nation’s waters." Clean Water Act § 101(a), 33 U.S.C. § 1251. In the Act, Congress identified the national goal of eliminating "the discharge of pollutants into navigable waters" by 1985. Clean Water Act § 101(a)(1), 33 U.S.C. § 1251(a)(1). In furtherance of this goal, the Clean Water Act provides a comprehensive approach for the regulation of pollution discharges into the waters of the United States.

    8. Section 401 of the Clean Water Act mandates that a federal agency, prior to approving a license or permit that authorizes an activity that may result in a discharge into navigable waters, must first obtain state certification that the contemplated activity will not prevent affected waters from meeting applicable water quality standards. 33 U.S.C. § 1341(a)(1).

    9. Upon receipt of a request for certification under section 401, the responsible state agency may grant, conditionally grant, deny, or waive such certification. See 33 U.S.C. § § 1341(a)(1), 1341(d).

    10. A certifying state agency may impose conditions as necessary to ensure that the contemplated activity will be conducted in a manner that will not prevent affected waters from meeting water quality standards. 33 U.S.C. § 1341(d).

    11. Conditions imposed by a certifying state agency become part of the license or permit. 33 U.S.C. § 1341(d).

    12. Colorado water quality standards dictate that the water quality of surface waters for which no conflicting authorizations have been issued, shall be

free from substances attributable to human-caused point source or nonpoint source discharge in amounts, concentrations or combinations which . . . . can settle to form bottom deposits detrimental to the beneficial uses. Depositions are stream bottom buildup of materials which include but are not limited to . . .silt, or mud; or . . . are harmful to the beneficial uses or toxic to humans, animals, plants, or aquatic life. . .

5 C.C.R. 1002-31.11.

    13. Colorado water quality standards applicable to wetlands dictate that wetlands "shall be free from substances attributable to human-caused point source or nonpoint source discharge in amounts, concentrations or combinations which . . . create a nuisance or harm water quality dependent functions. . . or. . . are toxic to. . . plants, or aquatic life of the wetland." 5 C.C.R. 1002-31.11.

    14. The waters affected by gravel discharges from Pikes Peak Highway, including Severy Creek, Ski Creek, and South Catamount Reservoir, flow into Fountain Creek, a navigable water. One of the beneficial uses that the affected waters are designated to support is "Class I -- Cold Water Aquatic Life." For a water body to support this beneficial use it must be "capable of sustaining a wide variety of cold water biota, including sensitive species," or it must be capable of sustaining such biota but for correctable water quality conditions. 5 C.C.R. 1002-31.13(1)(c)(i). Colorado regulations further provide that "[w]aters shall be considered capable of sustaining such biota where physical habitat, water flows or levels, and water quality conditions result in no substantial impairment of the abundance and diversity of species." Id.

    15. Section 706(2)(A) of the Administrative Procedure Act empowers citizens to petition the Court to set aside an agency action or conclusion that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

    16. Pikes Peak Highway (the "Highway") is not an ordinary mountain road. The Highway is a toll road that ascends the dramatic 14,000 foot summit of Pikes Peak. It is unpaved for the final 12 miles. The City of Colorado Springs operates the Highway pursuant to a special use permit issued by the Forest Service, and maintains it for nearly year-round use through the application of vast quantities of gravel. During the twenty-year period from 1974 to 1993, the City applied 1,525,456 tons of maintenance material to the Highway. Between 1989 and 1992, the City applied an average of 29,229 tons of gravel to the Highway each year. In 1995 and 1996, the City applied at least 11,500 tons of gravel to the Highway per year.

    17. All-season access and heavy traffic, combined with Pikes Peak’s steep slopes and harsh weather conditions, cause significant quantities of gravel to erode from the Highway surface and migrate into down-slope streams and wetlands. A June 1997 erosion study prepared for the City by Drexel Barrell & Co. indicates the magnitude of the erosion problem:

20 percent (3 feet plus 3 feet divided by 29 feet) of the average ton of material placed per mile migrates into the downstream watershed. Above treeline, this method produces a value of 304 tons per mile of road a year. Below treeline, this method produces a value of 164 tons per mile per year.

Drainage, Erosion and Sediment Control Plan and Preliminary Road Design for the Pikes Peak Highway, prepared by Drexel Barrell & Co. for the City of Colorado Springs at 83 (June 1997) (hereinafter "Drexel Barrell Plan"). Based on the formula set forth in the City-commissioned Drexel Barrell Plan, approximately 305,091 tons of gravel were added to the downstream watershed between 1974 and 1993. Approximately 102,757 tons of gravel from the Highway were added to the downstream watershed since 1980. These enormous quantities of gravel choke off the life from streams and wetlands on Pikes Peak.

    18. Gravel discharges have caused excessive sediment loading in Ski Creek, which flows into South Catamount Reservoir. These discharges have caused channel incision, aggradation, and have filled beaver ponds along reaches of Ski Creek. Pikes Peak Highway Erosion and Sedimentation Study, Prepared by Gail Snyder, Robin Anderson, and Thomas Huber at 66 (Dec. 1994). Gravel discharges have also impacted the headwaters of Ski Creek, a wetland area. Highway discharges have created a large delta at the inflow into South Catamount Reservoir and are filling the Severy Creek wetland. Id. at 66-74.

    19. On December 18, 1990, the Forest Service approved the City of Colorado Springs’s special use permit without first obtaining section 401 certification from the State of Colorado.

    20. On November 14, 1997, the Forest Service approved the City of Colorado Springs’s amended special use permit without first obtaining section 401 certification from the State of Colorado.

    21. The Forest Service has consistently approved the City’s annual Highway operating plans and budgets without first obtaining section 401 certification from the State of Colorado.

    22. The Forest Service’s actions in approving the City’s special use permit, amended special use permit, and annual operating plans and budgets in the absence of state certification constitute conduct that is arbitrary, capricious, and not in accordance with law within the meaning of APA section 706(2)(A), 5 U.S.C. § 706(2)(A).

FIRST CLAIM FOR RELIEF

    23. The allegations contained in Paragraphs 1-22 are incorporated by reference.

    24. The Forest Service’s approvals of the City’s special use permit, amended special use permit, and annual operating plans and budgets constitute authorizations of activities that may result in discharges into navigable waters. As such, the Forest Service may only grant these licenses or permits after obtaining state certification that these discharges will not prevent affected waters from meeting state water quality standards. The Forest Service issued these authorizations without first obtaining state certification in violation of Clean Water Act section 401. 33 U.S.C. § 1341.

SECOND CLAIM FOR RELIEF

    25. The allegations contained in Paragraphs 1-24 are incorporated by reference.

    26. The Forest Service’s decisions to approve the City’s special use permit, amended special use permit, and annual operating plans and budgets prior to obtaining the necessary state certification constitute agency actions that are arbitrary, capricious, and contrary to law within the meaning of section 706(2)(A) of the APA. 5 U.S.C. § 706(2)(A).

PRAYER FOR RELIEF

    WHEREFORE, Sierra Club respectfully prays that this Court grant it the following relief:

    (1) A declaration that the Forest Service violated section 401 of the Clean Water Act, 33 U.S.C. § 1341, by approving the City of Colorado Springs’s special use permit, amended special use permit, and annual operating plans and budgets prior to obtaining the necessary state certification;

    (2) An award of injunctive relief requiring the Forest Service to seek the necessary state certification within thirty days of the entry of the Court’s order, and if the Forest Service fails to seek the necessary certification, enjoining further activity under the special use permit, amended special use permit, and the annual operating plans and budgets;

    (3) A decision to retain jurisdiction of this matter to ensure compliance with its decree;

    (4) An award of plaintiff’s attorneys’ fees, expert fees, and other costs; and

    (5) Such other relief as the Court deems proper.

    Dated this ____ day of March, 1998.

Plaintiffs' Address:

Sierra Club
P.O. Box 787
Woodland Park, CO 80866