Montana Senate Passes Closed Basin Groundwater Bill

By Daniel Testa, 4-17-07

The Montana Senate on Tuesday passed, 39 to 11, a bill setting forth guidelines for the Dept. of Natural Resources and Conservation to issue permits for groundwater development in closed basins.

House Bill 831, sponsored by Rep. Walter McNutt, R-Sidney, is the Legislature’s response to the April 2006 “Trout Unlimited” Supreme Court decision, which established that surface water and groundwater are connected.

By establishing that new wells could siphon water from rivers and harm senior surface water rights holder, the TU decision effectively ceased the DNRC from issuing any new groundwater permits in Montana’s five “closed” basins, so-called because all the surface water rights in those valleys had been claimed.

The impact of this bill could profoundly affect Montana’s growth; you can’t build a subdivision, nor expand an agricultural operation, without a well to service it.

After months of complicated hearings involving highly-technical testimony by water law attorneys, hydrologists, irrigators, Realtors and others, the Senate debate on the bill Tuesday was simple and straightforward in contrast. It’s amazing how smoothly things go when the experts are taken out of the argument.

Senators scratched their heads and groaned as they flipped through House Bill 831’s 45 pages. But in the end, they resisted any amendments that would have significantly changed the bill’s intent. HB831 now heads to the House for a vote on its amendments.

McNutt’s bill allows the DNRC to issue a groundwater development permit in closed basins if the applicant’s hydrologic study shows no harm to senior water rights holders. If there is harm shown, the applicant has two ways to compensate: by either purchasing part of a senior water right to make up for the new water usage, or by showing that the new usage would immediately return water to the system through “recharge.”

Aquifer recharge from, say, a large septic tank, must meet drinking water quality standards.

Those applicants who were midway through the groundwater permit application process when the TU decision came down, will retain their priority and will not have to pay for new hydrologic studies that are already in line with the bill.

The Senate debate centered on an amendment offered by Dillon Republican Bill Tash that basically said the DNRC could only determine harm to a senior water rights holder if that harm can be measured.

While that amendment sounds like common-sense, its critics said it would gut the bill. At issue is the difficulty of exactly quantifying the groundwater-surface water connection. The DNRC can determine how much a new well would pump, but to exactly measure how much water that might take away from the senior surface rights holder a mile downstream is nearly impossible, though the cumulative of a thousand new wells is likely to cause major disruptions.

Sen. Greg Lind, D-Missoula, compared it to a bank account with a $500 balance. If you wrote 60 $10 checks, Lind said, some of those checks are going to be good. But in the end, you’ll be in trouble.

“Each appropriation, no matter how small must be measured,” Lind said. “What this (amendment) takes away the ability to consider is cumulative effects.”

The amendment failed and opponents then returned to the criticism the bill has faced throughout the session: that it imposes an onerous permitting process and puts policy before adequate scientific research has been done on the amount of Montana’s groundwater.

“This bill makes it very very tough for small water users to get a water right because of the cost of the study that has to be done and the data that’s not available now and its going to be quite some time before it is,” said Sen. Verdell Jackson, R-Kalispell. “People spend thousands and find out at the end of the process that their application has been rejected.”

But supporters said the bill was the only vehicle to allow any groundwater permitting to go forward.

“Does it make things more difficult for some folks? Probably yes,” Lind said. “There’s no way to make a water bill for the state of Montana simple.”

Park City Republican Bob Story told lawmakers the 2009 Legislature could change the bill after seeing how it worked.

“If you want to have the opportunity to develop water in Montana for the next couple of years, this is the vehicle,” Story said. “If no one wants to comply with this bill wait two years and see if it gets any better.”