In 1973, the Montana Legislature passed the Water Use Act, which created a process for permitting new water rights. To reduce permitting burdens on small, individual users, it exempted groundwater use for “domestic, agricultural, or livestock purposes.” This meant applicants did not have to prove that the water was physically and legally available. Nor were they required to prove that the new use would not adversely affect those with senior water rights. Fast-forward to the late 1990s and developers started exploiting that exemption to drill permit-exempt wells for each “individual” home they built. Where in the past a new subdivision might be denied a water use permit because it would have negative impacts on local water supplies, with the loophole developers have built hundreds of thousands of homes without a water impact study or any notice to existing water users. Exempt wells often deplete local water tables, reducing flow in nearby creeks, and reducing water available for senior water rights holders. Exempt wells also drive sprawl, promote inefficient land use decisions and impact water quality due to septic pollution.

CFC has worked for more than a decade to close the so-called “exempt well loophole” to stop unfettered depletion of groundwater resources. We won a Montana Supreme Court decision in 2016 that ordered the state to close this loophole to protect water supplies and water rights. Since then we’ve defeated numerous attempts to re-open the loophole or codify it into Montana law. However, problems remain with DNRC’s continued allowance of numerous exempt wells for some subdivision developments without any analysis of cumulative impacts.

CFC and our partners—including conservation groups, farmers, ranchers, municipalities and other water users—continue to fight proposed legislation that would enlarge the exempt well loophole yet again. We remain committed to protecting our water resources and water users from groundwater depletion caused by exempt wells.