Ranchers, irrigators bear cost of rampant exempt wells

Farmers, ranchers, and other senior water rights holders have been expressing strong concern regarding the exempt well statute. For the last 30 years, the law allowed for wells to be dug without a permit, review of the effect, or neighbors' knowledge, thus depleting groundwater and stream flows, leaving agriculture and other senior water right holders to make up the difference.

The concerns are tangible in western Montana where development has boomed in recent years. Susan and Jack Lake grow seed potatoes and a variety of other crops on their generational Ronan farm and worry about their water rights being usurped by growth in subdivisions with exempt wells.

"Our senior water rights are foundational to our survival in ag," said Susan Lake. "Without water there is no farm or ranch to pass on to the next generation in the arid West. There is enough uncertainty in agriculture with high inputs, uncertain markets, and burdensome regulations promulgated by disconnected urban politicians and bureaucrats. We must protect our senior water rights."

Although this problem of too many straws in the ground has been primarily in central to western Montana, eastern Montana ranchers and irrigators worry about the depletion of water downstream, too.

"When you start looking at the Upper Yellowstone Basin, and all the development that goes in there and everybody's punching a well, that groundwater starts being depleted," said Doug Martin, the Kinsey Irrigation District manager and a board member of the Montana Water Resources Association. What that means is that an 1893 water right way downstream in Kinsey, Montana, may struggle to fill its right because of the upstream use. He sees a need for a change in how exempt wells are handled.

"We've heard about wells going dry in western Montana, and whatever happens in western Montana hits eastern Montana. When it comes to exempt wells, there is no threshold to be met as long as that exempt well pumps under 35 gallons per minute. Take that well, and you see 35 gallons a minute or 10-acre feet per year comes to 3.25 million gallons of water per year one exempt well uses. Then take that number times the number of exempt wells in the Gallatin or Bitterroot, and you're going to see an impact on surface water and the irrigators' availability to it."

Martin said parameters are desperately needed for exempt wells, noting that small water use is fine if someone wants to water their lawn or use the water for a small field.

"I do think density is the issue," Martin said. "We're not talking about a farm or ranch family punching a well and building a house for the next generation, but when that farm or ranch gets subdivided, and the developer starts punching many wells, that's the problem."

Long-time rancher and MFBF Richland County Farm Bureau member Jim Steinbeisser worries about senior water rights being compromised by the lack of parameters around exempt wells.

"People say that if you have senior rights, you have an avenue. If you're losing your water, you can go to court. However, that process is clumsy, expensive, and onerous. If you get a population taking your water, you could lose anyway. It doesn't make sense to force a senior water right holder to go to court in the future when we see all these problems coming down the pike. We need a different avenue. We need to be deliberate about permitting water."

The rancher noted that the process for stock wells and other small use permits should be streamlined, but senior water rights still need to be protected.

"If you want a well in the middle of nowhere, it should be simple, but if you're on the edge of Belgrade, permitting needs to be more involved. We need to find a way to do that."