Bozeman News

The inside scope on Montana Water Laws and HB831

Water in the West: The State of Montana’s Hydro-Future

By Rep. JP Pomnichowski, Guest Writer, 10-01-07

Editor’s Note: As we all know in Montana, water is a precious resource, particularly in areas of rapid development and growth. The following column is written by one of the authors of House Bill 831, which assisted in closing water basins in areas that water availability closely matches water demand. She describes the history of water laws in Montana and how HB831 revised these laws in order to construct a viable future.

Montana epitomizes the West. It is a land of vast and open spaces, dramatic mountain ranges, blue-ribbon trout streams, wildlife habitat, ranches and Western towns, herds of livestock, mighty rolling rivers; it’s Big Sky Country. And it’s easy to forget the basis upon which Montana has built its success--its lifeblood, water.

In Montana, the crucial role of water has been tested by energy development, urban development, agriculture, wildlife and wildlife habitat, and recreation. Every feature of Montana is affected by water.

The state recognizes water rights for many beneficial uses, and water is so precious that our constitution declares that all waters of the state are the property of the state for the use of its people. We’ve recognized that water is precious since before the state’s inception, and there are laws against wasting water, the first passed in 1873. Water rights have been claimed in the region simply by putting water to beneficial use from the time when the area was a Territory, before statehood was granted in 1889.

With water rights sometimes a century old or older, Montana water law recognizes the first-come, first-served prioritization of water rights. It’s called the prior appropriation doctrine, which honors ‘first in time, first in right’ water claims.

In recent years, water use has increased to the point that, for five river basins in Montana, the demand for surface water and groundwater has allocated all the available surface water in those drainages, forcing statutory closures of the basins to new applications for water use. We closed the basins to protect and preserve the existing water rights and uses. In the Gallatin River basin of the Upper Missouri, for instance, the water budget is nearly balanced—the amount of water available in the basin closely matches the demand for all of the water.

Different types of beneficial uses help to determine the amount of water used, and so does historical use. People use water for agricultural uses such as stock water and crop irrigation, domestic use, fish and wildlife, industry, mining, municipal use, power, and recreation. All those uses in a basin with a finite amount of water can result in a closed basin. But changes in use can reallocate water.

We aren’t adding any more water to the system, we are just changing who or what uses it: crop irrigation using flood irrigation or sprinklers generally consumes more water than home (domestic) use, so ranchland or native plain that’s being developed for residences may demand less water.

Because of the high demand for water and our closed basins’ zero-sum water budgets, state lawmakers recognized the need to address water needs in closed basins.

I co-authored House Bill 831 during the 2007 legislative session to revise water laws to deal with closed basins in areas of rapid growth.

HB831 addresses applications for new water use in closed basins, as well as standards for water quantity and water quality. For the first time, it requires the Department of Environmental Quality (water quality) to consider applications with the Department of Natural Resources and Conservation (water quantity). Previously, each department performed well, but independently, of the other; HB831 requires reporting and coordination of applications. It also requires hydrogeologic study and mitigation plans for new water use in closed basins.

Under the new law, requests for groundwater in a closed basin will be considered if applicants show that their groundwater use won’t adversely affect existing surface water rights. This requirement preserves our prior appropriator doctrine. Proving no adverse effect is done with hydrogeologic studies, maps and studies showing interconnectivity with surface water, measuring or modeling net depletions, addressing timing of water use, and planning for mitigation of water use, if necessary.

The five closed basins in Montana are all in the west, and all in areas of accelerated growth:
• Missoula (the Upper Clark Fork and Bitterroot Rivers)
• Choteau (the Teton River)
• Bozeman/Belgrade/Three Forks (the Madison/Jefferson drainage and the Upper Missouri (the Gallatin River))

The western part of Montana will feel the effects of HB831 first, but the bill requires more stringent policies for water quantity and water quality in closed basins, wherever they are in the state.

One of the most significant contributors to degraded groundwater quality and lessened water quantity are wells that are exempt from the permitting process and individual septic systems.

Exempt wells were originally granted for small uses of water, like single home domestic uses at rural density, considered to use so little water as not to affect an aquifer or drainage.

The amount of water allowed to be drawn from an exempt well is 10 acre feet per year, pumped at no more than 35 gallons per minute. In single home applications, and in their limited numbers, exempt wells and individual septic systems did not affect water quality or quantity.

But now, with western counties blanketed with stand-alone subdivisions at urban density, the cumulative effect of all those exempt wells and septic systems pollutes groundwater and draws down underground aquifers. Additionally, exempt wells have no required testing, reporting, or registration, and we don’t have them mapped.

In a state with thousands and thousands of exempt wells affecting our limited water resources, HB831 helps shape policy to satisfy the call for water, protect senior appropriators, and preserve and improve the quality of our water.

The water in a closed basin is especially precious because there’s nothing upriver; once we’re out of water in a closed basin, we’re out. Water quality in a closed basin is paramount, too. When clean water is taken, clean water must be returned.

One of the aspects of HB831 of which Iím most proud is the requirement that waters returned to groundwater through injection must meet drinking water standards or non-degradation standards (a state environmental quality specification). With this requirement, those taking and using fresh water cannot return degraded (polluted) water for the next user; it must be clean water in, clean water out. And with some counties reporting high levels of nitrates in groundwater, along with pharmaceuticals and hormones introduced through septic systems, protecting our water quality and quantity is vitally important. We are the stewards of our resources.

Montana has been called the Headwaters to a Continent, and that’s true. But before those waters benefit the continent, they flow through Montana, for the benefit of its citizens. We must make sure the citizens are working also for the benefit of the waters.

Representative JP Pomnichowski is a first-term legislator in Montana’s House of Representatives. A fifth-generation Montanan and Bozeman resident of 22 years, JP is a graduate of Montana State University and serves as president of the Bozeman Planning Board and Zoning Commission. She has championed state laws and local policies to preserve and protect air and water resources, to promote responsible growth, and to honor Montana’s land-use heritage.

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