Water too precious to reopen exempt well loophole
This September, on behalf of four ranchers and the Clark Fork Coalition, my colleague Matthew Bishop and I successfully challenged a rule that allowed large developments to bypass water permitting. The state Supreme Court agreed that the rule was out of step with the Water Use Act, which protects ground and surface water for all Montanans, including users with existing rights under our longstanding “first-in-time, first-in-right” system.
The rule created a loophole that allowed large projects – including subdivisions – to drill unlimited small wells into the same aquifer without considering neighboring demands on water. As long as the wells were not piped together, they were considered “exempt” and their cumulative impact was not evaluated.
This meant that a 200-unit subdivision, with a freestanding well on each lot, could secure water rights to more than 650 million gallons of water each year without a water permit. Once the wells were drilled and the water was put to use, a new water right was established. It was that easy.
In Ravalli County, for example, between 2005 and 2015, 145 subdivisions were approved, totaling 2,327 lots. Only three subdivisions used community water systems; most developers chose the cheap and easy route of using multiple, unconnected wells. The rule even allowed large water draws in basins that were “closed” by law—where there is not enough water to go around in the first place.
This situation frustrated existing residents and created conflict. Thanks to the Supreme Court's decision, those conflicts can be proactively avoided. The exempt well loophole is now closed.
Like other water users, developers must now look before they leap by complying with the permit system. If there’s not enough water for their planned development, they may consider purchasing water rights from willing sellers. Or, they might tap into municipal systems. In closed basins, developers will have to carefully consider how to design new subdivisions to mitigate surface water impacts. This will ensure senior appropriators and instream flows are protected where water is scarce. It also creates incentives to build closer to existing water systems, reducing sprawl.
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Closing the loophole is good for ranchers and farmers because it protects their legal right to water. It’s good for cities, which under the loophole were burdened by providing services—without taxes—to county residents in exempt well developments. It is good for Montana sportsmen and tourism because it will protect our prized fisheries. And it is good for homeowners in subdivisions because when subdivisions go through the water right permitting process, their water rights are more legally secure, safer against senior users’ “calls” on their water, and better protected from contamination.
The Montana Supreme Court’s ruling is also a wise decision in an era of climate change. Climate change necessitates careful water stewardship, especially in the arid West. In western mountain areas, climate change is expected to lead to less snowpack and lower summer stream flows, leading to more competition for less water. Against this backdrop, Montana simply can’t afford unlimited, unregulated use of our precious water resources.
I hope the thoughtful treatment Montana courts have given to this issue will inform the dialogue that continues in the legislature on exempt wells. I am optimistic that the Supreme Court’s decision has reset the baseline for future proposed bills on this issue, and that stakeholders will take the court’s nearly unanimous ruling to heart. Montanans should regard any attempt to legislatively reopen the exempt well loophole as a threat to our state's water security and a handout to big developers at the expense of the public interest.
Laura King is an attorney with the Western Environmental Law Center’s Northern Rockies office in Helena.