Montana regulators acknowledged this week that homebuilders are using permit-exempt wells to bypass laws intended to protect water supplies in arid areas, but they nonetheless rejected a bid to close what critics call a loophole to undermine ranchers' water rights.
While the state environmental agency pledged to revisit the law next year, petitioners whose challenge was rejected expressed doubt the process would quickly yield meaningful changes in the well-permitting law.
"It's a huge problem, and people need to wise up," said petitioner Polly Rex, whose property neighbors a 67-home subdivision. The houses are set to be outfitted with individual, permit-exempt wells that she worries will dry up her springs and lower the Stillwater River, where Rex holds water rights that date to the late 1800s.
"Several neighbors have had their springs dry up," Rex said. "Once these springs go down, then I'm done. They're not going to come back."
It is the latest skirmish in a ongoing war over wells across the West. Utah requires permits for such wells, as does Colorado, under certain circumstances. But exemptions similar to Montana's sit on the books in Oregon, Oklahoma, South Dakota, Kansas and Idaho. New Mexico ranchers successfully challenged well exemptions in district court, although the decision is under appeal. Homebuilders are also fighting a recent administrative decision in Washington state to eliminate such an exemption.
Western laws establish rights for drawing groundwater on a "first in time, first in right" basis, meaning landowners who have the oldest, longest-running claims -- some date as far back as 1860 -- take priority over those who arrived later to stick straws in the ground.
Exemptions typically apply to property owners who want to drill a small, personal well. Montana, for example, allows wells that pump up to 35 gallons per minute -- enough to supply about eight showers simultaneously -- to be dug without a permit. Historically, the impact of such wells was negligible. But the housing boom changed that, as developers began applying the exemptions to supply water to entire subdivisions without having to obtain water rights in arid basins whose groundwater is often over-tapped.
The result: lower flows in waterways and parched ranches -- and angry environmentalists and ranchers who say "senior" water rights have become meaningless.
"It's being replicated in every state, this tension between new development and protection of senior water rights," said Laura Ziemer, director of Trout Unlimited's Montana Water Project.
There are more than 1 million exempt wells throughout the West, says the Western States Water Council, an organization whose representatives are appointed by the governors of 18 states. The council acknowledged in a recent report that the wells "pose significant regulatory and administrative challenges that have the potential to impact the sustainability of water flows, surface flows and water quality."
But the report also cautions against a one-size-fits-all solution. "In some states," it says, "the benefits that exempt wells provide, especially in allowing desired growth in rural areas, may outweigh their impacts."
The Montana well fight that ended this week began last November, when Rex and Absarokee ranchers petitioned the Department of Natural Resources and Conservation to rewrite a 1993 law that required permits for wells only in cases of "combined appropriation" -- when multiple wells are tethered, usually to irrigate large tracts.
"It basically created a huge loophole for developers to put 100-lot subdivisions in and, because none of the wells are connected, no permit is required," said Matthew Bishop of the Western Environmental Law Center, which represented Rex and her fellow ranchers.
But Abigail St. Lawrence, who represented the Montana Association of Realtors in the petition fight, cautioned against "widespread hysteria about water issues." Water shortages are local, she said, and ranchers with century-old water rights may take exempt well users to court if they believe those rights are being undermined.
In rejecting the ranchers' petition Tuesday, the state agency recognized that the law is being gamed, noting that as more basins are closed to new water users there will be "more people attempting to use this provision in new and creative ways that are not consistent with the purpose of the statute."
The agency said it would start a new rulemaking process aimed at limiting combined appropriations of new wells to no more than 12 building lots.
"This important ruling sets in motion the process for repealing and replacing the existing definition of a combined appropriation," said Tom Schultz, administrator of the department's Water Resources Division, in a news release. "It protects senior water right holders while also recognizing that we face increasing demands for water in Montana."
But Bishop expressed doubt that the proposal would protect senior water users' interests by letting homebuilders develop in 12-lot phases.
"They can come in one year and put in 12, come in another year and put in 12," Bishop said. "They're going to find ways around it."