In early July, Upper Missouri Waterkeeper and its members secured a partial preliminary injunction against wastewater disposal from the Deep Well Ranch Regional Wastewater System, a new non-publicly noticed wastewater facility serving two KOA campgrounds used by tourists in West Yellowstone.
This order is a victory for the public interest and open government. It also signals that Waterkeeper is likely to win on the merits of the case, that the Montana Department of Environmental Quality (DEQ) violated the law when it failed to provide any public process before approving the Deep Well Ranch Regional Wastewater System, and as a result of the preliminary injunction, wastewater treatment and disposal from the Deep Well Ranch facility is now strictly limited during the pendency of the case.
“This is an important initial victory for the public’s – not to mention adjacent landowners’ – fundamental right to know and participate. While the preliminary injunction could have gone further, the recent legislative amendments of MEPA – which undermine public and environmental protections – puts judges in the unfortunate position of trying to undo illegal agency decisions after significant investment may have already occurred,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Under the legislative rollbacks to MEPA, economic harm to a business is valued over ecological heritage and deference is given to corporations pushing development proposals that harm our water, wildlife, and way of life.”
Key takeaways from the preliminary injunction order are that:
- Waterkeeper et al. are likely to succeed on the merits of the case;
- Waterkeeper et al. has standing to contest this case; and
- DEQ is wrong as a matter of law and doesn’t have discretion to determine, behind closed doors, when to provide public participation opportunities on water pollution control decision-making.
While the Judge granted a preliminary injunction limiting wastewater discharge from the Regional System, the order permits spraying wastewater via center pivot irrigation from July 15 to September 6 between the hours of 9:30pm and 5:30am. Because the 2023 Legislature changed the standards of injunctive relief under MEPA and eroded environmental protections, the Judge tried to balance the scope of the preliminary injunction by only allowing nighttime disposal during peak tourist season.
“As a tax-paying Montana resident and citizen, I’m still aghast that the DEQ can rubber-stamp permits behind closed doors without so much as informing the adjacent landowners nor the rest of the community,” said Rex Portmann, plaintiff and adjacent landowner in West Yellowstone. “It’s especially mind-boggling given the economy of our tourist town is largely dependent on the grizzly bears, bison, and pronghorn that inhabit both the park and my front yard. Polluting their habitat with wastewater is a slap in our communities faces.”
Brandon Lewis, Conservation Manager and spokesperson for the Diamond P Ranch, expressed his concerns about the ruling: “In the battle to protect our natural world against harmful companies like the KOA, we must celebrate even the small victories. As a small family ranch, we’re going up against a multi-billion dollar company that wants to exploit some of Yellowstone’s most precious history, wildlife habitat, and open meadow views for profit. Though the court ruling imposed some time-related restrictions, they still allowed the KOA to spray the same amount of wastewater in the same area, which will harm our ranch and pollute the Greater Yellowstone Ecosystem. Waterkeeper presented an excellent argument to the court in requesting a full preliminary injunction and we feel confident that they will continue to make progress on behalf of Montanans and the ranch in protecting the value of our water resources and natural areas.”
The partial preliminary injunction does indicate that Waterkeeper et al. is likely to win on the merits of the case, which are now ripe for decision-making. Next steps are awaiting a date for an oral argument hearing in the 18th Judicial District Court.
The Deep Well Ranch Regional Wastewater System, serves the Mountainside and Holiday West Yellowstone KOA campgrounds and their commercial build-out. It consists of wastewater treatment lagoons that will store up to 3,923,287 gallons, or nearly 6 olympic-sized swimming pools worth of wastewater, center pivot wastewater disposal, and a new sewer main connecting the system to the Mountainside KOA Sewer Outfall line that was approved by DEQ in March 2022.
DEQ has known about and considered various iterations of the Deep Well Ranch Regional Wastewater Facility since at least 2019, yet failed to uphold the public’s constitutional right to know and right to participate. DEQ never notified the public of the decision to create a commercial-scale new public wastewater treatment facility or to dispose of millions of gallons of wastewater near the boundaries of the National Forest and nearby Yellowstone National Park, nor provided opportunities for the public to comment and participate in decision-making prior to making approvals. DEQ also failed to adequately consider the impacts of the Deep Well Regional Wastewater Facility on nearby waterways and critical wildlife habitat during its stunted MEPA reviews. Learn more here.