Montana Viewpoint

March 17, 2008

We Montanans are used to thinking of water almost as we think of air—infinitely plentiful and pure. While we’ll never have to restrict the use of air in Montana, we are beginning to restrict the availability of water in the developing areas of our state.

Use of water in Montana is governed by the issuance of a Water Right. It defines the use, location, flow, and volume of the water that the water right holder is entitled to. They are private property, and the doctrine of “first in time, first in right” gives an older right legal priority over newer rights. That means, when water is scarce, newer rights holders may have to curtail or stop their water consumption so the senior right can be filled.

The only exemption to the need for a water right permit is for a domestic well with a use of water less than 35 gallons a minute. These are called “exempt wells”.

A few years back it became obvious that in certain river basins we had issued rights for more water than there was water available, so in order to protect the senior rights holders from losing their water, parts of river basins in Montana became closed to the issuance of new water rights in the late 1980s and the 1990s.

That was no real hardship in most basins until what seemed like the entire population of the United States began to want a home in Montana.  That’s when the beauty of our landscape combined with our limited amount of water to create something close to crisis; the areas people wanted to move to were in closed basins like the Bitterroot and Gallatin Valley. When people moved to Montana one by one, they bought a lot, built a home, and drilled an exempt well. As the number of new residents increased year after year, new subdivisions were built to house them, and those subdivisions contained smaller and smaller lots than before.

In a high density subdivision the best way to supply water is to put in a community water supply system, which requires getting a water right. But in closed basins new rights are not being issued without stringent guidelines, and elsewhere the time and cost to obtain a water right for a community water supply system has discouraged their use. This has made exempt wells the default choice of supplying water to homes in subdivisions.

That’s created two problems; one of water quality and one of water quantity. First, just as a home needs water, it needs a place to dispose of the used water; it needs both a well and a septic system. On a large lot, this isn’t a problem because there is room to separate them. On a small lot it is, because when the septic system is too close to the well, the well gets contaminated. And if neighboring wells are too close to a septic system, those wells get contaminated.

Second, because subdivisions of hundreds of homes are becoming commonplace, the combined use of water from 100 exempt wells results in a significant amount of water taken from the water supply. This, of course, is exactly what is not supposed to happen in closed basins.

The dilemma is that our current laws make the use of good water management practices difficult to implement, and the use of less desirable practices easy. Something has to give, and it won’t be the amount of water.

These are two major problems facing water use in Montana. The solutions are obvious, but not easy or simple to implement. Developers, who know an economic opportunity when they see one, want to continue to take advantage of the growth in population while the time is right, and often view Montana’s water laws as easier and more cost effective to circumvent than to comply with. If the water laws are not changed this will mean an ever increasing use of exempt wells. Because of that increase, senior water rights holders worry that the cumulative impact of exempt wells in subdivisions will diminish the water supply, and homeowners simply want clean water.

Often in the midst of change we try to prevent the inevitable from happening instead of looking at ways of adjusting to it. Resisting change requires more effort, time, and money than dealing with it, and eventually makes adapting to change more difficult when it is finally becomes unavoidable. If there is a short term benefit to a particular sector, there will be a long term loss to others. We know that we can solve these difficult issues, but not without some sacrifice and a lot of cooperation from all involved. Today is a good time to start; tomorrow’s not.


Jim Elliott
Phone: 406-444-1556
Mail: State Senate Helena, MT 59620