Tricky water issues rise to the surface of lawmakers’ agenda
By Michael Wright
Community News Service
UM School of Journalism
When it comes to water at the 64th Montana Legislature, there tends to be one bill on everybody’s mind – the Flathead Water Compact – but that’s not the only water issue that people are fighting over at the Capitol.
More than 40 water bills were introduced at the Montana Legislature this session, including bills aimed at mining operations, revising public notice requirements and exempt wells.
Some have moved through the process easily, like Libby Republican Sen. Chas Vincent’s Senate Bill 97, which aims to make it easier for the Department of Environmental Quality to reclassify waterways that may have been misclassified before.
The classification is based on what the stream’s most beneficial uses are, such as agriculture or recreation. For towns across Montana, the classification affects how much they dump into a stream from their own wastewater treatment plants.
Vincent said some stream classifications are more than a half-century old and may be wrong, but it was incredibly expensive for the department to revisit those under the old law. To reclassify a stream, they had to use expensive modeling systems to compare the current water quality to what it might have been when it was classified – possibly going as far back as the 1950s.
“We’re getting to the point where to move the dial even a little bit it costs tens of millions of dollars,” Vincent said.
The department, along with mining organizations and the Montana League of Cities and Towns, supported the bill. The Montana Environmental Information Center opposed the bill, asking for a clearer definition of “most beneficial use” to ensure existing uses aren’t harmed in the process.
It passed both Houses handily, and the governor signed it last month.
Vincent also has Senate Bill 57, which funds the water right adjudication process to verify existing water rights.
The Department of Natural Resources and Conservation has examined thousands of water claims in the state to ensure their validity, and this bill funds the re-examination of 90,000 water claims by 2023 and the finalization of a decree by 2028.
These claims are all from before 1973, and are spread across the state. The final decree will line out what water rights are valid.
Tim Davis, DNRC’s water resources administrator, said the department needed to verify water rights that existed before the current state constitution, and that this process is key to that.
The bill had no opposition, and sits waiting in the House Appropriations committee.
Those bills don’t rile people up the way other water issues do – like exempt wells, for example.
An exempt well is a water well that doesn’t need a permit. It can only produce 35 gallons of water a minute and 10 acre feet of water a year. There are more than 100,000 exempt wells in Montana.
The conflict comes when one water user has multiple exempt wells drawing from the same aquifer in a small area, like when a subdivision is built and a number of wells are drilled to supply all of the houses.
Mark Aagenes of Trout Unlimited said the proliferation of subdivisions in some popular valleys — like the Bitterroot, Gallatin and Helena valleys — has had an effect on the water available for fish populations, especially in key tributaries for spawning.
“We’re seeing higher temperatures on our rivers, we’re seeing lower flows on our rivers,” Aagenes said.
While conservationists worry the subdivisions will drain tributaries crucial for fish populations, water right holders worry they won’t be able to protect their water rights if the subdivision drains the aquifer.
Jay Bodner, of the Montana Stockgrowers Association, said his group is made up of people who have senior water rights, meaning they must get all of the water they need before the next right holder gets theirs. Water rights give someone ownership over a certain amount of water, and the older rights have priority over younger ones.
But this doesn’t apply to exempt wells, so if a senior right holder needs more water to satisfy their claim, it won’t come from the subdivision next door, no matter who came first.
DNRC rules require permits for a “combined appropriation,” which DNRC defined in 1993 as two exempt wells physically connected, like with a piping system. So, in a subdivision, each house could have its own exempt well — no matter how small the parcel — as long as none of them were connected.
Before 1993, that wasn’t the case. Without a permit, there couldn’t be multiple exempt wells drawing water from the same aquifer in a development.
In October 2014, a district judge in Lewis and Clark County struck down the 1993 rule, reverting back to a 1987 rule requiring permits for more than one well in the same development.
Rep. Carl Glimm, R-Kila, a builder, said the ruling “very significantly reduced what we can do as far as development.” He added that exempt wells are crucial for developers, since water rights are scarce in Montana.
“To go through and get a normal water right permit is nearly impossible,” Glimm said.
He brought House Bill 519, which would limit the number of exempt wells in a certain area. His bill would allow one 7.5 acre foot well per 20 acres of land, and would increase the allowable well size slightly for every acre over that.
Houses only need about .21 acre feet of water per year, so a 7.5 acre foot exempt well could support a number of homes without requiring a permit.
Glimm said the bill would allow subdivisions to be smaller and more dense and prevent urban sprawl.
He said he’d brought all sides to the table and thought they’d found a good compromise, but that wasn’t quite the case. The bill cleared the House, and went to the Senate Natural Resources committee – chaired by Sen. Chas Vincent – last week.
“By the time it landed in my committee it was not a consensus bill,” Vincent said.
Homebuilders and real estate agents supported the bill, saying it was a good compromise and that it helps them maintain profitability.
But, conservationists and ag groups remained unsatisfied, and said the bill wasn’t a compromise.
“It was their attempt, but it still gave them everything they wanted,” Aagenes said.
Aagenes wanted to see even more space between exempt wells, and added that bill made household water uses a higher priority than other water uses, disrupting the idea of giving older rights higher priority.
Bodner said it didn’t do enough to protect the water rights of ranchers, and didn’t scale down for smaller lots. If someone had a 10 acre piece of land, for example, they can drill the same size exempt well that they could if they had 20 acres.
The bill will likely need more amendments to get out of the committee. But, the deadline for bills to be amended and returned to their original house is April 11, so the turnaround would have to be quick.
Vincent said the bill is likely to die in committee. That will leave the 1987 rule in place, which requires permits for multiple exempt wells in the same development.