Last month, the state Senator from Martinsdale received harsh criticism from dozens of opponents on his bill to “Revise exempt water rights laws.” Senate Bill 358 is an attempt to overcome the third court order in a row directing new residential development towards the water permitting and change statutes and away from the exceptions. Two district court orders and a Montana Supreme Court order all emphasize the exception to water right permitting statutes is not intended to exempt rapid residential growth from review at the expense of senior water right owners.
Ignoring three court orders, SB 358 doubles down on the exception and expands the 10 acre-foot “de minimus” standard established in law and recognized by the courts. Under SB 358 certain subdivisions would receive 24 acre-feet per year without Montana Department of Natural Resources and Conservation (DNRC) review. SB 358 also fails to stop combinations of subdivision projects from being put together in order to qualify for multiple exempt wells. Failure to address the cumulative impact of multiple subdivisions using a single aquifer is in direct conflict with the 2024 district court order denying the Horse Creek Hills subdivision near Canyon Ferry Reservoir. Judge McMahon made it clear in his denial that “Any and all phases of this project [Horse Creek Hills] are one single combined appropriation.” SB 358 does not cure this problem. “Project” remains vague giving room for misuse.
SB 358 imposes three new zones for land development. In other words, SB 358 flips land use on its head, placing DNRC at the front of the line dictating to counties where development can and cannot occur. Local land use plans, county zoning authority, and county jurisdiction over land use are put aside. SB 358 encourages developers to use the exception in most of Montana, the “green zones,” for residential development, with no protection for senior uses. For example, the Horse Creek Hills subdivision is in the green zone and SB 358 seems to encourage the subdivision to be developed under the very exception the court ruled against. SB 358 bans the exception in four “red” areas but does nothing to address the issues with the permitting and change process. This policy leaves land near our growing communities in a no-build status and pushes pressure onto adjacent lands, making existing uses vulnerable. Existing uses for irrigation, domestic, municipal, and in-stream flows are all at risk without review.
There is a better path forward that protects existing uses and allows for growth. However, this path will never be followed so long as new development can get water for free using the exempt-well loophole. Mitigation water supplies created through the water right change process gives a path forward for development, protects senior water rights, and compensates existing right holders for use of their water. But why would developers pay for water when legislation like SB 358 will continue the tradition of new development just taking it for free without review?
John E. Tubbs is an Upper Missouri Waterkeeper Board member and the former Montana DNRC director.