Issue Update: Exempt Wells...Try, Try Again

Since the late 80’s, Montana has been circling around the issue of exempt wells, their purpose in our state and how best to codify them in state law to protect all types and classifications of users.  Farm Bureau has always been at the forefront of this topic; working with other stakeholder groups to protect senior water right holders and to work towards a collaborative solution.  The hitch in the giddy-up with exempt wells has always been the definition of a ‘combined appropriation’ and how that impacts use of exempt wells.

Currently, there is no codified regulation of exempt wells in Montana.  The Department of Natural Resources (DNRC), through their administrative rule-making process, created a rule that is the current basis for controlling use of exempt wells.  Known as “The 87’Rule” this DNRC rule stated, in a nut shell, that two groundwater wells from the same aquifer or appropriation did not need to be ‘physically manifold’ (connected or piped together) to be considered a combined appropriation (Get all the details on combined appropriation on DNRC's website). Popular with wildlife and conservation groups, the 87 Rule limited the ability to use exempt wells, instead of the full water well permitting process, because of the combined appropriation definition.

However, in 1993, the DNRC again went through rule-making and established an amended rule that stated wells did have to be physically manifold or connected to be considered a combined appropriation (The 93’ Rule).  This rule was not favored among many groups and, arguably, made it easier to circumvent the permitting process and use exempt wells.

Water Policy Conversations Continue

Flash forward nearly 25 years and here we are…again!  In 2014, the Clark Fork Coalition (CFC) challenged the validity of the 93’ Rule.  This led to a Supreme Court ruling in October of 2014, the CFC Decision, which ruled the 93’ Rule was invalid and not consistent with interpretation of existing law. Based on that Supreme Court decision, DNRC has reverted back to implementing the ’87 Rule.

With the veto of HB 339 during the 2017 legislative session, this interim finds us back in the same old, familiar boat; where do we go from here? 

The Water Policy Interim Committee (WPIC) is determined to find a solution to provide to the Montana Legislature in 2019, making it important to suggest solutions to the committee.    Farm Bureau has been attending WPIC meetings, as well as meeting with other interested stakeholders to continue the discussion and move towards possible solutions.

Earlier in February, the Senior Water Rights Coalition and other stakeholders met to again tackle this issue and develop some potential solutions.  This process is in the early stages of development and there are still several options being discussed.  Currently, conversation is circulating around proposals of water metering, well spacing, limiting the volume of water per well and codifying the ’87 Rule into law and creating a simplified objection process in the event a user finds cause to object.

Bottom line; while the target is clear there isn’t a lot of broad consensus on how we get to that target.  It will take research, time, creative thinking and collaboration to finally punctuate this topic.  Farm Bureau is working to maintain the use of exempt wells for agriculture and we strongly believe we must strike a balance between the demands of development and the preservation of senior water rights.