Victory: Waterkeeper Wins Landmark Case Against Development for Water Protection

Judge Declares Horse Creek Hills Subdivision Approval Dead in the Water

BROADWATER COUNTY, MT – On Wednesday, February 14th, the Montana First Judicial District Court in Broadwater County ruled in favor of Upper Missouri Waterkeeper in the complaint against Broadwater County and the Department of Natural Resources and Conservation (DNRC) for their unlawful 2022 approval of the 4-phase, major trophy ranch subdivision, Horse Creek Hills. 

“As Judge McMahon found, both Broadwater County’s deeply flawed subdivision approval process and the DNRC’s dogmatic rubber-stamping of multiple exempt wells are unlawful, representing major failures by local and state government ato follow the law and make science-based decisions,” said Vicki Sullivan, Broadwater County resident, whose extensive comments opposing Horse Creek Hills were repeatedly cited by Judge McMahon. “The court order is not only a victory for rural residents on the eastern shore of Canyon Ferry, but it is also a victory for citizens across the state confronted by rampant sprawl development proposals exploiting our water resources. Montana citizens now have a clear roadmap for holding their local decision-makers and state agencies accountable,  ensure they consider public and community comments, proactively identify negative impacts related to new sprawl development, and deny new subdivisions that do not have adequate water supplies.”

In this order, Judge McMahon ruled in favor of the Plaintiffs and reversed the approval of the Horse Creek Hills subdivision, which threatened local water quality and quantity, wildlife habitat, the agricultural community, senior water rights’ holders, and public safety. 

Speaking after the Order was released, Plaintiff’s attorney Guy Alsentzer said “This victory is not only a vindication of the rights of citizens to lawful, science-based decision-making and accountable government in the face of unrelenting development pressure, but importantly, this landmark judgment also recognizes the incredible determination and grit of individual citizens who – for nearly two years – tirelessly showed up to hold their elected leaders and bureaucracy accountable to protect their water, their treasured farms and ranches, their wildlife, and their western way of life.”

Three critical take-aways from the order include:

  1. County government across Montana cannot shirk its independent duty to assess both physical availability and legal availability of water for new subdivision proposals.  
  2. County consideration of preliminary plat applications for new subdivisions must include detailed analysis of both on-site and off-site impacts to agriculture, water quantity and quality, wildlife, wildlife habitat, and public health and safety. 
  3. DNRC cannot lawfully allow new subdivisions to use more than one exempt well of 10 ac/ft/yr. This maximum limit includes all subdivision phases and lots larger than 20 acres.

Among the fatal flaws with the subdivision approval process, the Judge found that the County’s approval “include[d] only the barest information about water resources omits necessary information about waters’ health and interaction fails to consider the impact of exempt wells; and arbitrarily limits its analysis to only the property itself and not neighboring landowners and waters.”  The Judge specifically found the County’s failure to “analyze the factual existence and legal appropriability of water for a proposed subdivision” contrary to the long-standing Montana Subdivision and Platting Act, which clearly intends county government to approve development only where adequate water exists.

In an equally explicit manner, Judge McMahon took DNRC to task, finding the agency’s “determination that each of four project phases was entitled to a separate combined appropriation exempt well was in error, ignores extensive recent legal authority, and renders meaningless the statutory limits on the [use of] exempt wells.” As the Montana Supreme Court determined more than thirty years prior, “uncontrolled development of a valuable natural resource contradicts the spirit and purpose underlying the Water Use Act.” “DNRC gives the distinct impression of a misbehaving child who knows how to say the right words to end the chastisement and yet immediately returns to the proscribed behavior once out of view.” 

Recognizing that “the economic impetus to develop land is overwhelming and relentless [,]” Judge McMahon reminded the State of Montana’s water rights agency that “any check on uncontrolled development of Montana’s limited water resources [.] will have to come from DNRC.” 

The Judge further summarized the staggering volume of water being consumed by exempt wells in Montana, sharing that “Montana has at least 128,000 and perhaps as many as 191,000 exempt wells by 2020, before the influx of new residents during the early COVID years.” “At this rate, in less than 50 years exempt wells will be entitled to draw trillions gallons of water each and every year. While each exempt well might appropriate only a de minimis quantity of water [,] they are starting to add up.