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Exempt water ain’t free water

Update 12/03/2009: I just found a link to a pdf of the 40-page petition filed by the Montana ranchers. It is extremely fascinating reading. Gives a good quick and dirty outline of the history of exempt wells as well as outlining their case for a declaratory ruling changing the definition of  “combined appropriation“.

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Exempt groundwater wells are back in the news this week. Five Montana ranchers filed a petition Tuesday with the Department of Natural Resources and Conservation claiming that the overuse of exempt wells has become a direct threat to their livelihood. The practice of exempting small groundwater withdrawals from the normal permitting process has turned into a large problem across the West as ranch and farm communities are seeing major subdivisions gobble up adjacent land. The Bugle delved into this growing controversy back in October highlighting a story about the Yakima basin in Washington.

In Montana, nearly 30,000 exempt wells were drilled between 2000 and 2008, mostly in our fastest growing counties. A well is exempt from the normal “first in time, first in right” doctrine, outlined in the water permitting process in Montana, if it produces no more than 35 gallons per minute (GPM) or 10 acre-feet per year. The original intent for the use of exempt wells was for household use in sparse, rural populations that would have little effect on aquifers or surface waters. In recent years, we have seen five Montana basins become “closed“, where the amount of allocated water now matches the amount available. Additionally, exempt wells are not monitored, tested or mapped so we really have very little data on their effect. With thousands of such wells drilled each year at urban densities and with their associated septic systems, we do know that there is a real effect on our water.

During the last legislative session, House Bill 52 directed the Water Policy Interim Committee and the Montana Bureau of Mines to establish a groundwater investigation program “for the purpose of collecting and compiling ground water and aquifer data“. The program would “gather data, compile existing information, conduct field studies, and prepare a detailed hydrogeologic assessment report for each subbasin” in order to develop models and a monitoring plan. At their meeting on Jan. 13, 2010, the Water Policy Committee will take up the issue of exempt wells, collecting information and listening to “interested parties”.

DNRC is reviewing the petition by the five ranchers, but a similar petition by the Gallatin County Commission in 2006 was rejected by DNRC, saying that “water rules proposed by the county would have ‘completely halted development’ across large areas of the state where all water rights already have been allocated.” Hopefully, the results from HB52 will give us some real data on which to base new rules for exempt wells. This is an issue that continues to play out across the West and answers are slow in coming. It shouldn’t be a question of development or agriculture, but rather, how the two can live together.

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3 Responses

  1. […] The Button Valley Bugle, word comes that the Clark Fork Coalition and four other senior water rights holders, all from […]

  2. La la la – happy happy joy joy. This is definitely some good news.

    Have you heard of the recent or somewhat recent ruling in Arizona? If I am recalling correctly, their Supreme Court ruled against the exemption for 2.5 gpm wells. So this challenge here wasn’t long in coming.

    i was on a path recently to search out the history on the 35 gpm exemption. It used to be larger. 100 gpm? 125? It was lowered because irrigators were using the exemption for center pivots. It might even had been driven by subdivisions who couldn’t get enough water. It’s just beyond the online archive reach of the legislative website.

    Exempt wells are a serious property rights issue.

    I almost wonder if something won’t be done to keep it from hitting the court system. It’d have to get up to the Supreme Court to have an effect statewide.

    • I know I heard something about the AZ case, but I don’t know where. The MT exemption was reduced from 100 gpm to 35 gpm by the legislature in 1991, but I don’t know the exact history. I found a link to the petition from the Western Environmental Law Center and updated the article. Most interesting reading. I think I’ll add a new article this afternoon with more info from the petition.

      It’s going to be interesting to watch this play out. A New Mexico circuit court struck down their exempt wells statute last year and that is probably headed for state supreme court. Washington state has halted ALL groundwater development in the Yakima basin including exempt wells so, maybe the time has come for Montana to get some common sense back in our water laws. We’re still in the early rounds.

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