Montanans understand that when it comes to water, we have to be smart, careful, and fair.
Managing water wisely helps avoid the risk of overusing rivers, drying up pastures, harming fish and wildlife, hurting recreation, and leaving communities high and dry.
But a legal loophole in place for the past two decades continues to expand, making it possible to drill thousands of groundwater wells for new subdivisions without so much as a single permit. It’s not only a threat to our rivers — it’s also unfair to other water users.
The loophole means that an unlimited number of unregulated and unmonitored groundwater wells that pump less than 35 gallons per minute and produce less than 10 acre feet of water a year can be used for new large consumptive water uses, like subdivisions, without a permit. Historically, these “permit exempt wells” have been used in rural areas to provide drinking water for homes, or irrigation water and stock water to farms and ranches. This makes sense. But over the past two decades, residential subdivision developments and other large industrial projects have installed exempt wells to circumvent the state’s water right permitting and mitigation requirements for using water in basins closed to new water rights — like the Gallatin Valley.
In Fall 2014 Judge Sherlock in Montana District Court of Helena ruled that the decades old exempt wells loophole was illegal, and temporarily reinstated the old 1987 legislative rule requiring proof of water rights. Since then the two state agencies entrusted with managing Montana’s water resources – the DNRC (quantity) and DEQ (quality) have been trying to figure out how to change their rules to connect water quantity considerations in their decisionmaking.
This January 2016, the DEQ proposed requiring – for the first time – new rules that would require a new subdivision to provide proof – up front – of sufficient water rights before being allowed to build a new development. Upper Missouri Waterkeeper submitted comments supporting this positive, initial step of our government towards properly protecting senior water rights and limiting unsustainable suburban sprawl.