Montana Legislature

Groundwater Bill Clears Committee

By Dan Testa, 3-27-07

UPDATE: Tuesday afternoon a second groundwater bill was introduced by Rep. Debby Barrett, R-Dillon. House Bill 844 is scheduled to bypass House Natural Resources and go before House Appropriations Wednesday. Stay tuned for more on the hearing and how the two bills shake out.

After debating more than one hundred amendments Monday night, the House Natural Resources Committee passed, 12 to 4, a bill allowing the Department of Natural Resources and Conservation to issue new groundwater permits in closed basins.

Sound obscure? The bill could have a profound effect on everyone from developers to farmers to fishermen to boaters. In short, this bill could be among the most important pieces of legislation to emerge from a session, at this point, widely regarded as dysfunctional.

As growth explodes throughout the West, lawmakers must protect Montana’s water against out-of-state interests, said the bill’s sponsor, Rep. Walter McNutt, R-Sidney.

“I think we’re behind the curve in Montana and if we don’t take care of our water my feeling is that somebody will take care of it for us,” McNutt added. “They haven’t got any place else to get it.”

House Bill 831 will likely go before the full House for a vote this week.

At Friday’s initial hearing, both opponents and supporters criticized the permitting process laid out by the bill while praising its end results.

McNutt, also the committee chair, then spent the weekend simplifying aspects of the permitting process to cut down on areas open to legal challenge.

“I think the structure’s there, the balance is there, the procedure’s there,” McNutt said of the finished product.

The bill represents the legislative response to the April 2006 “Smith River” State Supreme Court decision, which legally recognized a connection between surface-water and groundwater, and forced the DNRC to cease issuing new groundwater permits in closed basins.

Under the bill’s guidelines, the DNRC may issue a groundwater permit if hydrogeologic studies and a series of other tests show a new a new well won’t affect the surface rights of senior holders. If those studies show the new well would harm senior water rights holders, the applicant must lay out a plan to restore the water by acquiring part of a senior water right or “recharging” aquifer by restoring the groundwater somehow. Water released by an aquifer recharge must 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 those seeking new groundwater permits will have to bear the cost for any new requirements to bring their applications in-line with the bill.

Now conspicuously removed from Friday’s bill is a section issuing a very public smack-down to the DNRC for issuing groundwater permits in the absence of legislative authority.

As of this writing, the DNRC was not available for comment.

McNutt said he’s satisfied—considering his bill and another setting up an interim committee to study water issues in Montana—that the legislature is making good progress when it comes to water.

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