This brief was filed in support of the Court’s October 2014 ruling by: Bitterrooters for Planning, Bitterroot River Protective Association, Future West, Montana Audubon, Montana Environmental Information Center, Montana Smart Growth Coalition, Northern Plains Resource Council, and Stillwater Protective Association.
This brief discusses the history of the Water Use Act, found in article IX, section 3 (4) of the Montana Constitution, and the Department of Natural Resource and Conservation’s rulemaking that implemented the Water Use Act.
The Water Use Act provides for the administration, control and regulation of Montana’s water resources by, among other things, establishing a permit system for new appropriation of water. Specifically, the Act requires a permit for new appropriations of water producing less than 35 gallons per minute and 10 acre feet per year. An applicant for a new appropriation of water must prove the water is legally and physically available; that the use is beneficial; and that the new appropriation will not adversely affect senior water rights.
In 1993, the DNRC changed the rule for the permitting of new wells and established a new rule, which allowed large consumptive water users to drill multiple wells without having to apply for a permit. There was no public hearing on this rule change, nor did DNRC explain why the rule change was necessary. Normally, a court would defer to the agency, but in this case, DNRC provided no findings of fact to justify the rule change.
This new rule allows for large consumptive water users to bypass the Water Use Act’s permitting requirement and to do so without addressing the adverse impacts to senior water rights; and places the burden of protecting senior water rights on the water rights holder, who receives no notice of the new appropriation, instead of on the applicant seeking a new water right.
The only opposition has come from the three groups that stand to benefit financially from keeping the 1993 rule in place: the Montana Well Drillers, the Montana Association of Realtors and the Montana Building Industry Association.
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This brief was filed by the Montana League of Cities and Towns in support of the Court’s ruling.
In this brief, the MLCT makes the argument that Montana municipalities supply drinking water to Montana’s citizens, and they hold water rights to that resource.
Encouraging residential development without requiring a water permit jeopardizes Montana cities’ and towns’ continued ability to exercise their historic water rights in the order of priority to which they are constitutionally entitled. Montana municipalities are the primary providers of drinking water for Montana citizens. Of the ten largest communities in Montana, only Missoula does not supply domestic uses from a city-owned water utility.
The vast majority of Montana businesses large and small receive water for business and industrial uses from municipal water systems. Montana municipalities have senior rights for their municipal water systems in both ground and surface water. A proliferation of unpermitted exempt wells can adversely affect both kinds of municipal rights, either by drawing down aquifers in which municipal ground water rights exist or by reducing groundwater migration to surface waters in which municipalities hold rights.
The MLCT also makes the observation that exempt wells and individual septic systems go together. Since exempt wells require no permit, the proliferation of individual septic systems come on the heels of exempt wells, which places a heavy burden on municipalities for increasingly expensive water treatment systems.
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In October 2014, a Montana District Court judge invalidated an administrative rule regarding a legal loophole known as the “exempt well rule.” This rule has long been in need of invalidation. You can read the court order below, but to summarize, the exempt well rule has been exploited for many years by land developers, and has conflicted with the Montana Water Use Law that requires permits for appropriation of water. The administrative exempt well rule allows land developers to drill as many individual wells as their developments require without having to go through the permit process, making these numerous wells exempt from a necessary permitting process.
The Legislature makes the laws and the state agencies make the administrative rules to implement those laws. In the case of exempt wells, the state Department of Natural Resources and Conservation adopted a rule exempting wells from the permitting process and from public notice. The court ruled that the DNRC rule conflicted with the state law.
Consequently, thousands of residential wells have been drilled in Montana with no oversight, no protection for senior water rights holders and no way to determine how those wells are affecting surface water flows and groundwater availability.
“Exempt wells are being used for large, relatively dense subdivision development in closed basins,” according to the court order posted here. “Exempt wells are not reviewed by DNRC and are not subject to public notice,” the court stated.
As of 2008, there were more than 100,000 exempt wells in Montana. By 2020, the DNRC estimates that 32,000 to 78,000 additional exempt wells would be drilled under the exempt well rule. Of concern are the cumulative impacts of all these non-permitted wells to groundwater levels and surface water flows.
When the court invalidated the exempt well rule, it told the DNRC to go back to its original rule that required permits for new wells. But the court also left the door open for further rule making to clarify a confusing conflict between law and administrative rule.
It’s telling that, although the DNRC lost the legal issue before the court, it did not appeal the ruling. Instead, several interveners, including the Montana Well Drillers Association, Montana Association of Realtors and the Montana Building Association, did file an appeal to the Montana Supreme Court.
This appeal grabbed the attention of a number of non-profit advocacy organizations around the state, including Bitterrooters for Planning, Bitterroot River Protective Association, Stillwater Protective Association, Montana Trout Unlimited, Citizens for a Better Flathead, the Montana League of Cities and Towns, Montana Audubon, the Montana Smart Growth Coalition, and the original petitioner in the case, the Clark Fork Coalition. All working towards the same goal of supporting the District Court’s order invalidating the exempt well rule, these groups filed amicus curiae, or friend of the court, briefs petitioning the Montana Supreme Court to uphold the lower court decision.
The amicus briefs were filed in January 2016. A hearing date before the Supreme Court has not been set.
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