Cally Carswell's recent post on the Goat Blog of the High Country News relates the story of exempt well problems in Montana's Gallatin Valley. There, rancher Joseph Miller is claiming that exempt wells, aka domestic wells, are depleting his water. These wells supply water to the new homes and subdivisions in the valley. Miller believes thay have been responsible for drying up at least one stream on his ranch. The rub is that Miller likely has permitted rights to his water, whereas the exempt wells, by definition, are exempt from permits.
To address the problem, Miller and a few other ranchers recently petitioned Montana’s Department of Natural Resources and Conservation to stop letting residential developments use exempt wells to skirt the state’s water laws. They claim exempt wells will draw down water supplies that they have senior rights to.
I have previously posted on Western exempt well issues including the Bounds case in New Mexico, which sounds similar to the situation Carswell describes. This case, still under appeal as far as I know, found for the rancher who claimed domestic wells were impairing his water right.
Carswell's post states that there are about 200,000 exempt wells in Montana, almost as many as we have here in Oregon (c. 240,000) and more than in New Mexico (c. 130,000). As many as 78,000 more are expected in the next 10 years. I suspect that virtually of these new wells will supply homes by out-of-staters in subdivisions, many of whom will be 'amenity ranchers' or 'amenity farmers'.
The post continues:
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 above describes a major problem: subdivisions where the water supply for each home is provided by an exempt well. In this manner, developers can escape the responsibility to obtain a water right and build a water system; the homeowners assume the responsiblity. If you're using an exempt well out in the middle of nowhere, your well will probably not have much effect. But if you are in a large subdivision in which each home has a well, that could be a different story. Water quality could suffer as well, since homes are likely on septic tanks.
I encountered this problem in New Mexico. I recall getting an earful from a state senator railing against developers who would 'game the system' by building subdivisions that required homeowners to drill their own wells. Not only did such wells impair the rights of others, but they compromised groundwater quality because the homes were closely-spaced and on septic tanks. In some cases, the developers had water rights, but withheld them so they could lease or sell them at a later date.
Carswell includes this quote:
"There’s really no protection in place for senior water rights," says Matthew Bishop, an attorney with the Western Environmental Law Center, which filed the petition on the ranchers’ behalf. Bishop says the state has known exempt wells are a problem "for a number of years," but "no one’s been willing to fix it."
"We felt we had to force the issue," he says.
What struck me about this story is that Jared Diamond touches on this problem in his excellent book Collapse, in which Montana has a key role. Diamond uses the case of the Bitterroot Valley in Ravalli County (see pages 52-53) and mentions the issue of domestic wells and their effects.
One of these days, states will wise up to the exempt well issue and do something about it. It's not so much that state water resources departments don't recognize the problem; it's that they don't have the resources or laws to regulate these wells because state legislatures fear doing anything about them. That's been the case here in Oregon.
You hear the SOS: "I'm not the problem, I just have a domestic well." Yeah, you and a gazillion other folks.
The graphic (from GOOD's Summer 2009 issue) says it all: We suck at this. Do we ever!
"The county itself lacks the resources to monitor its aquifers and does not carry out independent assessments of water availability when it is considering a developer's application to build a new house. Instead, the county relies on the developer's assurance that enough well water will be available for the house." -- Jared Diamond, Collapse, p. 53, referring to Ravalli County, MT [as of 2005]