It’s said that good fences make good neighbors – and in the West, that also applies to good water laws. So what happens when a legal loophole allows some well users to take more than their fair share?
The neighbors aren’t happy.
In Montana and throughout the West, rural homeowners have long relied on small groundwater wells for their water supply. And for decades, these permit-exempt wells (pumping less than 35 gallons a minute) didn’t seem to pose any major problems and largely flew under the regulatory radar.
But during the residential housing boom of the last decade, developers seized on the small-well loophole to avoid the time and expense of obtaining water rights for new housing subdivisions, including in overtapped river basins that legally are closed to further water appropriations.
Between 2000 and 2008, almost 30,000 exempt wells were drilled in Montana – most of them in the booming rural suburbs near Kalispell, Missoula, Bozeman and Helena. In some cases, these clusters of wells deplete stream flows in nearby rivers and streams and undercut the senior water rights of ranchers and landowners.
At a time of growing water scarcity in the arid West, this exempt-well boom threatens not only the economic viability of nearby ranches and farms but also the health of our rivers, fish and wildlife.
Rancher Polly Rex, whose family raises livestock near Absarokee, worries that a new exempt-well-watered subdivision of 60 homes sprouting up just down the road could dry up flows that she needs to grow hay and water livestock – in essence denying her ranch a water right that goes back to the late 1800s.
Indeed, the spread of unregulated wells directly threatens the “first in time, first in right” provision that forms the basis of water rights and land values in the West. As Rex recently said, “My water rights are probably the most important component on my place. I’ve been told since I was a little kid that they’re like gold. Now I’m finding they’re not worth the paper they’re printed on.”
To be clear, not all exempt wells pose problems. Isolated, rural wells for domestic and stock water have little impact on surrounding water levels.
The problem arises when permit-exempt wells are clustered for use by large subdivisions.
As we know, groundwater is the lifeblood of many rivers and streams, providing the base flows needed to keep them healthy. Concentrations of exempt wells can siphon off these replenishing flows.
Moreover, by failing to protect senior water rights, the exempt-well loophole undermines the integrity and fairness of the water allocation system and the ability of communities to plan future growth.
In Montana, ranchers recently filed a petition asking the state to require all groundwater users to get permits and account for their impacts on other users. Several other Western states are now looking at a requirement that all wells, regardless of size, must go through a permitting process. (At present, Utah is the only Western state with this requirement.)
Meanwhile, Trout Unlimited has proposed a market-based alternative: A groundwater exchange program that requires new developments using exempt wells to offset potential impacts by leasing water from other water holders to return to the stream, or purchase “water credits” that would supply extra water during periods of drought. This approach could be simpler, cheaper, and more effective than a complicated new layer of permit rules.
One thing is certain: Water officials in Montana can’t ignore this growing threat to our rivers and streams. Nor can they ignore a basic law of hydrology: All of our waters, below and above ground, are interconnected.
We must recognize that fact – or face a much drier, poorer future.
Laura Ziemer is director of Trout Unlimited’s Montana Water Project. She lives in Bozeman.