In a 6-1 ruling on Tuesday, the Montana Supreme Court upheld a district court ruling that limted the number of household wells that subdivision developers could drill without a water-permit exemption. The ruling preserves Montana’s system of water rights that gives priority of water use to owners of older water rights and could ultimately keep more water in Montana’s streams.
Writing for the majority, Justice Laurie McKinnon went into 24 pages of detail as to why a district court judge was not mistaken when he voided a rewritten 1993 Department of Natural Resources and Conservation rule that allowed developers to sink unlimited numbers of household wells without needing a water permit. In addition, the court ruled that the previous 1987 DNRC rule limiting exempt wells would stand for now.
McKinnon did say that District Court Judge Jeffrey Sherlock could not require the DNRC to write a rule consistent with his ruling, but the DNRC would have to consider water rights and water law when writing a new rule.
On Wednesday, plaintiff and senior water-right owner Polly Rex was still somewhat stunned that she and the other plaintiffs had won.
“It’s been so long in coming. I’m just tickled to death. Now it’s up to the DNRC to come up with something that’s more in compliance with the Montana Water Use Act,” Rex said. “We’ve actually been worried about water since 1998. That’s when the other ranchers and I started understanding water law better, because we were pretty naive. We thought, ‘We have these senior water rights so they’ll be protected.’ Well, they weren’t at all. Then you just start to fight like hell.”
The Water Use Act requires water users such as farmers and municipalities to acquire water permits that spell out how much water they can use, where it comes from and during what times of year they can use it. The act codified a century-old priority system of “first in time, first in right,” where users with older permits can ask junior users to stop using water if water quantities are limited. This is especially important in several river basins where too many permits were issued and if all used their allotted water, they could drain the basin dry. Such basins have been legally closed to new permits.
However in 1987, the Montana Legislature created an exemption to the permit system. The intent was to allow farmers and ranchers on remote property far from towns to drill a small well for household use. Such isolated wells could use only a small amount – 10 acre-feet or enough to fill a football field with 10 feet of water - each year and then only at a certain rate of flow.
The current contention was created because the exemption said that “combined appropriations” could be exempt but only if the water used didn’t surpass 10 acre-feet.
Ever since then, a battle has waged over the intent of “combined” appropriation.
Originally, the DNRC wrote a 1987 rule defining “combined appropriation” as two or more wells in a project or development.
But then, in 1993, the DNRC rewrote the rule so that wells needed to be physically connected together before they were considered “combined.” No one can explain why the agency saw fit to rewrite the rule but it opened up the floodgates for subdivision developers.
When subdivisions were few, no one saw the impending ramifications. But as they proliferated, groundwater levels began to drop. The Montana Bureau of Mines and Technology has recently documented groundwater reductions in regions around Helena and Bozeman.
As evidence began to mount and counties continued to approve subdivisions of hundreds of units, senior water rights holders became concerned. After 1993, the DNRC estimates that the number of household wells grew by 3,000 a year. There are now more than 113,000 wells in Montana and the DNRC estimates another 78,000 were scheduled to be drilled by 2020.
Initial efforts to change the definition were made by a few in the 2007 Legislature but lobbyists from the realtors and well drillers defeated them.
So in 2009, the Clark Fork Coalition and four water-rights owners including Rex, challenged the DNRC on its rule, saying it harmed the rights of permitted water users.
A DNRC examiner decided that “combined” does require that wells be physically joined by pipes, but he also agreed that the 1987 Legislature never anticipated the run on subdivision development, according to court documents.
So the plaintiffs sued in 2010, challenging the DNRC’s conclusion. The Montana Well Drillers, Realtors and Builders associations intervened on the DNRC’s behalf while the Mountain Water Company, which used to control Missoula's water, intervened on the plaintiffs' side .
When Sherlock sided with the plaintiffs, the Well Driller’s Association appealed to the Montana Supreme Court, arguing that legislative amendments subsequent to the 1993 rule thus reinforced the rule. However, McKinnon cited cases that upheld the fact that unless the definition of “combined appropriation” was amended – it wasn’t – then the original 1987 intent should hold. And the majority agreed that “combined” refers to the quantity of water that a user has the right to use, not how wells are combined.
“We accordingly reject the Well Drillers’ interpretation that “combined” modifies wells or developed springs; combined modifies appropriation, which speaks specifically to the quantity of water which may be withdrawn for a beneficial use,” McKinnon wrote.
Justice Jim Rice was the only dissenting voice, claiming, among other things, that the 1993 rule should stand because it went without Legislative change for 20 years.
While no bill made it to the governor’s desk, a number attempting to change the rule were proposed, starting in 2007. They came after a 2006 Montana Supreme Court ruling that found that groundwater and surface water are connected, so large wells are required water permits because they can deplete the surface water that other users depend on.
Rice was also a dissenting justice on Montana’s recent stream access ruling supporting recreational use of bridges to access the Ruby River in Madison County.
This ruling benefits senior water-rights owners, most of whom are agricultural producers, but both the Montana Farm Bureau Federation and the Montana Farm Bureau have been silent throughout the years of debate.
Rex said that might be because ranchers are conflicted.
“Ranchers are kind of a funny bunch. They want to be able to ranch and they also want to be able to sell off a piece of property, if they need to, without guaranteeing water availability,” Rex said. “Unless you’ve been touched with what our group has been touched with, it’s easy to say, ‘Oh, well, these exempt wells are probably OK. It doesn’t affect me.’ But until your ox is gored, you don’t really get it.”
Rex still worries about the future of her water. The DNRC now needs to write a new law and the 2017 Legislature is looming. The Environmental Quality Council heard the news on Wednesday and some legislators questioned the ruling.
“The realtors and the builders are not happy with this. But senior water rights are supposed to mean something, “Rex said. “It’s not over yet. But it’s a fight worth having. You gotta have water.”