Some of you may know there is an exception in Montana Water Law allowing users of low flow rate/volume wells (and other groundwater sources) to obtain water rights without going through the water right permitting process. That exception is about to change! The exemption statute reads, in part; "... a combined appropriation from the same source by two or more wells or developed springs exceeding 10 acre-feet, regardless of the flow rate, requires a permit".
There has been an on-going dispute over what the term, "combined appropriation" actually means. Several years ago, the Department of Natural Resources and Conservation (DNRC) stated its opinion that the term meant that two or more groundwater sources were physically plumbed together to serve the same project. In 2009, a petition was filed challenging the DNRC's interpretation of the term. A ruling on the petition gave the legislature the opportunity to craft a bill to either codify the DNRC's interpretation or redefine it. The legislature's attempt to pass a bill satisfying the ruling failed so the DNRC was required to write an Administrative Rule to define the term "combined appropriation".
The DNRC has recently published proposed rules defining the term "combined appropriation", as it applies to new groundwater developments. The proposal is a drastic change from the agency's earlier position. A copy of the proposed rules can be found at http://dnrc.mt.gov/PublicInterest/Notices/August/36-22-175pro-arm.pdf. Now, the public has an opportunity to comment on these proposed rules. A public hearing will be held on Sept. 19, 2013 in Helena. Comments can be submitted in writing prior to that date or people can comment in person at the hearing.
What does this mean for land owners and developers? In short, the proposed rule limits the flow and volume that can be withdrawn from multiple wells under the permit exemption when those wells are located on parcels smaller than 40 acres in size.
In the past, it was possible for a land owner to drill multiple wells on a parcel of land and, as long as those wells were not physically connected, the land owner could file for a water right for each well for up to 35 gallons per minute (gpm) and/or 10 acre-feet per year. Additionally, when land was being subdivided, an individual well for each lot was possible as long as all other sanitary and set-back restrictions were met. Each lot owner would be able to use up to the full 35 gpm and 10 ac-ft because those individual wells would not be considered a "combined appropriation".
The new rule will mainly apply to parcels of record less than 40 acres in size, those parcels that exist on the date the rule is adopted. Multiple wells located less than 1,320 feet apart will be considered a combined appropriation and will be limited to a total of 35 gpm and 10 ac-ft. In other words, if you subdivide a property into anything smaller than 40-acre parcels, all the wells that are eventually drilled on that smaller parcel will be limited to a combined total of 35 gpm/10 ac-ft. If a larger flow and/or volume are needed, it will be necessary to go through DNRC's water right permitting process.
The permitting process in many areas of the state is time consuming and expensive, especially in basins that are closed to new appropriations. In all closed basins, any new uses must be mitigated by retiring existing water rights. In most cases, mitigation involves purchasing existing water rights and retiring those rights to compensate for the new use. DNRC must approve mitigation changes. The applicant must apply for a new permit and a change, and go through the regulatory process on both applications. Costs often range in the tens of thousands of dollars and the time to complete the process is typically at least one year and often takes two years or more.
Bottom line, if you are planning to subdivide and the total water use in the development will exceed 35 gpm and/or 10 ac-ft per year, you will need to obtain a water right permit. In many areas, successfully obtaining a permit will require mitigation, so be prepared for this to take some time!
For more information, contact Julie Merritt or Karl Uhlig at WGM Group by phone at 728-4611 or via email at firstname.lastname@example.org or email@example.com.
Check out KPAX's story, Stevensville celebrates its "new look".
Check out the ribbon cutting celebration on KPAX news and read the letters of support received from Senator Baucus and Senator Tester.
The official ribbon cutting will be alongside Highway 93, at Meridian and Main. The celebration will continue in Victor Park, located behind Farmer's State Bank, for the Congratulatory Awards Ceremony. Several Montana State dignitaries will be in attendance, along with representatives from the Citizens Advisory Committee, local Focus Groups, WGM Group, the Montana Department of Transportation, and the contractors to celebrate the completion of this award-winning, state-of-the-art highway.
This project has been in the making for many years and is now a completed four-lane highway from Missoula to Hamilton with a bike/walking path along the full 36 miles between Lolo and Hamilton.
Cake and beverages will be served. This is a non-alcohol event. In the event of inclement weather, the ceremony will be moved to the Victor Volunteer Fire Hall, across the street from the park.
If you have any questions, please feel free to contact Julie Hoselton, Highway 93 Ribbon Cutting Chair, 406-370-1736, firstname.lastname@example.org.