Judge Strikes Down Montana Exempt-Well Rule

Permits have not been required for individual wells that flow less than 35 gallons per minute

By MATTHEW BROWN, Associated Press

BILLINGS — Montana officials were reviewing permit requirements for small water wells on Monday after a judge struck down a rule that had allowed residential subdivisions to drill multiple wells without obtaining permits.

District Judge Jeffrey Sherlock said Friday that the 1993 rule violated the intent of the Legislature when it set limits on permit exemptions in the 1980s. The judge ordered the Montana Department of Natural Resources and Conservation to come up with a new rule.

The case stems from a long-running dispute over whether developers of subdivisions and other large projects have used the small-well exemption to skirt protections for water sources and the rights of other users.

Under the 1993 rule, permits have not been required for individual wells that flow less than 35 gallons per minute. There are more than 110,000 exempt wells in Montana, DNRC Director John Tubbs said.

Tubbs said officials were considering an appeal or asking for a stay on Sherlock’s ruling until a new rule can be put in place. He said the ruling should not immediately impact individual homeowners.

“An owner who puts more than one well into a single aquifer may be subject to permitting, but we’re not anywhere close to making that decision,” Tubbs said.

In the 1980s, state regulations required permits for multiple wells used for a single purpose or project. Those regulations were rewritten in 1993, to require permits only for those small wells that are physically connected as part of a system.

In 2009, the Clark Fork Coalition and a group of ranchers petitioned the state to close what they characterized as a loophole in the permitting requirements. The petitioned was denied, and the case went to court.

While a new rule is pending, Sherlock ordered the DNRC to reinstate the earlier regulations, adopted in 1987. Those said that wells from the same development that draw water from a single source do not have to be physically connected in order to require a permit.

Plaintiffs’ attorney Matthew Bishop said the intention of his clients was not to stop development, but to make sure impacts on existing water users are taken into consideration.

State officials had argued before Sherlock in September that the regulations were meant to prevent farmers from overtaxing water supplies for their irrigation, and that subdivisions were never mentioned or considered by lawmakers.

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