Time Running Out for Surface-Groundwater Legislation

By Daniel Testa, 3-23-07

Before Friday’s hearing for a bill to instruct the Dept. of Natural Resources and Conservation how to issue groundwater permits in closed basins, a small group sat near the door listening to a song on a CD player.

It’s a jaunty new country tune titled, “A Montana Water Rights Ballad.”

While simply reading the lyrics doesn’t do justice to the melody written by Frosty Erben of Billings, the chorus does describe the feelings of some of the bill’s opponents:

“Keep a moving guy, Don’t ya listen to their lie, We gotta wonder why,
They’ve made a plan so sly for water.
People can’t you see that the DNRC wants our water runnin’ free.
Leavin’ nothing there for you and me … water,
Cool, Well, Water.”

Every bit as political as a Dixie Chicks number with none of the production value.

Unfortunately, the House Natural Resources Committee didn’t have the luxury of listening to the ballad, as a handful of supporters and many more opponents—including the DNRC—packed the room to weigh in on House Bill 831 by Rep. Walter McNutt, R-Sidney.

The bill is the product of McNutt’s session-long effort to set forth rules for the DNRC to issue groundwater permits in the wake of the April 2006 “Smith River” Supreme Court decision, which recognized that groundwater and surface water are connected. The decision forced the DNRC to cease issuing groundwater permits in “closed basins,” where all surface water rights have already been taken.

The current bill is an effort to split the difference between the two failed bills McNutt introduced last month.

“Water is one of the most precious things we’ve got in this state,” McNutt said. “It may have been gold, at one time, but now water is one of them.”

The bill allows the DNRC to issue new groundwater permits in Montana’s five closed basins so long as a hydrogeologic study and other tests show no harm to senior water rights holders.

If studies show the new permit would adversely affect senior water rights holders, then that new user must take steps to restore the water by purchasing or acquiring a part of a senior water right to compensate, or “recharging” the aquifer by replenishing the groundwater somehow.

Any aquifer recharge from, say, a septic tank, must be purified to meet drinking water quality standards. The bill does not require new well drillers—who may have spent thousands on DNRC permitting studies at the time the Smith River decision came down and ceased any further closed basin permits—to redo studies required by the bill.

But the bill also says the DNRC has been issuing groundwater permits without legislative authority, an issue currently under litigation. Any water right, outside the Clark Fork, issued by the DNRC based on the agency’s criteria prior to “Smith River” would have to meet HB831’s requirements.

Supporters of the bill said it provided a means for the responsible issuance of new water rights permits, even when some depletion to senior water rights holders occurs, so long as there is no adverse effect. And when there is an adverse effect, the bill explains how compensation must take place.

Even the bill’s supporters said the end results of the bill were good, but the permitting process was complicated and expensive.

“Sound groundwater management requires not only good substance but a good permitting process,” Laura Ziemer of Trout Unlimited said, then went on to point out four chunks of the bill she said needed to be cut all together.

Holly Franz of PPL Montana emphasized the urgency of the issue.

“This bill is the only vehicle that we have right now to address what is Montana’s most pressing permitting issue,” Franz said. “We just can’t go for two years in this situation, we need to address it this session—this is the vehicle.”

Critics of the bill said it left the DNRC wide open for lawsuits and adds more uncertainty to the groundwater permitting process.

DNRC Water Division Administrator John Tubbs handed out a flow chart showing four junctures of the bill’s permitting process that leave the agency open to litigation.

“The department sees extensive process issues that will likely cause significant litigation before they can be resolved,” Tubbs said.

Representatives of the Stockgrowers Association, Farm Bureau Federation, Water Rights Association, builders and Realtors all spoke up against the bill.

McNutt resolved to spend the weekend working on amendments that address some of the bill’s procedural problems, but time is running short.

The bill has a $500,000 price tag to hire three new employees to manage the hydrogeologic studies. Because the bill costs the state money, it has to make it through a House Appropriations Committee vote after Natural Resources.

Thursday is the deadline for Appropriations bills. McNutt said he hopes to get a vote on the bill Monday.

As the hearing ended, the room broke into applause for McNutt because of his hard work this session to pass a meaningful groundwater law.

But he seemed frustrated that the opponents had not stepped-up to help him craft the bill, only to attack it after it was written.

“There seems to be some kind of magic around here today that all of a sudden we got all kinds of gremlins picking at this bill,” McNutt said. “But I’m a pretty stubborn guy.”