Guest Columnist
Going to the Well Too Often
Over-use of small groundwater wells due to a legal loophole could leave Montana -- and wilderness -- tapped out.By Laura Ziemer, Trout Unlimited, Guest Writer, 1-22-10
 |
|
 | |
|
It’s said that good fences make good neighbors—and in the West, that also applies to good water laws. So what happens when a legal loophole allows some well users to take more than their fair share?
The neighbors aren’t happy.
In Montana and throughout the West, rural homeowners have long relied on small groundwater wells for their water supply. And for decades, these permit-exempt wells (pumping less than 35 gallons a minute) didn’t seem to pose any major problems and largely flew under the regulatory radar.
But during the residential housing boom of the last decade, developers seized on the small-well loophole to avoid the time and expense of obtaining water rights for new housing subdivisions, including in over-tapped river basins that legally are closed to further water appropriations.
In some cases, these clusters of wells deplete stream flows in nearby rivers and streams and undercut the senior water rights of ranchers and landowners.
At a time of growing water scarcity in the arid West, this exempt-well boom threatens not only the economic viability of nearby ranches and farms but also the health of our rivers, fish and wildlife.
Rancher Polly Rex, whose family raises livestock near Absarokee, worries that a new exempt-well-watered subdivision of 60 homes sprouting up just down the road could dry up flows that she needs to grow hay and water livestock—in essence denying her ranch a water right that goes back to the late 1800s.
Indeed, the spread of unregulated wells directly threatens the “first in time, first in right” provision that forms the basis of water rights and land values in the West. As Rex recently said, “My water rights are probably the most important component on my place. I’ve been told since I was a little kid that they’re like gold. Now I’m finding they’re not worth the paper they’re printed on.”
Between 2000 and 2008, almost 30,000 exempt wells were drilled in Montana—most of them in the booming rural suburbs near Kalispell, Missoula, Bozeman and Helena. The trend shows no sign of abating: In Montana, the number of new permit-exempt wells outnumber new, permitted wells by about 10,000 to 1.
To be clear, not all exempt wells pose problems. Isolated, rural wells for domestic and stock water have little impact on surrounding water levels.
The problem is when permit-exempt wells are clustered for use by large subdivisions.
As we know, there’s a close connection between surface water and groundwater. Groundwater is the lifeblood of many rivers and streams, providing the base flows needed to keep them healthy. Moreover, groundwater is cool in temperature and highly oxygenated—both essential requirements for healthy fisheries. Concentrations of permit-exempt wells siphon off these groundwater flows headed back to replenish streams.
The exempt well loophole threatens the health of Western rivers and the wildlife and fish that depend on adequate flows. And by failing to protect senior water rights, it undermines the integrity and fairness of the water allocation system and the ability of communities to plan future growth.
In Montana, ranchers recently filed a petition asking the state to issue new rules requiring all groundwater users to get permits and account for their impacts on other users.
Several other Western states are now looking at a requirement that all wells, regardless of size, must go through a permitting process. (At present, Utah is the only Western state with this requirement.)
Meanwhile, Trout Unlimited has proposed a groundwater exchange program in Montana that offers a market-based alternative: A new development using permit-exempt wells would be required to offset potential impacts by leasing water from other water holders to return to the stream, or purchase “water credits” that would be used to supply water during periods of drought. This approach could be simpler, cheaper, and more effective than a complicated new layer of permit rules.
One thing is certain: Water officials in Western states can’t ignore this growing threat to our rivers and streams and to the foundation of Western water law. Nor can they ignore a basic law of hydrology: All of our waters, below and above ground, are interconnected. There is no magic bottomless well.
We must recognize that fact—or face a much drier, poorer future.
Laura Ziemer is director of Trout Unlimited’s Montana Water Project. She lives in Bozeman.
Like this story? Get more! Sign up for our free newsletters.
Comments
Perhaps a better solution would be to reduce the exempt well flow rate below 35 GPM. How much might the typical household need. 10?
Reducing the limit to what they currently use - as you ask - only maintains the status quo.
As for ignoring the return rate? You can't perpetually tap into a source and expect that the return rate increases proportionally by the number of wells punched. That's pretty basic logic.
The purpose of permitting should be to analyze both the impact on the ground and surface water to help determine the availability of the water.
That you mention septics only highlights yet another problem that leave both of these intertwined - when too much is returned, the ability of the natural environment to scrub the nitrates is impeded.
Permitted community systems along with community sewer is what is needed....if we wanted to be responsible. If you want to build a subdivision away from services, tap your own community well by proper analysis and permitting, and require proper treatment that ensures health return to the aquifer and surface sources.
I live in Oregon, and know that California has sappers out at all times testing the sovereignty of the flow of the Columbia River. California is out of water. To keep the swimming pools filled, irrigation water is being bought, and farms in the desert of drying up. The most insane of the California water issues is the Klamath Basin, in which the NGOs and California money have forced the hand of Warren Buffett and PacifiCorp to either refit at great cost four hydroelectric dams on the Klamath River on or near the Oregon-California border, or tear the dams out. I have a dog in the fight. PacifiCorps is the monopoly power provider to my little burg 300 miles to the north. I will have to pay for either dam removal or retrofitting, or replacement power construction and costs, none of which will be anywhere near the cost of hydro, probably natural gas burning turbines produced power will be the answer. Wind and sun are not 24/7 nor can they be put on line and taken off to match grid needs.
So the issue, of course, is "restoring a natural Klamath River, and salmon runs." Oregon farmers will lose their affordable power, and some of their water. Meanwhile, past the border on the Klamath River,, in California, major tributaries are over subscribed (more water than the river flows) for irrigation, and then you get to the confluence of the Trinity River and the Klamath River, 40 odd miles before they flow into the ocean as the Klamath River, the confluence where the cold water of the Trinity formed in alpine snow fields mingles with the warm water of the Klamath that has the anomaly of having its upper stretches in desert lands. And the Trinity is but a shadow of its former self because of the Lewistown Dam and Trinity Lake, 2,400,000 acre feet of reservoir on the North Fork of the Trinity, are used to divert annually, 2,500,000 acre feet of the Trinity River to the Sacramento River, through dam turbines, and down penstocks to turbines, making electrical power to pump the Sacramento River water up the San Joaquin Valley to irrigate desert land 600 miles OUT OF THE TRINITY RIVER WATERSHED. Now, cowboys and cowgirls, how in the hell you "improve" a river deficient 2,500,000 acre feet of cold water, and blame Klamath River warm water conditions on dams in another state, is beyond me. I can't get beyond 2,500,000 acre feet of water removed from a watershed with ESA issues on fish, and Indian fisheries issues, and dam removals being the panacea for recovery.
The issue is that California has 52 members of the House in Washington DC and two Democrat connected Senators. They can steal water, and force reparations on smaller states because they have the power. It is about power. It is not about "restoring" salmon. It is not about parity or fairness. It is not about anything but stealing more water from whoever they might, to propel the California Dreamin' Agenda, of splashing in the pool in eternal sun and warmth. It is about growing crops to pay the Bank of America farm loans. That bank was built on farm loans and continues to finance MegaAG...Californai Ag is more powerful than any one rep state industry or economy. CA is the worlds 7th largest economy, and it is built on water theft. All of the water of the Colorado river either goes to urban interests, or CA urban interests and ag. The whole of the west side snow melt of the Sierras is now captured and none is allowed to go to sea, thus killing the eco systems of San Francisco Bay and the ocean areas once fed the nutrients of the SF Bay plume from spring freshets and winter storms. Even a goodly amount of the water of the Klamath River is diverted to the desert, while punishing small town utility payers in another state to finance dam removal. Nobody talks about removing Lewistown dam and Trinity Lake. That water is a huge chunk of moving habitat that once nourished the famed Klamath salmon runs, and now grows Federally subsidized cotton in the desert. I can't get Milo Minderbinder out of my mind when I think about. Heller was so right!!!
The time to protect water and slow its theft was yesterday, or today, and certainly tomorrow. Neglect to do so will result in a huge price to pay in the future, as the socio-economic power of the likes of California will never, ever, quit finding ways to steal more water. They can't grow except on the foundation of water theft. Only by taking other state's water can CA or NV grow, and the money men create more wealth for themselves. If you believe Federal law and ecosystem protections will save you, you are wrong. California and Nevada will circumvent those in a heartbeat. Look at how Harry Reid got the Del Webb interests the 40,000 acres of desert tortoise habitat away from the BLM and into the Webb organization hands. The Senate Majority leader has the power to ram a land exchange bill through the Congess, just as Baucus did. And make someone else pay. Just like Baucus did. And Baucus can give your water away, too, if it would benefit him in some way.
While you and Trout Unlimited and some very concerned ranchers are attempting to plug leaks and loopholes in Montana Water Law by limiting household pumping, perhaps you should also examine the tremendous Legislature- and Montana Supreme Court-gifted loophole to Montana's ranchers - that is the exemption of stockwater rights under Montana Water Law and its ongoing Adjudication, basin by basin.
Not only don't Montana stockgrowers have to even file for a stockwater right from a spring, pond, river or groundwater, someone in their infinite reasoning did not even place a ceiling on the number of cattle or sheep being watered with the State's Public Trust Resources. This exemption granted to the privileged and highly subsidized Montana industry even allows for unpermitted construction of new stockwater ponds on private as well as State and Federal grazing lands.
Unlike the exempted homestead wells, in the case of the stockwater use, the Montana Water Court and Montana Department of Natural Resources and Conservation, the entities entrusted with this valuable Public Trust resource that belongs to all Montanans, not just those that are using it for free, don't even have a clue on how much water from each basin is being used consumptively by livestock or if in the future the unquantified usage will be increasing.
This means in any of the Adjudications, including the ongoing Big Hole Basin 41-D Adjudication, the state water managers have no idea if water has been over-appropriated or will continue to be after the completion of the adjudication. In our view, this is much more of threat to Montana's natural resources and Montanans' Constitutional right to a healthy and fully-functioning environment.
Montanans need to be concerned with climate change and how it will affect its water resources now and into the future, particularly in basins like the Big Hole River Basin (41-D), where the Montana fluvial grayling is hanging on by a slender thread in one measly reach of the Big Hole River between Wisdom and Jackson, MT, in its last stand in the Lower 48 States. When Lewis and Clark found this beautiful fish in Montana, it ranged throughout the Upper Missouri River Basin upstream of Great Falls, MT, including not only the Big Hole River, but also Montana's beloved Madison River, Jefferson River, Beaverhead River, Missouri River, Sun River, Gallatin River, and others in the expansive basin.
While precipitation amounts, types, and distributions are predicted to and are probably already changing, and with it, the warming of trout streams with reduced summer flows, cattle in Montana and throughout the West have become larger and larger. Also, from the original Texas longhorns grazing Montana's native grasses, there has been shifts to Black Angus, and to earlier and larger calves, which means larger and thirstier cattle than when the Animal Unit Month (AUM) concept was developed for a cow-calf pair.
What does this mean? Montana livestock are consuming more and more water and with climate change predictions of more droughts, warmer summer temperatures, and more solar radiation (longer growing seasons), these larger, black cattle will be thirsting for even more. And who loses in this livestock-dominated scenario of Montana's water resources - imperiled Montana fluvial grayling, Westslope cutthroat trout, Yellowstone cutthroat trout, and cold-loving bull trout as well as the anglers, outfitters and guides, kayakers, rafters, and canoeists, and small town economies that thrive with healthy river ecosystems.
Of course, some in Montana think that getting along with irrigators and ranchers is the only way to go. Well maybe so, but we should at least know how much water they are using, at least before they cast the first stone.
First off, Dave Skinner, "return flow" is largely a myth based on magical thinking. Scientific hydrologic studies on the Big Hole River of SW Montana proves that most water diverted from the river (by ranchers) or pumped from wells DOES NOT RETURN to the river. It's lost through transpiration and evaporation.
Bearbait, whether it's ranchers of greedy California developers/politicians, a fundamental problem is we do not set aside minimum in-stream flows for fish, wildlife, and riparian ecosystems. Sadly, water is considered just another form of private property--purely an economic resource.
Laura, Larry pretty well nailed the "TU is bending over to pick up pennies while ranchers are laughing nickels" argument. If TU and other groups would put this energy into a Public Trust Doctrine based law for instream flows, we could do much more good for fish & wildlife.
Some very good points on development and water use. But I agree with Larry and Pat in terms of missing the forest through the trees. The majority of all water removed from streams and aquifers in Montana is for irrigation, primarily production of hay and other crops consumed by livestock. And that water is owned by all citizens, but we allow this one industry to use it without regards for its effects on other users, and the wlidlife/fisheries that depend on it.
Organizations in the West often "lease" water from ranchers to maintain better flows in streams. This is sheer foolishness in my view. We own the water. This is like lending your car to someone to use and then having to "lease" it back from them. How crazy is that?
Stored water, behind a dam or some such structure, has a water right as well, the same as water diverted from a stream. A "surface water right." A well is a "ground water right." A stream can convey water from impoundment to end user by way of that stream. There is lots of water that is sent to agriculture by way of streams, and then diverted into canals and then laterals and finally to the farm. That is the major waste of water outside evaporation. The solution is hard bottom canals and ditches, which would be a great place for government to start to gain minimum stream flows. If water "saved" by cement canals, ditches, and plastic or cement laterals were not available for further irrigation, but for stream flow, you preserve both wildlife values and the ag we need to keep an economy running. This deal of continual denial of economic activity to preserve something here or there, has now come to fruition, and is severely biting the US on its ass. Just to take the water and claim it as owned "by all", as a form of commons, is probably not going to hold up in court at this time, and if there is to be a "taking" there will be a huge societal cost as damages are paid, and the possessors of water rights are paid for their loss. I believe that was the final result of the Wayne Hage lawsuit against the USFS over Nevada water rights and "improved" water gathering and dispersal infrastructure. It was millions of dollars. It would not be any different in Federal court elsewhere just because of that now being part of case law, and upheld by the 9th Circuit.
There are too many of us, and even in this time of great economic distress, there is a huge segment of people in this country who have some idea that everything someone else has is theirs, really, and has been wrested from them by some greedy person who has been more successful then they. We already had one civil war. We don't need another. This class warfare deal that seems to now permeate the American psyche is a bad path to take. It takes hundreds of years to get back to square one, if you even do. Ask a Russian. Ask a Cuban. And even if you are gaining something on one hand, you are sure to be losing something else with the other hand.
We have a water distribution legal system in the West. It works. Maybe not as well as some would like, and water is a finite resource will always be divided in ownership and use in a way not to someone's liking. Live with it. Water is a commodity like any other, and some end up with a lot more than others.
The part of the deal that bothers me is the rathole of "watershed enhancement" that consumes billions each year. My particular bitch is with California which has this repressive, Machiavellian, Byzantine, convoluted and difficult process to gain permission to log on your own private property, all in the name of "watershed protection", and then that "protected" water is directed onto some desert salt soaked sands hundreds of miles away to grow a Federally subsidized crop of corn or cotton. So you want you salmon fingerlings to be pumped out into the sand in clean water for some sort of health reasons? They are going to die in minutes as the sand heats the water, and it filters into the ground leaving the salmon fingerling to petrify in the desert sun. Having all this "protected" water to run out of pristine forests untouched by the hand of man to end up behind a dam, and finally in a tomato field, none of it ever reaching the sea, is a huge, huge waste of treasure and effort. A canard. A joke on capital and stewardship. No water getting into SF Bay, and no salmon now coming back under the Golden Gate is not just a California problem. There is no chinook salmon fishing allowed in the Pacific off Oregon, either. No water has reduced the Sacramento-San Joaquin runs from a million and a half fish in 2002 to less the 50,000 the last three years. That is what ag can do to a fishery in a decade. Not over fishing. Not logging. Not road building. Not housing development. Agriculture and water exports to drier areas killed those fish. The water was taken and used for purposes other than being a travel route and habitat for anadromous fish. Poof! Gone in a blink of the eye. And if Pelosi and Boxer turned their backs for minute, Harry Reid would be there to steal the water for Las Vegas, like he has from most of Nevada and now Utah.
But all the ballyhoooed effort is to take out dams where the fish runs are NOT decreasing. Sleight of hand. Queen Pelosi sleight of hand. Now you see a salmon and now you don't. But the Democrats, even all of them from California, take the money from the Green Lobby, and are never held to task for water theft in California and the species harm they do.
But they damn well are driving fish to extinction in clear, cold water!!! Gotta protect those watersheds. Del Monte needs tomatoes.
Regarding return flows, there has been a miscommunication on this thread. While water diverted for irrigation is consumed by plants or lost to evaporation, domestic water use is almost entirely returned to the aquifer through septic drain fields and sewage treatment plants.
For more information, please feel free to contact us at http://www.waterrightsinc.net or .
The waste of water by just one privileged rancher who is enjoying the free use of Montana's public water resources might supply the water needs for dozens of homesteads and their gardens.
Keep in mind the carbon or climate footprint of the livestock industry including grazing, methane and ammonia releases, irrigation, fertilization and weed/insect/fungus controls of forage crops, feeding and finishing in concentrations, slaughter, and all the transportation around the country that gets the meat from the grasslands to the grocery store and then to your refrigerator/freezer just makes the reality of climate change quicker to appear, last longer, and be more extreme. Perhaps we should rethink livestock production on a national and regional scale and grow them where it makes ecological and economical sense.
What this vicious cycle really means is a tougher and tougher outlook for Montana's water resources with really important ecological-political-social-economic decisions to be made by our leaders and water managers? Do we want cattle that are part of the problem without drinking water for homeowners? Or do we just do without Montana fluvial grayling, Westslope cutthroat trout, bull trout, and all the introduced game fishes and water-based recreation that are a vital part of Montana's heritage and local economies?
A goal of increased water use efficiency (sprinklers with downspouts vs flood irrigation) coupled with clear priorities for water use based on modern needs and economics that honor the Public Trust, not historic practices; with the end of subsidized, free use of this most precious commodity, fresh, clean, cold water should be a priority for Montana and the rest of the dry American West.
Exemptions ignore that.
Secondly - he reaches again to dropping the well exemption to that which the average household uses. Well - we've already got problems in some areas due to these exempt wells, most of which are (as Mr. Yelin reminds us) drilled for developer's subdivisions. If we "drop" the exemption to that which they are using now - essentially maintain the status quo - what have we gained? MT is still violating the law and senior water rights holders are being shat upon.
Maybe Mr. Yelin can explain how all those exempt wells will be shut down should a senior water rights holder make the call?
"....do we really want to eliminate exempt well and put further economic hardship on the building industry? " Wow. How arrogant.
Let me take a stab: Building industry: Unsustainable. We will run out of land with which to build well (ha-ha) before we run out of water. That's kind of the point of this discussion.
I'm tired of this mantra of "you'll hurt jobs and business if you do this or if you do that" and every lobbyist and 9 out of 10 legislators go running in fear. Shouldn't it come down to doing the right thing? Instead of the easiest most political expedient solution?
1. abstract: http://www.activelymovingwater.com/2009/11/water-bank-presentation-revisted.html
2. presentation: http://www.activelymovingwater.com/2009/12/water-bank-slideshare.html
The "affordable housing" scam got us to where we are now. Maybe we can limit domestic wells and guarantee it manifests forever.