Montana Legislature

A Deluge of Water Rights Bills

By Dan Testa, 1-29-07

The debate over the connection between groundwater and surface-water has been played out in multiple hearings this legislative session, and it is one discussion that will likely happen many more times more before things wrap up.

Today the debate concerned House Bill 262, which would require that small, residential water wells have a permit. Current law allows wells that pump 35 gallons-per-minute or less, to avoid attaining a permit from the Department of Natural Resources and Conservation.

Introducing the bill to the House Natural Resources Committee, its sponsor, Rep. Mike Jopek, D-Whitefish, said 8,400 new homes went up in Montana in 2005. Sixty percent of those homes were built in four counties: Missoula, Gallatin, Flathead and Yellowstone.

In these counties and many other places in Montana, Jopek said, existing water rights users are suffering from the massive residential construction underway. Developers deplete the groundwater supply when they build thousands of new homes, each with a residential well small enough to avoid regulation.

“What this bill simply does is ask you to protect – protect – existing water rights users,” Jopek said, “The guys who came first.”

“These particular kinds of issues are not going away,” Jopek said. “We’re either going to deal with them via legislative policy or, one way or the other, they’ll end up in the court system.”

Representatives of Lewis and Clark County, Trout Unlimited, Montana Smart Growth Coalition and a number of ranchers and landowners spoke in support of the bill.

Walt Sales, a rancher and irrigator in the Gallatin Valley, said he’s witnessed the exploitation of the small well exemption in his home valley.

“It doesn’t matter if it comes out of one hole or 300 holes,” Sales said. “To me, my pasture’s gonna end up the same – empty.”

Opposition to the bill rose from the Montana Association of Realtors, the Homebuilders Association, the Water Well Drillers Association and, somewhat incongruously, the DNRC.

Critics say the effect of all the extra permitting for smaller wells will be a bureaucratic backlog causing years of delay. This delay will raise the cost of new and existing homes as the permitting fees are passed on to the consumer and impeded development limits new home construction.

Glenn Oppel of the Montana Association of Realtors called the bill “an unscientific overregulation of exempt wells that will cause the cost of housing to rise.”

“Yes, growth counties are growing like mad, but the evidence shows that exempt wells are using a mere fraction of water that’s in the watershed,” Oppel said. “It will also make it much more difficult and much more costly to build housing where it is needed most in Montana.”

John Tubbs, of the DNRC, called himself a “reluctant opponent” of the bill, because it lacked a fiscal statement to explain the cost of new permitting regulations.

The bill would cause around 1,200 new permits to go before the DNRC each year, Tubbs estimated, and the money is simply not in the governor’s budget for the significant workforce increase needed to handle those reviews.

“We’re going to be back on this issue,” Tubbs told the committee.

Jopek also introduced Stephen Custer, a hydrologist and geologist at MSU-Bozeman, as an informational witness to affirm the relationship between groundwater and surface water.

“There is a connection between groundwater and surface water,” Custer said. “This is not open to question at all.”

Custer added, however, that that relationship is stronger in some parts of Montana than others.

A flurry of similar bills that tackle the issue of groundwater-surface water connectivity have had hearings. Today, the House Natural Resources committee also tabled a bill similar to Jopek’s, HB 104, sponsored by Rep. Kevin Furey, D-Missoula.

The most anticipated bill, HB 138, comes up next Friday. Sponsored by Rep. Walter McNutt, R-Sidney, the bill seeks to comprehensively revise the laws governing water appropriations in closed basins, imposing heavy regulation on any new water use and eliminating the distinction between ground and surface-water.

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