One step forward, one step back
"We suck at managing exempt wells," Michael 'Aquadoc' Campana bluntly declared on his blog late last year.
Water experts across the West likely nodded in agreement. And last week, even Montana regulators owned up to this shortcoming. The state Department of Natural Resources and Conservation acknowledged that subdivision developers were exploiting a loophole in state water law that allows rural residents to drill domestic wells -- which in theory don't pump enough water to have a measurable impact on existing water rights -- without a permit.
The jist of the problematic loophole, as I wrote last winter, is this:
In Montana, groundwater wells pumping less than 35 gallons a minute and no more than 10 acre feet a year don’t require a permit and aren't regulated under prior appropriation during drought. A 60-lot subdivision, for instance, can legally drill 60 wells into the same aquifer without permits or environmental review as long as those wells aren't connected. Even though the law says the exemption doesn't cover a "combined appropriation" by multiple wells from the same source if, together, they suck more than 35 gallons a minute, the state only considers wells that are physically connected by pipes to be a "combined appropriation."
The Montana DNRC rejected a petition from a group of senior water rights holders in the Gallatin Valley to close the loophole altogether, but promised to seek reforms to the law. The agency suggested that the number of lots at a time that could be legally served by permit-exempt wells should be limited to 12. In theory, that means large developments would need water rights before they could be built.
But the compromise offers the petitioners little comfort, said Matthew Bishop of the Western Environmental Law Center. "(Developers) can come in one year and put in 12 (lots), come in another year and put in 12," Bishop said. "They're going to find ways around it."
So basically, we still suck at managing exempt wells.
That's true in many states beyond Montana. "It's not so much that state water resources departments don't recognize the problem," according to Campana, "it's that they don't have the resources or laws to regulate these wells because state legislatures fear doing anything about them." In some states, bills to reform exempt wells laws are killed almost annually. Without legislative action, though, the authority of state agencies to regulate the wells can be unclear.
You can read about the trouble with exempt wells West-wide in "Death by a thousand wells."
Cally Carswell is High Country News' multimedia fellow.