Hearing Set for 35gpm Exempt Wells

by jhwygirl

Back in early December, 5 senior water rights holders in 4 different basins filed a complaint to the state over its Administrative Rules regarding exempt wells. The complainants claim that the failure to adequately review the impacts of each water right as it may harm senior water rights holders can not continue – that the interpretation of what a combined appropriation (as it is in Administrative Rules) does not meet the lawful obligations under the Constitution, nor do the ARM meet the lawful intent under Montana Code Annotated.

I am in full agreement – here are just two previous posts on the subject of “exempt wells” – HERE and HERE.

Billings Gazette had a brief release today, noticing that a hearing had been set for June on exempt wells. While the brief post didn’t explain much, it’s clear from the comments that people are paying attention to the issue.

From the DNRC’s website:

HELENA, Mont. – The Montana Department of Natural Resources and Conservation (DNRC) today announced the appointment of a hearings officer and a schedule for submitting briefs and public comment on water appropriation rules governing exempt wells in Montana.

“The use of exempt wells is an issue of statewide importance, with statewide implications,” said DNRC Director Mary Sexton. “This briefing and public hearing process will allow formal input from all interested parties.”

DNRC Deputy Director Joe Lamson will serve as hearings officer and will make the final determination on the issue, Sexton said.

Opening Briefs and Position Statements are due at DNRC’s Water Resources Division Hearings Unit by 5 p.m. on April 30, 2010. Responses are due by 5 p.m. on June 4, 2010.

Sexton said the Public Hearing is scheduled for 9 a.m. on June 17, 2010, in Room 303 (the Old Supreme Court Chambers) of the State Capitol, 1301 E. Sixth Avenue, in Helena.

In December 2009, the Western Environmental Law Center on behalf of five petitioners requested DNRC to make a ruling on whether the combined appropriations rule governing exempt wells is consistent with applicable law.

Petitioners additionally requested DNRC adopt a new definition of the rule. Sexton said the Dept. would refrain from taking up the amendment request until a determination is made on the declaratory ruling, which is expected in July, 2010.

“This process may not be the final step in determining the appropriate use of exempt wells,” Sexton said. “Further court or legislative action made be necessary to ensure we have clarification of the term ‘combined appropriation.'”

I hope Montanans take notice of this issue – as now is the time to speak out. The problem, in a nutshell, is the state’s current exemption for review on wells (typically domestic) of up to 35 gallons per minute. And interpretation which has made its way into ARM rules allows for subdivisions to be approved as having adequate water if the developer relies on each lot drilling its own well (as opposed to looking at the combined appropriation of water for the entire subdivision and its impacts on senior water rights at the time of subdivision reviews. The rules conflict in complete ignorance to the guarantee and protections to senior water rights holders.

Developers are skating the review process for adequate water in new subdivisions by relying on exempt wells. This is occurring in closed basins – basins that the state already acknowledges are over-appropriated.

What is Montana? Is there room for ranching and farming? Water is a big part of that. Do we preserve those rights? Or do we punt the Constitution and the property rights of the individuals over the desirous property rights of those who wish to develop?


  1. Chuck

    I live in a small subdivision within a closed basin. The community water system for our fully built out 30 year old subdivision has 2 wells. Our allocation calls for 20 wells and we will never need them. We have plenty of water, even if the irrigators continue to spray water on the dusty roads all summer. This means that 85% of our water right is available to be used by others including small lot homeowners on single wells. We have enough water with our little water right to provide for 600 more houses which is ten times the number of lots available. The people that are trying to scare you about closed basins want to control the water so they can SELL you water. They are greedy little grubbers and they have fooled you all into thinking this is a water shortage issue. It’s about money and wealth, the haves against the havenots.

    • No one is scaring me about closed basins. Facts are facts, Chuck, and there’s only so much water to go around. It’s simple logic.

      Out these ways, folks are having to drill deeper and deeper – and up on the Smith (which is now a closed basin) people were having trouble punching wells in within 50 feet of the river.

      I’ve heard a little about the proposal you are talking about – TU is and advocate – and I do not support it. I don’t even know how it would work – you have points of diversion (that are difficult to change) and points of use (which, too, are difficult to change). Then there’s the use itself.

      If we can’t regulate it now enough to ensure that senior water rights are preserved, how in the hell would we do it by letting people sell it to whomever for use wherever, for whatever?

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