Developer Rights v. Private Property Rights – Guess Whose Trumps Whose

by jhwygirl

NewWest recently published a piece, Understanding the Basics of Water Law in Montana, which reminded me of a few thoughts I had been mulling on that topic (for some time), and how it relates to sprawl and unregulated growth and development in Montana.

Also helping it along was a friend who contacted me a few weeks ago, asking me to look at the “adjacent property owner” notice he received from a local planning department – a notice of a proposed 45-lot subdivision. The notice brought to light 3 troubling issues – all of which several agencies all pointed to the other for blame – that subjugated his private property rights to that of the neighboring developer.

Today I mull the exemption under the Administrative Rules of Montana (ARM) for wells pumping no more than 35 gallons per minute (gpm), and how they impinge upon senior water rights holders and possibly even violate the Montana Environmental Protection Act.

Couple that with a few weeks back when I saw Tim Davis, Executive Director of the Montana Smart Growth Coalition speak. The 35 gpm well exemption was, he said, one of the bigger contributors to sprawl. To paraphrase Mr. Davis: “Developers do what they do because that is what our state and local laws tell them to do,” he said, addressing two main issues he saw as needing to be addressed the the state legislature (the other being septic tank mixing zones).

Now, Tim is an obviously smart guy. He had the room mesmerized, as if capturing everyone with an “ah-ha” moment. Many of us complain about sprawl, but the easy blame is upon the developer and the property owner that subdivides, anywhere and everywhere. But what drives that? Easy and cheap subdivision – no need for public or private community water systems and sewer. A lack of zoning doesn’t help the matter, and the 35 gpm well exemption makes it real easy. Create some lots, meet some basic conditions – more often than not in unzoned areas of the state – build some roads and file a plat. Wa-la. Instant sprawl.

As the NewWest article points out, water rights are property rights that can be leased or sold. State law guarantees water rights based on seniority of filing. Yet Montana has several closed basins – the Teton River basin, the Upper Clark Fork River basin, the Jefferson River basin, the Upper Missouri River basin and a temporary subbasin closure of the Bitterroot River subbasin. Basins were closed because the state has realized that there were significantly more water legitimate water rights claims (ajudicated and unadjudicated) than there was water available.

Let this be said clearly – there are more water rights granted than there is water available.

Now, let’s think about that for a moment: What is Montana without its rivers? Without water for its streams and wildlife? Sections of the Bitterroot often run dry – and I’ve heard many an irrigator, when asked about how much water they have a right to, explain that “we’ve got to have water to move our water,” – so is there any guarantee to the citizens of the state that there will be enough water for recreating? For our fisheries and wildlife? (Recreation, BTW, is the largest growing industry in the west.)

I suggest that they only action being taken to protect fisheries is being done by volunteers – water rights holders that voluntarily restrict water use in an attempt to maintain water in streams. The Blackfoot Challenge’s Drought & Water Conservation Committee and The Big Hole Watershed Committee are two such examples.

Even those actions are a struggle. Last summer, the remaining 4% population of the arctic grayling dwindled under record low flows of the Big Hole, and FWP struggled with users who assert their rights to water under Montana Code, for beneficial use, along with their senior rights. A fine article in NewWest, last year, details that struggle.

I contacted FWP last year upon hearing of the impending death of North America’s arctic grayling and asked the biologist “who is ensuring that people aren’t using water they shouldn’t?,” and was told that it was all voluntary. That there isn’t anyone verifying whether water rights holders are taking more water than they have claim.

Ahh, self-regulation – cheap and easy. The unfunded mandate.

Is it any wonder that senior water rights holders might have some bad feelings over being asked to voluntarily restrict water usage – usage that they rely on to make a living and to ensure that their cattle and livestock survives – when subdivisions fed by exempt 35 gpm wells crop up faster than knapweed in some areas?

Don’t fool yourself, either, to think that there is no interconnectivity of surface water and ground water. While the state had fought to keep the two from being viewed as inter-related, the Montana Supreme Court has said differently. Witness the Montana Supreme Court’s decision in the Smith River case. Still, though, the exempt 35 gpm wells continue.

While we champion open spaces and agricultural uses, think about that as you drive down the road and see the thousands of 1-acre and 5-acre lots dotting the hillside, surrounding those agricultural lands. Think about that as, this summer, you dip your ankles in the waters of the Clark’s Fork or the Bitterroot and the water is piss warm. Think about how many exempt 35 gpm wells are pumping water out of the ground, depleting both surface and ground water at the expense of our state’s wildlife and fisheries and agricultural uses.

In 2007, House Bill No. 304 was passed, authorizing an interim study of water related issues, including exempt 35 gpm wells. The Water Policy Committee now hard at work. This is a list of the committee members. Also gathering comments is

Kevin Furey, representative for Missoula’s HD-91, sponsored HB 304. While the committee members are overwhelmingly eastern staters, this whole issue of water rights is something that effects all of us, statewide.

Water rights might seem more of a hugely agricultural issue – but I hope you all realize how the 35 gpm well exemption plays upon each of our lives. How it contributes to sprawl and impinges on senior water rights holders. How it impinges upon our right to a clean and healthful environment, and how, with closed basins which acknowledge the fact that water has already been over-allocated, the largest single economic growth that this state has – the recreational economy – suffers. All of this is driven by the 1,000’s of exempt 35 gpm wells drilled each year.

One of the most powerful anti-sprawl things you could do is to contact Joe Kolman and the members of the Water Policy Committee (along with your state representatives and Rep. Kevin Furey – contact information can be found via Project Vote Smart) and let them know how you feel about protection of senior water rights. Along the way you could be protecting both the fisheries and the largest single economic growth industry in the state, along with your rights to a clean and healthful environment.

  1. Curmudgeon

    This is a huge issue which has to date received very little attention in the media. Perhaps because the local print media is so beholden to developers and real estate people for advertising revenue.

  2. Lamnidae

    Terrific, informative piece Jhwygirl. One note: Kevin Furey resigned his seat when he was called to military training, and was replaced by MSO county commission vote (upon Dem central committee recommendation) by Kevin’s father Tim. Mr. Furey is running for reelection in this district, but I don’t know that he has the same legislative interests as his son.

  3. goof houlihan

    We can’t rely on water, deq, etc to effectively zone against sprawl. That REALLY is going to take….zoning.

  4. Curmudgeon

    Right on, Goof. Changes in state law regarding septic “mixing zones” and the 35gpm exemption will help, but only zoning at the local level will provide a legal basis for local governments to control growth and for local citizens to determine the fate of their neighborhoods.

  5. I agree, of course, with you goof.

    But I also see a problem when state law is subjugating individual private property rights in the name of development.

    I also have a problem with using every last drop of water in our rivers without concern to the greater public benefit of, well, having water in our rivers.

    Honestly, I don’t think that is too much to ask. Enough water in Montana’s rivers and streams to float a boat, to cast a line.

    Is that where the state stands? Allocating every last drop? Should it be that way?

    I hope not.

  6. Seems to me the more tools in the toolbelt to combat sprawl the better. I hadn’t given much thought to the question of water rights, and it doesn’t get much play in the media at all, but it should be a major issue. I’ll have the read that article to understand how it works.

    I hear about how the Colorado river often doesn’t even make it into the Gulf anymore, due to water being siphoned off to support those massive Sunbelt Metropolises. It would be sad to see that happen to the Bitteroot or the Clark Fork.

  7. oops, I forgot – thanks Lamnidae on the Kevin Furey correction.

    Daniel – keep in mind that the closure of a basin in an acknowledgment that water has been over-allocated. Missoula is nestled between the upper and middle clark fork basin, the bitterroot basin, and the blackfoot basin. Not a nice place to be, in terms of water. Couple that with the growth in Missoula and Ravalli…well, you get the picture.

    Here is a map of all of the basins.

    The upper clark fork basin is already closed. See all of the streams that the closure encompasses. Shocking. Rock Creek? The Little Blackfoot?

    This map shows the entire Bitterroot basin. I don’t know which of the sub-basins are closed.

    I just noticed – that link I gave, above, of all of the basins? You can click on any basin in there and get that basin’s map.

    Oh, and Daniel – congrats on that grad school acceptance!

  1. 1 Developer Rights v Private Property Rights - Guess (again) Whose Trumps Whose « 4&20 blackbirds

    […] Last week I wrote about the multiple permitting agencies doing the circular finger-pointing blame of who should be protecting private property rights (i.e., water rights). The state blamed it on the lack of zoning, local county officials blaming it on the state. That left my friend out, still, with both agencies continuing their permitting process and subdivision approval without any analysis to the impact that a proposed adjacent-to-his-property 45-lot subdivision would have on his private property (i.e., water) rights. […]

  2. 2 Better Late Then Never: Missoula Emergency Zones Away Lolo Gravel Pit « 4&20 blackbirds

    […] tendency to play the victim (Plum Creek Timber? Oh, I forgot, that’s the USFS’ fault. Exempt wells and well seepage zones? Oh, I forgot, that’s DEQ’s fault.) that drives me […]

  3. 3 DEQ in Disgrace « 4&20 blackbirds

    […] So much for senior water rights holders, I guess. […]

  4. 4 Is a Gravel Pit Looming in Your Neighbor’s Backyard? « 4&20 blackbirds

    […] a gravel pit is proposed, it’s already too late. Same with those subdivisions and their exempted 35 gpm wells and their 100-foot well isolations zones that can be on your property and their septic tank seepage […]

  5. 5 State Supreme Court Says “Yes” to Sprawl « 4&20 blackbirds

    […] it how the legislature enacts laws, and then ARM rules are enacted that exempt all kinds of stuff – like 35 gpm wells, which show total disregard for senior water rights and septic mixing zones, which receive little […]

  6. 6 What is Montana Without Its Rivers? « 4&20 blackbirds

    […] again, there’s also that other overly-generous rule that exempts 35 gallon per minute wells from environmental review – one big SCREW YOU to senior water rights holders […]

  7. 7 A Case for Eliminating the 35 gpm Well Exemption « 4&20 blackbirds

    […] disdain for the state’s exempt-from-review 35 gallon per minute (gpm) well exemption. (Look here, here, and […]

  8. 8 So Little Information, So Many New Lots…. « 4&20 blackbirds

    […] their all going to be on exempt 35 gpm wells, […]

  9. 9 Keep in Mind That What We Hear About is Only the Tip of the Iceberg « 4&20 blackbirds

    […] not much to the article, and I’m searching to find the opinion. But ya’all know how I feel about water rights, […]

  10. 10 Hearing Set for 35gpm Exempt Wells « 4&20 blackbirds

    […] – here are just two previous posts on the subject of “exempt wells” – HERE and […]

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