IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 98-M-662

SIERRA CLUB,

Plaintiff,

v.

DANIEL GLICKMAN, in his official capacity as Secretary of Agriculture of the United States; the UNITED STATES FOREST SERVICE; the CITY OF COLORADO SPRINGS, a municipal corporation; MARY LOU MAKEPEACE, in her official capacity as Mayor of the City of Colorado Springs; and JAMES MULLEN, in his official capacity as City Manager for the City of Colorado Springs,

Defendants.

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INJUNCTIVE RELIEF

______________________________________________________________________________

INTRODUCTION

1. The Sierra Club brings this citizen suit to halt Clean Water Act violations occurring on Pikes Peak, located in the Pikes-San Isabel National Forest near Colorado Springs. These violations result from activities associated with the Pikes Peak Highway, a road that ascends the 14,000 foot summit of Pikes Peak. The Sierra Club also seeks to stop Clean Water Act violations associated with a planned reconstruction and expansion of the Pikes Peak Summit House, a visitor center located at the summit of Pikes Peak.

2. Defendants, the United States Forest Service and the Secretary of Agriculture Dan Glickman (collectively the "Forest Service") have violated section 401 of the Clean Water Act ("CWA"), 33 U.S.C. § 1341, and section 706(2)(A) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), by improperly authorizing the City of Colorado Springs to operate, maintain, and conduct construction work on Pikes Peak Highway (the "Highway") and the Pikes Peak Summit House (the "Summit House") without requiring prior state certification pursuant to section 401 of the CWA, 33 U.S.C. § 1341.

3. The City of Colorado Springs (the "City") has violated the CWA by failing to obtain State certification pursuant to CWA section 401 ("section 401") when seeking licenses and permits to operate, maintain, and conduct construction work on the Highway and Summit House, and by failing to provide the Forest Service with proof of such certification.

4. The City has also violated sections 301 and 402 of the CWA by discharging gravel from the highway into down-slope streams and wetlands without proper permits. 33 U.S.C. § § 1311, 1342. In the alternative, to the extent that section 404 of the CWA is relevant to the City’s discharges, the City has violated that section by discharging sand and gravel into waters of the United States without proper permits or authorizations. 33 U.S.C. § 1344.

PARTIES

5. 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 sand and gravel discharges from the Highway and that will be affected by discharges resulting from the Summit House reconstruction and expansion. Sierra Club members’ activities in the affected areas include hiking, wildlife viewing, nature study and appreciation, and photography. Sierra Club members expect to continue using the affected areas for the same purposes in the future. Accordingly, these members’ recreational, educational, aesthetic, and/or environmental interests have been, are being, and will continue to be adversely affected by the Forest Service’s violation of the CWA and APA, and by the City’s violations of the CWA.

6. 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.

7. Defendant United States Forest Service is the agency that is responsible for managing national forest lands, including the Pikes-San Isabel National Forest where the

Highway and Summit House are located. The Forest Service has a duty to manage national forest lands in a manner that is consistent with federal law.

8. Defendant City of Colorado Springs is a municipal corporation. Among its other duties, the City operates and maintains the Highway and Summit House pursuant to a regularly amended special use permit issued by the Forest Service. The special use permit requires the City to ensure that it operates and maintains the Highway and Summit House in a manner consistent with applicable laws.

9. Defendant Mary Lou Makepeace, the Mayor of Colorado Springs, is the presiding member of the Colorado Springs City Council, the organization charged with ensuring that the City conducts its business in accordance with applicable laws. Mayor Makepeace is sued in her official capacity only.

10. Defendant James Mullen, City Manager of the City of Colorado Springs, is responsible for directing and supervising the administration of all departments, offices, and agencies of the City. The City Manager is responsible for the proper and effective administration of the City’s affairs. Mr. Mullen is sued in his official capacity only.

JURISDICTION AND VENUE

11. The Court has subject matter jurisdiction over this action pursuant to 33 U.S.C.

§ 1365(a) (CWA citizen 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 CWA 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.

12. 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.

LEGAL FRAMEWORK

13. Congress passed the CWA in 1972 to "restore and maintain the chemical, physical, and biological integrity of the nation’s waters." CWA section 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. CWA section 101(a)(1), 33 U.S.C. § 1251(a)(1).

In furtherance of this goal, the CWA provides a comprehensive approach for the regulation of pollution discharges into the waters of the United States.

CWA Section 401

14. Section 401 of the CWA mandates that before a federal agency approves a license or permit authorizing an activity that may result in a discharge into navigable waters, the applicant for the license or permit must obtain and provide the agency with certification by the relevant state that the contemplated activity is consistent with the attainment of applicable water quality standards. 33 U.S.C. § 1341(a)(1). Section 401 provides as follows:

Any applicant for a Federal license or permit. . . which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates. . . that any such discharge will comply with the applicable provisions of section 1311, 1312, 1313, 1316, and 1317 of this title. . . . No license or permit shall be granted until the certification required by this section has been obtained or has been waived [due to delay by the state] . . . .

33 U.S.C. § 1341(a)(1) (emphasis added).

15. Upon receipt of a party’s request for certification under section 401, the certifying state agency, which in Colorado is the Colorado Department of Public Health and the Environment, may grant, conditionally grant, deny, or waive such certification. See 33 U.S.C. § § 1341(a)(1), 1341(d).

16. 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).

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

CWA Sections 301, 402 and 404

18. Section 301 of the of the CWA prohibits the "discharge of any pollutant by any person" without a proper permit. See 33 U.S.C. § 1311(a). A "discharge" is "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). A "pollutant" includes solid waste, rock, and sand. 33 U.S.C. § 1362(6).

19. Section 402(a) of the CWA requires the prospective discharger of a pollutant to obtain a permit from the United States Environmental Protection Agency ("EPA") or the relevant state permitting authority before discharging the pollutant from a point source. See 33 U.S.C. § 1342(a). A "point source" includes "any discernible, confined and discrete conveyance, including but not limited to any… ditch, channel, conduit, … [or] discrete fissure … from which pollutants may be discharged." 33 U.S.C. § 1362(14).

20. In addition, section 402(p) of the CWA requires entities to obtain discharge permits before discharging stormwater that contains pollutants. 33 U.S.C. § 1342(p); 40 C.F.R. § 122.26(6).

21. Section 404 of the CWA empowers the United States Army Corps of Engineers (the "Corps") to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). Prospective dischargers of dredged or fill material into wetlands must obtain a permit from the Corps prior to the discharge. 33 U.S.C. § § 1344(a).

APA Section 706

22. Section 706(2)(A) of the APA 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).

FACTUAL BACKGROUND

23. The City maintains and operates the Pikes Peak Recreation Corridor (the "Corridor"), which includes the Highway and the Summit House, pursuant to a special use permit issued by the Forest Service (the "Special Use Permit"). The City submits annual operating plans and budgets for the Corridor to the Forest Service for approval (the "operating plans and budgets"). When approved by the Forest Service, these operating plans and budgets are incorporated into the Special Use Permit. In 1997, the Forest Service approved a Special Use Permit amendment authorizing the City to undertake certain other projects in the Corridor (the "1997 Amendment").

24. The Highway ascends the 14,000 foot summit of Pikes Peak in the Pikes-San Isabel National Forest. The final twelve miles of the Highway are unpaved, and the City maintains this stretch of road by annually applying thousands of tons of gravel to its surface, by grading the road, and by conducting various other work. Highway maintenance and operation practices, combined with heavy traffic, all-season access, steep slopes, and harsh weather conditions, cause significant quantities of sand and gravel to erode from the Highway surface and migrate into down-slope streams and wetlands. This sand and gravel is discharged from ditches, culverts and other conveyances which are "point sources" within the meaning of the CWA.

25. The Summit House is a visitor center located at the top of the mountain. The Summit House contains a snack bar, gift shop, and public restrooms. The City is authorized by the Special Use Permit to operate the Summit House, and it does so through a contract with a third-party concessionaire. In the 1997 Amendment, the Forest Service approved a City project to reconstruct and expand the Summit House. Activities associated with this reconstruction and expansion may result in discharges of pollutants into down-slope navigable waters.

26. During the twenty-year period from 1974 to 1993, the City applied 1,525,456 tons of gravel and other maintenance material to the Highway. In 1995 and 1996, the City applied at least 11,500 tons of gravel to the Highway per year.

27. A June 1997 erosion study prepared for the City by Drexel Barrell & Co. indicates the magnitude of the erosion problem associated with the Highway:

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.

28. Gravel discharges from the Highway affect several nearby navigable waters (collectively, the "affected waters"). The affected waters include, but are not limited to, Severy Creek, Ski Creek, the wetlands associated with these waterbodies, and South Catamount Reservoir. These waterbodies flow into other affected waters, such as Fountain Creek. Gravel and other pollutants from the reconstruction and expansion of the Summit House may also be discharged to the affected waters.

29. Colorado water quality standards dictate that surface waters shall be free of human-caused discharges that harm plant or aquatic life or that interfere with the designated beneficial uses of those waters. 5 C.C.R. 1002-3.1.11. These standards also dictate that wetlands shall be free of human-caused discharges that harm water quality dependent functions, plants, or aquatic life. 5 C.C.R. 1002-3.1.11.

30. The affected waters are designated to support "Class I -- Cold Water Aquatic Life." This means that they must support a wide variety of cold water biota, including sensitive species. 5 C.C.R. 1002-3.1.13(1)(c)(i).

31. On December 18, 1990, the Forest Service approved the City's Special Use Permit without requiring the City to obtain section 401 certification or to provide the Forest Service with proof of such certification.

32. On November 14, 1997, the Forest Service approved the 1997 Amendment without requiring the City to obtain section 401 certification or to provide the Forest Service with proof of such certification.

33. The Forest Service has consistently approved the City’s annual operating plans and budgets for the Corridor, including most recently the 1997 operating plan and budget, without requiring the City to obtain section 401 certification or to provide the Forest Service with proof of such certification.

34. The City has never sought section 401 certification from the State for the activities authorized by the 1990 Special Use Permit, the 1997 Amendment, or the annual operating plans and budgets.

35. The City of Colorado Springs possesses no valid permit authorizing sand or gravel discharges into the affected waters under sections 402(a) or 402(p) of the CWA, or under section 404 of the CWA.

FIRST CLAIM FOR RELIEF

The Forest Service’s violations of section 401 of the CWA, 33 U.S.C. § 1341

36. The allegations contained in Paragraphs 1-35 are incorporated by reference.

37. The Forest Service’s approvals of the City’s Special Use Permit, the 1997 Amendment, and the annual operating plans and budgets, constitute issuances of licenses and permits that may result in discharges into navigable waters, within the meaning of section 401. The Forest Service may not grant these licenses and permits without requiring state certification pursuant to section 401. The Forest Service has issued these licenses and permits in the absence of such certification in violation of CWA section 401, 33 U.S.C. § 1341.

38. The allegations contained in Paragraphs 1-37 are incorporated by reference.

39. The Forest Service’s decisions to approve the City’s Special Use Permit, the 1997 Amendment, and the annual operating plans and budgets without requiring section 401 certification constitute agency actions that are arbitrary, capricious, and not in accordance with law within the meaning of section 706(2)(A) of the APA, 5 U.S.C. § 706(2)(A).

The City’s violations of section 401 of the CWA, 33 U.S.C. § 1341

40. The allegations contained in Paragraphs 1-39 are incorporated by reference.

41. The City’s permits to operate and maintain the Highway and to reconstruct and expand the Summit House constitute federal licenses or permits to conduct activities that may result in discharges into navigable waters, within the meaning of section 401. The City therefore had a mandatory duty under section 401 of the CWA, when it applied for the permits, to obtain state certification that these activities are consistent with the attainment of applicable water quality standards and to provide that certification to the Forest Service. By failing to obtain and provide the necessary certification when seeking Forest Service approval of the Special Use Permit, 1997 Amendment, and operating plans and budgets, the City violated section 401 of the CWA. 33 U.S.C. § 1341.

42. The allegations contained in Paragraphs 1-41 are incorporated by reference.

43. The City’s operation and maintenance of Pikes Peak Highway results in the discharge of sand and gravel from point sources into down-slope navigable waters. The City accordingly was required to obtain a permit under CWA section 402 before making these discharges. By failing to obtain the necessary permits under section 402 before it commenced these discharges, the City violated and continues to violate sections 301 and 402 of the CWA. 33 U.S.C. § § 1311, 1342.

44. In the alternative, to the extent that section 404 of the CWA is relevant to this action, the City lacked the necessary section 404 authorization when it commenced its sand and gravel discharges. Accordingly, to the extent that section 404 applies, the City violated CWA sections 301 and 404. 33 U.S.C. §§ 1311, and 1341.

PRAYER FOR RELIEF

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

(1) A declaration that the Forest Service violated section 401 of the CWA, 33 U.S.C. § 1341, and APA section 706(2)(A), 5 U.S.C. § 706(2)(A), by approving the City of Colorado Springs’ Special Use Permit, the 1997 Amendment, and the annual operating plans and budgets without requiring the necessary state certifications;

(2) An award of injunctive relief directing the Forest Service to require that it receive proof of the necessary state certification within thirty days of the entry of the Court’s order, and if the State of Colorado refuses to grant such certification (or has failed to issue such certification within that 30 day period), enjoining further activity under the Special Use Permit, the 1997 Amendment, and the annual operating plans and budgets;

(3) A declaration that the City violated section 401 of the CWA by failing to obtain State certification to support the City’s applications for the Special Use Permit, the 1997 Amendment, and for approval of the annual operating plans and budgets, and by failing to provide the Forest Service with proof of such certifications;

(4) An award of injunctive relief directing the City to provide the Forest Service with proof of the necessary state certification within thirty days of the entry of the Court’s order, and if the State of Colorado refuses to grant certification (or has failed to issue such certification within those 30 days), enjoining further activity under the Special Use Permit, the 1997 Amendment, and the annual operating plans and budgets;

(5) A declaration that the City’s sand and gravel discharges into the affected waters violate sections 301 and 402 of the CWA, or in the alternative violate sections 301 and 404 of the CWA;

(6) An award of injunctive relief preventing any Highway maintenance operations or Summit House reconstruction activities that result in any gravel or other discharges into area streams and wetlands in violation of the CWA;

(7) An award of civil penalties for unpermitted discharges pursuant to the Clean Water Act;

(8) A decision to retain jurisdiction of this matter to ensure compliance with this Court’s decree;

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

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

Dated this ____ day of August, 1998. Respectfully submitted,

___________________________________

Michael S. Freeman

Robert B. Wiygul

Earthjustice Legal Defense Fund, Inc.

1631 Glenarm Place, Suite 300

Denver, CO 80202

Telephone: (303) 623-9466

Attorneys for Plaintiff Sierra Club

Plaintiff's Address:

Sierra Club

P.O. Box 787

Woodland Park, CO 80866