Exempt Wells: A bum deal for Montana’s rivers
For many years in Montana, small individual wells have been exempt from any regulatory oversight. The law originally intended permit-exempt wells to be used on an individual basis, trusting that a single well would not have many negative impacts on nearby water users. In the late 1990s and 2000s, however, developers found the loophole and started using the permit-exempt well rule for each ‘individual’ home they build. That means they drill dozens, in some cases hundreds, of exempt wells in subdivisions across the state rather than applying for a new water use permit through the DNRC.
When a new subdivision is built, part of the old process (pre-1993) was to obtain a study showing the water-use impact a subdivision would have on neighboring waterways, water right holders, and the groundwater. If a proposed subdivision was shown to have a negative impact, water use permits were denied and the subdivision could not be constructed as originally planned. After 1993, using the permit-exempt well loophole meant developers could build countless homes without a water-use impact study.
On average, 3 of every 4 new homes built in Montana during the last decade use individual wells and septics. Those are like “straws” punched into the ground that then pull out water without the oversight to make sure the water is physically and legally available. This unrestricted use of water can negatively impact permitted water right holders and harm groundwater levels and streamflows. In addition, the septics that usually go along with these exempt wells increase the nutrient pollution in our waterways.
DNRC recognized several years ago that their 1993 rule is being gamed, and noted that—as more basins are closed to new water users—there will be more people attempting to use this provision in new and creative ways that are not consistent with the purpose of the MT Water Use law.
Upshot: this exempt wells rule has been litigated and declared invalid. HB339 essentially overturns the MT Supreme Court decision. It puts in language that codifies the 1993 definition of “combined appropriation” that the Supreme Court rejected. It cooks the poison right into the bill. Yes, HB339 does set some limits, but they’re based on density (e.g., 660 feet in closed basins (further apart) and 330 feet in all others, except in stream protections zones, where wells must also be 660 feet apart), rather than any studies of the hydrology of a basin. So it’s not grounded in science. The result: HB339 will continue to allow high density residential use for exempt wells to the detriment of water right holders and streamflows. HB 339 is a one-size-fits all solution for a very large and geologically diverse state. Governor Bullock vetoed HB 339 in the 2017 Legislative Session.
- Montana Supreme Court’s Sept. 13, 2106 decision
- Judge Sherlock’s Oct. 17, 2014 court order on exempt wells
- Final settlement with DNRC, Montana First Judicial District Court
- Original petition from Montana irrigators to the Montana Dept. of Natural Resources. This petition, filed by five water right holders around Montana, requested that the DNRC change a rule that allows multiple small individual wells to be drilled without first obtaining a permit and without any review of their impact on other water right holders or nearby streams and groundwater.
- DNRC Response to Comments on Exempt Well Petition
- DNRC Declaratory Ruling on Exempt Wells
- CFC Press Release describing the decision made by the Coalition and other ranchers to ask the Montana District Court to review the DNRC decision.
- Report on the effects of exempt wells on existing water rights.
- Read our letters to the Governor opposing these bills co-signed by conservation partners:
Additional court-related documents:
- DNRC Answer
- DNRC Response
- Exempt Well Chronical Opinion Heading
- Ground Water Calls
- Loophole Limbo
- Motion to Dissolve, Stipulation Reopen Case
- MWWDA’s Response Brief
- Opening Brief
- Reply in Support, Petition for Judicial Review
- Response to Petition for Judicial Review
- Missoulian 9/14/16: Exempt well loophole fails before state Supreme Court
- Billings Gazette 9/14/16: Montana Supreme Court rules against water well ‘loophole’
- Great Falls Tribune 10/20/14: Judge strikes down Montana exempt-well rule
- The Bozeman Magpie 3/3/14: Politics poisoning the well for Montana groundwater policy
- Helena Independent Record 11/1810: DNRC Reaches Water-Rights Agreement with Ranchers
- (Ravalli Republic) (Missoulian) 11/16/10: DNRC, Ranchers Agree on New Water Appropriation Rule
- NY Times 8/20/10: Montana Homebuilders Win Battle in Long-Running Well War