Judge blasts DEQ for lack of public notice in permitting West Yellowstone wastewater system

(Photo illustration by Getty Images.)

Gallatin County District Court Judge Andrew Breuner had two unenviable choices: Hurt the water or hurt the economy.

He chose neither in a decision regarding permitting a private wastewater system that sits near one of the greatest tourist destinations on earth, Yellowstone National Park.

At the heart of the court case decided last week and released Monday was whether a new wastewater treatment system for two properties owned by Kampgrounds of America near West Yellowstone, Montana, were properly permitted by the Montana Department of Environmental Quality.

One thing that was not contested in the court case was whether an older antiquated wastewater system needed replacement.

However, neighbors and the Upper Missouri Waterkeeper objected to the new wastewater system that would process thousands of gallons of water a day, using aeration and spraying hay fields to help treat the wastewater. Neighboring property owners, including a guest ranch, worried that the spray of untreated wastewater would cripple its reputation as a tourist destination. Upper Missouri Waterkeeper, a conservation organization concerned with water quality, said it never had a chance to review the system.

Meanwhile, the Kampgrounds of America, which recently bought the commercial campgrounds, said it has spent millions for the property, improvements and planning the wastewater treatment system, and would have never done so if the DEQ had not approved the wastewater processing plan properly, it told the court.

Ultimately, it was Judge Breuner’s dissatisfaction with DEQ for not following state law or the Constitution that is at the heart of the matter, but led to him issuing a narrowly written temporary injunction against the project, at least until it meets the minimum requirements of Montana law.

In a battle that would seem to pit Diamond P Ranch properties against the two KOA campgrounds, it is the state’s own Department of Environmental Quality that received the heaviest criticism from the judge.

“The court is not persuaded by DEQ’s argument that the agency possesses wide discretion under the law to determine when and whether to provide for public participation opportunities or — as is the case here — not to provide any at all,” Breuner wrote.

Rex Portmann, the principal of Diamond P, originally filed the lawsuit challenging the DEQ’s decision, saying that he couldn’t have objected to the wastewater system because there was no public hearing and no public input on the project, a violation of state law and the Montana Constitution’s right to public participation.

Breuner characterized the DEQ’s actions as a “complete absence of any notice.”

In the court order by Breuner, the DEQ seemed to agree with Portmann that it didn’t give any notice of the project. Instead, attorneys argued that since Portmann had inquired about the project, even saying he had wanted to object to it, that he had adequate notice and should have filed a lawsuit within a 60-day window.

However, Breuner rejected that argument and said the DEQ had made no public notice, and the project failed to live up to the required public disclosure of the Montana Constitution, even if the new wastewater treatment system may be demonstrably better than the one it’s replacing. Breuner also said that it was impossible for Portmann to object if he didn’t know where to find the information or if the information had never been made available.

“Even if public notice and participation had been fully afforded, there is no guarantee that rejection of the regional system would have been the conclusion,” Breuner said. “There are indications that the regional system is a marked and environmentally friendly solution to the antiquated system it is replacing.”

While Breuner said that halting the entire project may be appropriate because the DEQ failed to notify the public, doing so may jeopardize hundreds, if not thousands, of people who have made vacation and travel plans, thereby impacting the local economy.

Instead, he ordered the DEQ to restart the process, including following the Montana Environmental Policy Act, which the DEQ had also failed to meet, as well as restart the public participation process, even though DEQ employees told Breuner that they weren’t required to do so — a point which he corrected.

“MEPA required some measure of public notice and participation in its review of the regional system and there was, by DEQ’s own admission, none,” Breuner wrote.

For the remainder of the summer tourist season, the KOA will be allowed to operate the system with some limitations, which the judge said would hopefully minimize the impacts to Diamond P.

The judge also said that Portmann discovered the project because he could see the construction and activity taking place, which tipped him off to the KOA’s actions. But Breuner said that even if the court accepted that Portmann was notified of the change, the rest of the public, which has a right to clean water and a clean environment according to the Montana Constitution, would have no way of knowing about the new wastewater treatment facility.

“The court initially observes that an agency’s admitted failure to provide lawful public notice and participation … are germane to the substance of the underlying assessment and decision making because a process that lacks necessary public input is arguably offensive to due process guarantees against arbitrary and capricious government action,” Breuner said.

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