Is This the Beginning of the End for Exempt Wells in Montana?

by jhwygirl

I won’t belabor you all with how I feel about about exempt wells, except to say that I believe the exemption to be an affront to senior private property rights across the entire state.

How it has gone on for so long – and considering the general reaction, statewide, to just the term “zoning” – boggles my mind. It’s one example of many, though, where the accusations of being “anti-business” or “anti-industry” (as in land development or real estate) win out over the rights of the individual property rights.

The Montana Association of Realtors have spent their hundreds of thousands of dollars well in Helena and around the state – their lobbyists have been extremely well at shutting down any real legislation to address these wells and they’ve poured money into candidates that wouldn’t dream of voting to halt or reduce the exemption.

Via The Button Valley Bugle, word comes that the Clark Fork Coalition and four other senior water rights holders, all from three different watersheds, have filed a petition for a ruling declaring invalid the convoluted administrative rule which has resulted in the 200,000+ wells that were exempt from review (and 1,000’s more being drilled every year – even in closed basins!) They are also requesting that a new rule be implemented that complies with both the Montana Constitution and Montana Code regarding water rights.

The group is represented by the Western Environmental Law Center, who has its Northern Rockies Office in Helena.

Here’s a link to the petition. It nicely lays out the history, the convoluted rule which results in the well free-for-all and the obligations under the law in comparison to what is actually taking place.

  1. Big Swede

    Thanks for the heads up jgirl.

    Called the well driller, set up two wells before TSHTF.

  2. goof houlihan

    Read this early this week about the ag interests really getting on the state about this issue and immediately thought of you and the discussions we’ve had here.

    As bad as sucking the water out of the closed basin is, tens of thousands of flushes back into the groundwater are worse. The argument has always been that residential doesn’t lose water to the air, especially when it’s not watering the lawn, so these small residential wells only really….get ready…”recycle the water”.

    So you don’t really lose that much water on these little residential wells; it’s just a bit…used.

    Enhanced really, like a vitamin water or the bottle with the lizard, only instead of ginseng and echinacea and b12 you get antibiotics and antidepressants and birth control hormones.

    • I’ve contemplated that “used” theory. While that would be a somewhat reasonable assumption, what I think also needs to be understood is the replacement or refiltering rate? What is the affect on the water table. It’d be different sub-basin to sub-basin (at least)….and approximated at best.

      Under that “used” theory, you’d be utilizing both the water table and the septic system as a holding tank. There’s only so much water in that tank though – you can’t drill drill drill in perpetuity. At some point, there’s going to be more up above the ground in use than that which has filtered its way back to the well pump.

  3. goof houlihan

    I went back and read our past discussions. There’s no joy in mudville and no zoning in counties anywhere, it seems. It’s ag who opposes zoning. Maybe they need to rethink that and support county wide zoning along with their opposition to the residential wells, septic tanks, and package plants that come as a result of their opposition to zoning.

    That would be a coherent position.

  4. ladybug

    It’s the sprinkling of lawns (“irrigation”) that consumes the majority of exempt well water. There are also hundreds of ponds evaporating groundwater under the exemption. WELC is also litigating the issue on behalf of ranchers near Columbus (Stillwater Co.)and Manhattan (Gallatin Co.), MT. It’s about time. Thanks for nothing Mr. Schweitzer and Ms. (DNRC) Sexton. It’s only gotten worse since Ds took the reigns. Not any more evil than Rs, just more ambitious, which causes more environmental rape and pillage.

    • Exempt wells have been around a long time..and I don’t know that there’s been any increase due to D’s being in control.

      I think that there’s an increase because there’s an increase in development and no legislature has been willing (a majority of both the house and the senate, at least) to address either development or water issues, attempt as some do.

      Now, those coal-bed methane wells and that water exemption, though? That is/was certainly problematic…and the push by the department for that coal bed methane water welfare bill this past session? Worse. Schweitzer gets big credit for vetoing HB 575.

      Let’s hope some sense takes hold over mining Otter Creek.

    • goof houlihan

      Lawns are only sprinkled something less than three months out of the year, even in arid areas like gallatin. two months is more likely.

      I’d like to read an expansion of your assertion.

      I’m not a fan of DEQ’s role in rubber stamping rural subdivisions’ septics and the ubiquitous gravel pits, either.

      A pox on both houses, I say. We should in my lifetime, elect a governor who wants to do the job of managing the Executive branch, and has the skills, for once.

      • anon

        We should in my lifetime, elect a governor who wants to do the job of managing the Executive branch, and has the skills, for once.

        I hope you are very young Goof, as it may take a long time.

      • It’ll take not only an active executive, but quality legislators. Voters need to think critically about whom they elect. Look at the vote record. Some of them have quite a history available right on the state’s legislative website.

        Instead, few even know who their state legislator is.

        We have some quality legislators up there, but not enough. We need a majority of good ones. Ones that will listen and analyze problems rather than parrot talking points from the loudest donor or lobbyist.

        • anon

          Check out the big spending legislators. Here you can see how many new State employees each legislator voted to hire and how much money they voted for.

          From there I guess you can decide if you want to vote for more State government and spending or less.

          Oh wait – you won’t get to vote for that as State revenues are falling quickly and are not projected to reach 2008 levels until 2015. How will those big spending legislators deal with that?

      • Re: watering of lawns. Does it matter how many months out of the year? With each new subdivision is another number (dozen? hundred?) of new exempt wells, each with their own little lot.

        It can’t be sustained. There’s only so much you can bring up above the ground in any one drainage at any given time before you exceed the replenishment rate of the aquifer.

  5. Chuck

    I too thank you for the heads up. I called the out of work well driller and bought one of his rigs. If anyone needs some REALLY deep fence post holes give me a call…

  6. ladybug

    Okay then jhwygirl, a pox on both their houses. I never recall Republicans pretending to be “green.” And I am in no way defending them. It’s just that a lot of good people voted Democratic expecting better environmental policies after years of Republican deregulation and privatization, and instead get more (net increases) exempt wells, more vanity ponds, more logging on state lands, more oil and gas and coal development. It’s hard to argue against the fact that special interests seem to have gotten stronger. And it’s hard to find many examples of new regulatory mechanisms to replace those weakened or lost under Racicot and Martz. I’m just sayin’.

  7. Tobie

    You complain that the REALTORS have spent money blocking this legislation, but you lack any understanding of why. The money they put into the “Evaluation Montana’s Water Resources” study shows very plainly that exempt wells do not have an effect on senior water users.

    If the problem is septic, than have the conversation about septic.

    If the problem is growth, than have the conversation on growth.

    • The problem with exempt wells, as I see it, is primarily two issues: Property rights and water as a resource.

      I don’t believe water is an unlimited resource. We’ve got rights conferred on senior water rights holders – but no protections. Senior water rights holders have every right to be concerned, and beyond that, Tobie – the law can not overlook those senior rights, and right now it is by exempting certain water right filers.

      • Tobie

        I never said that water is an unlimited resource. I don’t believe it is, and that is especially clear in areas like New Mexico and California where it has become a huge issue.

        What I said is that studies show that exempt wells don’t impact senior water users to the extent that many have claimed for years. If we could bring our water rights system into the 21st century and make it work for both agricultural and residential development, I’m all for getting rid of exempt wells.

        What I am against is using an argument that has been proven to not be the real issue. Exempt wells aren’t creating a problem, so why do they need regulation?

  8. problembear

    thanks tobie for that piece of extraordinarily good news. i will be sure and pass along your lobbyist stance that groundwater is actually an endless resource. farmers and ranchers who need to hire well drillers at huge expense to water their livestock and crops after developers and coal mines move in around them will be thrilled to hear this.

    thanks to your group’s optimism there will no longer be a need to extend their well casings further since exempt wells will no longer have any effect on their wells.

    of course this defies the laws of physics, but by all means let’s keep developing wells with no oversight by state hydrologists and planners. no need to worry about an infinite resource.

  1. 1 Hearing Set for 35gpm Exempt Wells « 4&20 blackbirds

    […] in early December, 5 senior water rights holders in 4 different basins filed a complaint to the state over its Administrative Rules regarding exempt […]

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