Small Groundwater Uses – Exempt Wells Today
Do you have a water right for all of your water uses, especially groundwater use?
2015 Winterby Kerri Strasheim
DNRC
Do you know where your water comes from? Do you know how much water you use? Do you have enough water available? And, the focus of this article – do you have a water right for all of your water uses, especially groundwater uses? The DNRC (Department of Natural Resources and Conservation) receives numerous calls from landowners that do not know the answers to these questions.
Montana law currently allows citizens to develop small uses of groundwater, including by a well, developed spring, or a groundwater pit, without having to go through the water right permitting process. The law currently exempts appropriations of 35 gallons per minute [GPM] or less and not exceeding 10 acre-feet [AF] a year from the permitting process. Two or more groundwater appropriations that are a combined appropriation cannot exceed 10 AF a year, with each appropriation using up to 35 GPM. Over the last 10 years, both the amounts (35 GPM up to 10 AF per year) and the definition of a combined appropriation have been subjects of controversy and debate, but most everyone agrees that having a small-use exemption from permitting is a necessary water management tool. For rural Montana, the small groundwater use exemption can still be used today to meet most needs, such as for domestic, lawn and garden, shop/barn, and livestock water. In all cases, citizens should file a notice of completion within 60 days of completing a water development to secure a water right. It is important to note that a well log does not qualify as a water right. This article is specifically focused on “exempt wells” completed on or after July 1, 1973.
Filing for a Water Right
The well driller finished the job and handed over a well log that says you are the proud new owner of a groundwater well, so what is left to do? You need to file with DNRC to get a water right certificate once you have put the water to use. Household, or domestic purpose, is by far the most common use for “exempt wells,” listed as a purpose on approximately three-quarters of groundwater certificates, followed by stock water on about one-third, and lawn and garden on about one-quarter of all certificates. These numbers add up to more than 100% because certificates can list more than one purpose. As stated above, no exempt well or combined appropriation of two or more exempt wells may exceed 10 AF of groundwater, with each appropriation using up to 35 GPM. DNRC will record the actual amount completed because water rights are defined and limited by the actual amount of water put to use. Therefore, a citizen needs to know how much water they have put to use. While DNRC provides guidelines for volumes (Table 1), DNRC recognizes that uses and amounts can vary. A citizen can assert a different volume amount than the DNRC guideline and if that assertion is reasonable, DNRC will record that volume on the water right. Since these uses are filed after the use has been completed, or perfected, a citizen may have a good idea of the actual amount of water used, which can vary significantly based on geographical location and water management practices.
As water managers and public servants, DNRC personnel will do their best to answer any questions regarding water rights, including these small groundwater filings. However, a water right filing is the responsibility of the landowner or water user. While a well driller will file your well log, a citizen needs to file for the water right on that well or any other groundwater development after putting the water to beneficial use (e.g., turning on the water to the home). The DNRC Form 602, “Notice of Completion of Groundwater Development,” should be filed within 60 days of putting the water to beneficial use. DNRC does recognize that some owners have not done this, and a form can be accepted any time after the water is put to use if the exemption requirements are met.
If a water right owner appropriates additional groundwater after filing a water right, an additional water right filing may be needed. For example, an owner originally filed on a house and a quarter acre of lawn and garden. Later, the same owner expanded the operation to include a shop, pasture grass irrigation of one acre, and 5 horses. These additional uses would need another water right filing, even if the new uses are from the same existing well.
Combined appropriations come into consideration when an owner develops multiple groundwater appropriations and the total water use approaches or exceeds 10 AF. If you are putting in a well on a lot that was created after October 17, 2014, then you may be limited to less than 10 AF based on the total combined appropriation of all the wells in your subdivision. Small acreage owners will want to pay attention to this in water planning, and DNRC recommends that citizens call the regional office for their area prior to putting any additional groundwater to use to determine whether a permit is needed.
Replacement Wells/Maintenance of Wells
Wells occasionally fail, for multiple reasons, and need to be replaced or deepened. DNRC has simplified this process for exempt well owners. If a well has been deepened, DNRC considers this maintenance, and the well owner only needs to send a letter to DNRC for the water right file showing the new well depth. For a replacement well, if it is in the same groundwater source (same aquifer), and if use is not increased in any way, and if the old well is abandoned per rule, then an owner can file a replacement well Form 634 after putting in the replacement well.
“Exempt Well” Challenges
The small groundwater exemption has been scrutinized for much of the last decade by legislative committees. Several stakeholder groups have expressed concern over subdivisions and other higher density uses of exempt wells and their cumulative effect of the groundwater withdrawals on surface water sources. To boil the argument down, in areas like the Gallatin Valley, senior irrigators with 1885 priority dates (earliest dates have top priority) routinely get cut off from using water in mid-summer, while new exempt wells are allowed to continue to provide water for lawns, homes, and businesses in the same area. While senior water rights are generally for surface water use and exempt wells are for small groundwater uses, the water is all connected.
One challenge has been in devising a combined appropriation definition that does not prioritize uses in any way, but that prevents some larger projects from avoiding permitting. While these projects can vary from irrigation of a large parcel using multiple wells to many developed ponds, subdivisions with multiple “exempt wells” have been at the core of the controversy. (See the Timeline of Events table on page 13 for a brief history.) Small uses of after July 1, 1973 are examined to determine whether they constitute a combined appropriation. Generally, if you plan on developing two or more small groundwater uses that total over 10 AF within a limited area (e.g., a 40-acre parcel) or if you are proposing a new subdivision, please give DNRC a call to ensure that you can still use the small groundwater filing process. DNRC also maintains a guidance document on its website: http://dnrc.mt.gov/divisions/water/water-rights/docs/external-ca-10-07-2015-final.pdf. For rural water users, having a couple of wells and/or springs that service a house or two, a barn or shop, some lawn/garden and livestock is still generally allowed under law, rule, and policy.