DNRC Letter Explaining Waterkeeper’s Horse Creek Hills Water Rights Victory Exposes Department’s Continued Approval of Exempt Wells Contrary to the Law
Recent letters issued by the Montana Department of Natural Resources and Conservation (DNRC) to subdivision landowners across the state acknowledge that some developments approved since 2014 lack a legal or physical water supply—an admission that highlights years of systemic failure in how Montana approves development in water-limited basins.
The DNRC letters continue to advocate the use of the exception, encouraging affected lot owners to work together to maximize the use of exempt from review wells: “This notice is being sent to … encourage cooperation to maximize the number of lots in the subdivision that will be eligible for a water right under the permit exception.” The letter then explains that if neighbors fail to work together some property owners may have to apply for a water right permit and would be responsible to mitigate consumptive uses in Montana’s closed basins.
“These letters highlight what many of us have warned about for years – the system is broken, and exempt from review water wells shouldn’t exist. Despite previous court rulings and potential water rights violations, DNRC has been allowing subdivisions to move forward without an assurance of legal or physical water for years,” said John Tubbs, former Director of DNRC and Chair of Upper Missouri Waterkeeper Board of Directors. “Montana law is clear, as repeatedly directed by the courts: no development should proceed without a proven, legal water supply. The court’s most recent decision has rightly asserted that defending senior water rights gave Montana the opportunity to fix the process by valuing water, respecting our neighbors’ property rights, and properly mitigating the impacts of new growth. DNRC needs to encourage the use of the water right permit process.
The letters highlight Waterkeeper’s recent court victory in Upper Missouri Waterkeeper, et al. v. DNRC and Broadwater County, when the district court found that the agency and county failed to ensure legal and physical water supply before approving a major subdivision. This ruling exposed the county governments’ responsibility to do their research and mitigate any concerns before approving new development, and closed the exempt well loophole that DNRC and developers have been inappropriately using for too long.
The DNRC’s acknowledgment comes amid conversations on the topic from lawmakers. At the October 20 meeting of the Water Policy Interim Committee (WPIC) and in a joint session with the Financial Modernization and Risk Analysis (MARA) study committee the following day, the DNRC confirmed that it will meet with affected parties through late October and November to discuss next steps. Former Director Tubbs urged legislators to reform the state’s broken change-of-use and mitigation process, reforms that could allow irrigators to accommodate responsible growth while protecting their operations.
“The path forward must balance development with the hard limits of Montana’s water resources,” Tubbs said following the meeting. “That means following the law, fixing the mitigation process, and ensuring that every new well or water right is backed by real, wet water with proven hydrology, not assumptions or political approval that runs counter to the law, property rights, and the viability of our finite water resources.”