Exempt Wells

states in the country. Many of its residents live outside of municipal areas where they do not have access to a municipal water system and must rely on wells that tap into underground aquifers for water for the home. Approximately one-third of the state relies on a non-municipal water source, and with the increase in demand for available housing, the pressure on builders to meet the demand is immense.

Standing in the way of that is a permitting and water rights system that is complex, timely, and expensive, which is cost prohibitive to affordable and attainable housing.

Recently (August 26th, 2022) a lawsuit was filed against the DNRC and Broadwater County for a subdivision that would bring much needed homes to the area. These homes are what we consider mid-level homes whereupon those who have owned homes in town and want to grow, would be able to purchase a home on some land, thus opening much needed first-time homeowner inventory. We encourage this type of growth as it allows for growth and housing attainability.

This lawsuit specifically calls into question the DNRC’s approval of what is termed “exempt” wells, which has been an ignition point on the hill for decades. The question is, how do exempt wells impact water in the state? If you read the State Water Plan, you’d learn a few things about how de minimis exempt wells truly are, and you’d wonder why so much money, resources, and time have been spent on such an insignificant matter.

We did some math.

These numbers come directly from the 2015 State Water Plan executive summary and are also incorporated into the State Water Plan if you are interested.

The use of terms such as “total use” in place of “consumptive vs non-consumptive use” is strategically used, both in the plan and executive summary. It appears to emphasize total use, while minimizing the emphasis on what is consumed and or removed from the supply.

Interestingly, total use is measured at 84-million-acre feet—but 80.4-million-acre feet of that is immediately returned, otherwise deemed as non-consumptive use.

Of that use, approximately 3.6-million -acre feet is considered consumptive—by the State’s definition.

Of the approximately 3.6-million-acre feet used per year—based on the State Water Plan: Angle-right Ag consumes approximately 2.4-million- acre feet or 67.3% of all water consumed. Angle-right Evaporation consumes approximately 1-million-acre feet or 28% of all water consumed. Angle-right All other defined use (municipal, industrial, domestic and livestock watering) consumes between 3.71% and 5.5%—due to an unreported margin of error—or approximately 200,000-acre feet of all water consumed. Break that down further by types of use and you will find that of that 200,000-acre feet annually used:

Caret-Right Domestic is 0.4%

Caret-Right Industrial is 0.03%

Caret-Right Thermoelectric is 0.08%

Caret-Right Stock Water is 1.2%

Caret-Right Municipal is 2%

Caret-Right Unmentioned .99% margin of error

One acre foot is equal to 325851 gallons. This means that the total consumption of all other defined use is 178,548,493 gallons per day across the state. This is less than 200 gallons per person per day as they use water at work, at home, at the car wash, watering animals, watering yards, swimming in public pools, irrigating parks, golf courses, etc.

If we want to break that down further, of that roughly 178 mil gallons per day—municipal, and domestic consumption of water is about 2.4%—or 4,285,164 gallons per day. Considering there are 1.14 million people in Montana, that equates to less than 4 gallons per person per day being used at their homes.

On the other hand, ag uses 2,142,581,918 gallons per day.

Evaporation equates to 892,742,466 gallons per day.

Why is there so much time being spent regulating development, and blaming a housing development for water impact, while completely ignoring the two biggest water uses totaling 94% of the total statewide consumption—ag and evaporation? new center pivot? The answer is housing. Housing is an easy target as it dramatically changes the landscape and is clearly more visible. Lawmakers and conservation entities will attack the builders at every turn, spending an astronomical amount of resources, time, and money on probably the smallest water user in the state.

Ag is free to operate with very little regulation, and access to water is based on measurement tables that are over 50 years old. Ag also has flexibility on true measurement. They have no efficiency requirements or water infrastructure requirements, and yet they are the biggest users of water in the state.

Interestingly, going back to the math. If ag can show a 2% reduction in consumption, there will be a reduction of use by 4,285,163 gallons per day. That completely cancels out domestic and municipal use across the state—entirely.

This proves exempt wells—a subset of municipal and domestic use—to be de minimis. This is even more so when you calculate how a well and septic system work; they are essentially a closed system with groundwater recharge occurring through a septic filtration system—a system that is heavily governed by the DEQ and the EPA, with efficiencies and standards set much higher than people realize. The building industry standards on septic systems are substantially cleaner and more efficient than they were 50 years ago, so why are the builders restricted to old data while ag is privileged with old data?

The nutrient standards for municipal wastewater treatment, if allowed to go where the environmental groups would like to see it go, would have discharge of treated wastewater cleaner than the source it was originally pulled from. It would be a detriment to the ecosystem and the overall environment to recharge a source with water that would lead to a net depletion of mineral concentration, upend pH, and reduce overall nutrient content.

We ask—does ag measure seepage from irrigation canals, flood irrigation, etc. into groundwater? Is fertilizer regulated before being allowed to seep into groundwater and streams due to surface water runoff?

The elephant in the room is a double standard.

Cory Lee Ann Shaw, MBIA Executive Director

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Under Montana’s water rights system, a more complex and onerous permitting process is required for wells over 35 gallons per minute and 10 acre-feet per year. This more complex permitting process is both time consuming and expensive. However, a statutory exemption has allowed for the permitting of small wells (35 gallons per minute and 10 acre-feet per year or less) that do not exceed a specified flow rate or total usage of water per year.

This statutory exemption from the onerous permitting process for small wells and earlier interpretation of the term “combined appropriations” allowed small developments of approximately 10–20 homes to be built without going through the onerous permitting process and allowed homeowners to add a second well on their property without huge expense.

Unfortunately, in fall of 2014, all of this changed when a judge invalidated the 1993 definition of “combined appropriations” that had been in effect and ordered that the definition revert to the 1987 definition, which includes within “combined appropriations” wells that are not physically connected but are completed in the same source aquifer and “in the department’s judgment, could have been accomplished in a single appropriation.”

MBIA is strongly opposed to this new interpretation of the definition given the de minimis status of exempt wells. We further move that due to their exemption and de minimis stature, they also fall outside the definition of “combined appropriation” entirely. We believe that this perspective is consistent with the original intent of the legislature by putting an exemption in place. Exempt is exempt. Anything different threatens to completely halt the ability to develop a home and substantially increases the cost of development in areas outside of municipalities where many Montana residents prefer to reside, thus removing affordable and attainable housing from the table.