Exempt Water Well Rights In Question
 | Author:
Nancy Marks, MT43 News reporter
Nancy Marks: MT43 News Secretary and News Editor |
Exempt Water Well Rights in Question
Nancy Marks
MT43 News Reporter
Lake Vista Subdivision Landowners Meet with Montana Dept. of Natural Resources - Exempt Water Well Rights In Question.
Broadwater County is again the hotspot for the question of exempt water well rights. As the legislature and lawsuits grind on, homeowners don’t know if they’ll have legal water for their homes and yards or not.
On November 6, several Lake Vista lot owners, public officials and interested parties met with the Montana Department of Natural Resources and Conservation at the Community Room in Townsend to discuss the ongoing problem of whether the landowners had legal water rights for their water wells.
In a November 13 Montana Free Press article by Amanda Eggert, she wrote,” At the center of the exempt water well issue is a 1973 law passed by the Montana legislature which allowed anyone to get a permit to pump 10-acre feet of groundwater without demonstrating that nearby water users would not lose some of their water.” The article continued, 141,000 wells have been drilled using the exempt well law since 1973.
Although the November 6 meeting was not publicized, each landowner received a letter from DNRC noting “a recent court decision may affect your water use…” A copy of the letter was passed to Broadwater County Commissioner Debi Randolph. Randolph and Commissioners Jesse Swenson and Lyndsey Richtmyer attended the meeting, as did County Planner Nichole Brown. No Lake Vista Subdivision landowners agreed to speak about the meeting.
According to Planning Director Nichole Brown, the temperature of the meeting was high. landowners were initially “a little prickly” at the meeting, but meeting leader Anna Pakenham Stewart was gracious in explaining the situation. “Landowners left the meeting with a better understanding of the situation and what their options would be in obtaining water for their property,” Brown explained.
Briefly, the backstory in the county is that the Bozeman nonprofit Upper Missouri Water Users and Broadwater County landowners who hold senior water rights sued Broadwater County Commissioners and the DNRC in 2022 for allowing exempt water wells to appropriate water belonging to the senior water rights holders.
Horse Creek Hills, a proposed subdivision located on the east side of Canyon Ferry Lake, was the center of the lawsuit. In February 2024, District Judge Mike McMahon sided
with the nonprofit and Broadwater County senior water rights landowners. In a November 17 Montana Free Press article, McMahon’s ruling words to DNRC were "tortuously misreading its own rules and ignoring Supreme Court precedent on the cumulative impacts of exempt wells, especially near Canyon Ferry, a trout-laden reservoir already grappling with the kind of water supply and water issues that are exacerbated by wells and septic systems that often accompany them.”
County Planner Brown explained further that when developers apply for preliminary approval for subdivisions, they must follow two parallel processes. "One for local review from the County Planning Board and subsequently the Commissioners; the other is a state review for water from the Department of Environmental Quality and then the DNRC. The county has nothing to do with regulating or approving permits for water rights. We stay in our own lane,” she said.
Jeannie Steele, who admitted she was involved in sales of lots in Lake Vista subdivision, which has water rights for 10-acre feet of water, pointed out landowners were under the impression they would be permitted water rights under the exempt well provision. After they waded their way through the subdivision permitting process, they looked to DNRC for water right approval. She pointed out many of the approved subdivided lots already have houses on them before the landowners are even able to get wells drilled.
The DNRC policy is the well must be drilled and tested before it is approved for a water right. She put it this way: "What people don’t realize is their water in supposed exempt wells, with no applied water right, can be taken away. In my opinion, the exempt well setup is a joke.”
With no clear path forward, Pakenham Steward offered Lake Vista landowners their options: 1) Engage in shared voluntary water use reduction; 2) Apply for a beneficial use permit along with obtaining mitigation water, and/or 3) wait for long-term legislative solutions.
Steele suggested the options were asking lot owners to “play nice” and share water rights with neighbors who have none or wait for the 2027 legislature to fix the situation.
County Planner Brown weighed in on the impact of the law as it stands for land development in Broadwater County. She suggested it is a big deal because it will literally shut down land development in the county and the state. If the law is not fixed, the ripple effect in our county will be huge, she said: contractors will not have work, the tax base will not increase so school and emergency services will not be fully funded. Fewer dollars will be available for expendable items like buying books, trinkets and dinners out because of the stalemate in the law. The burden will be on large landowners and homeowners to pay for increased public services needed for the many new residents already living in the county.
House District 77 representative Jane Gillette made it clear: “It’s the legislature’s fault.”
She reiterated what others have said: that the 2014 law passed by the legislature leaves a loophole for exempt-well permitting, disregarding senior water rights on creeks and reservoirs. She pointed out that District 39 Senator Wylie Galt, White Sulphur Springs, introduced SB 358, which would have grandfathered in exempt wells drilled before the 2014 law went into effect. That would have avoided part of the problem. However, the bill died on the Senate floor, she said.
Gillette, who attended the Nov. 6 meeting in Townsend, commented on one of the options given. If the landowners agree to reduce their water usage, they could apply for a permit. The problem, as she sees it, is that the option has the chance to reduce the value of the property.
Another untenable option, although used in other parts of Montana, is for landowners to have their water trucked in from other sources. She pointed out that DNRC officials emphasized they would work with parties to iron out the problem and not turn off landowners’ water.
“It is interesting to note,” she pointed out, “that there are no DNRC police, so there is no way for the department to enforce the law on exempt well use. The only way DNRC would enforce the law would be if a neighbor filed a complaint.”
