A county judge has put a stop to subdivisions unrestricted use of exempt wells in the state. Jeff Sherlock nullified a 1993 Department of Natural Resources and Conservation law that allowed developers of subdivisions to drill an unlimited number of small, home wells without needing to get a water rights permit. According to the 1993 law, so long as the wells were not connected, a subdivision could pump 1,000 acre-feet of water without a permit. Farmers and ranchers using the same amount of water had to apply for a water right or permit to use state water.
The fight over subdivision water rights began in 2009 when a few Billings ranches asked for a rule change, due to a lack of available water from nearby subdivision use. Under Montana law, anyone using state water needs a water right and people with the oldest water rights get priority. However, a loophole in the books allowed wells pumping less than 10 acre-feet a year to not need permits. When the law was drafted in the 70’s, there just weren’t that many of them. But recently, subdividers had used the law as a way to avoid either paying a city for their water, or attaining a water permit.
Senior water rights holders can ask other junior water rights holders to use less water when it is short, but they have no way to make exempt wells curtail their water use. But now, the judge has ruled against the law, making subdivisions hook up to city water or get their hands on a permit.
This law will have an impact on real estate development in Bozeman and Montana. How it impacts new subdivisions is yet to be seen, but homeowners moving into these subdivisions should be aware of the updated law.