Legislative Water Woes

Montana Legislature Faces End Game for Groundwater Solutions

By Dan Testa, 4-02-07

	This picture from the Montana Department of Fish, Wildlife and Parks shows a dry part of a streambed on the Smith River near the Eden Bridge during the 2003 drought. Click here for more photos and information about the Smith from the agency.

UPDATE: House Bill 844 by Rep. Debby Barrett, R-Dillon, failed a House vote Monday, 47 to 53, with 4 Republicans and all Democrats opposed.

In the Montana Legislature’s waning weeks, the fight for the state’s most precious resource – water – is just ramping up.

The question of who gets the rights to the groundwater in Montana’s fastest-growing valleys has the potential to profoundly affect the economic, agricultural and recreational future of the state.

Without the ability to dig new wells to service growing towns and subdivisions, Montana’s economic growth will stagnate, developers say. But farmers and ranchers argue that their seniority must be protected from municipal development while still allowing them the flexibility to dig new wells for irrigation.

In a Legislature otherwise hobbled by bitter partisanship, two House Republicans are facing-off over how to tackle the problem. The result could be one of the most important achievements of the session – or rank among its deepest disappointments.

Since Day One of the current legislative session, Sidney Republican Walter McNutt, chairman of the House Natural Resources Committee, has been trying to hammer out a groundwater bill in the wake of last year’s Supreme Court “Smith River” decision, which ruled that surface water and groundwater are intrinsically connected in some areas of the state. As a result of the ruling, laws pertaining to the acquisition and use of either form of water, which were formerly considered separately, must now be considered together.

The Smith River decision prohibited the state Department of Natural Resources and Conservation from issuing permits to drill for groundwater in so-called “closed basins,” where all available surface water rights are already claimed.

After watching two previous groundwater bills flop, Rep. McNutt rolled out House Bill 831 in an attempt to split the difference between those earlier attempts.

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 potential harm to current, or “senior,” water rights holders.

If studies show that a proposed well would siphon away from senior water rights holders, then that new user would have to take steps to restore the removed water, either by purchasing or acquiring a part of a senior water right to compensate other users, or by somehow “recharging” the aquifer.

Any aquifer recharge from, say, a large septic tank, would have to 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 – to redo studies already in-line with new requirements.

McNutt’s bill also contains a roughly $500,000 provision for the Bureau of Mines and Geology to conduct a study on the abundance of Montana’s groundwater.

HB831 met stiff initial resistance from agricultural interests and the DNRC, but passed the House 72-26 after several amendments clarifying the permitting process were made to the bill.

But now, Republican Speaker Pro Tempore Debby Barrett of Dillon, a fellow member of the Natural Resources Committee, is making a last-ditch and relatively quiet effort to pass a competing bill that applies only to the specific areas listed in the Smith River decision: the Teton, Jefferson/Madison and Missouri River basins.

Barrett’s bill, backed by the Montana Stockgrowers Association, bypassed McNutt’s committee and went straight to the House Appropriations Committee for an unannounced hearing the same day it was introduced.

Barrett said McNutt’s bill puts policy before science by laying down unnecessarily restrictive permitting procedures in the absence of sufficient scientific data on the quantity of Montana’s groundwater.

The Legislature, she noted, is establishing an interim water committee to study the issue in greater depth. Barrett said her bill will get the state through the next two years until a more-informed policy can be crafted during the next legislative session in 2009.

While McNutt’s bill requires more extensive hydrogeologic studies, Barrett’s would allow the DNRC to use the now-suspended groundwater permitting procedure already in place.

Supporters of McNutt’s bill say it better protects senior water rights holders by providing, up-front, the scientific evidence showing whether their rights are being harmed. Under Barrett’s bill, they say, the burden is on the senior water rights holder to pay for studies to show they are being harmed.

But Barrett’s supporters say that under McNutt’s bill, no rancher or farmer can afford to pay upwards of $15,000 for hydrogeologic studies necessary for each well they may want to dig for irrigation. Additionally, Barrett’s supporters say current DNRC procedures adequately protect senior water rights holders, and that the burden is always on the new applicant to demonstrate no harm to senior rights.

Some of those who favor Barrett’s bill are irrigators and subdivision water-suppliers who had already spent hundreds of thousands of dollars in hydrogeologic studies and well-digging when the Smith River decision came down and the DNRC subsequently rejected their permits. Barrett’s bill would apply retroactively to those caught in permitting-limbo.

“(McNutt’s) bill is custom-written for the Gallatin Valley, and if it passes the rest of us will just have to live with it, and it won’t be good,” Barrett said.

All sides concede that the growth pressure in the Gallatin Valley is a huge factor in the debate. At hearings for both bills, most of the testimony came from developers, irrigators and attorneys representing interests in the Gallatin Valley.

McNutt said that as the Gallatin Valley goes, so goes the rest of the state, and his bill would allow other growth-areas to avoid the mish-mash of local water statutes and litigation there.

“I think it’s fair state policy,” McNutt said. “Why would you do it in one basin and not all of them?”

Last week, McNutt opposed his party’s leadership on the House floor in order to keep his bill from heading to the House Appropriations Committee, the same committee that endorsed Barrett’s bill. He told the House he feared what might happen to it there.

“I’m not comfortable after I see the members on my side of the aisle, how they voted on the bill today, and the maneuver I saw yesterday on a bill,” McNutt told legislators. “I’m not comfortable with this bill going to Appropriations, and I object.”

Now his bill goes to the Senate, and Barrett’s bill heads to the House floor for debate.

As for whether the bills can be combined in some way, that will be decided – like so much else – in the session’s final days.

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