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Memo on Draft Administrative Rules for Exempt Wells


Posted Date: 
August 26, 2013
Contact: 
Tara DePuy, MACo JPIA Land Use Attorney

Draft Rules (Pages 34-36)

The Montana Department of Natural Resources and Conservation has noticed a public hearing on its proposed amendment and adoption of a definition of “combined appropriation” as it relates to exempt wells and exempt develo

ped springs.  As the 2013 Legislature’s definition of “combined appropriation” was vetoed by Governor Bullock, DNRC is now required, pursuant to its settlement of a lawsuit with the Clark Fork Coalition, to administratively define “combined appropriation”.  The hearing on the new rule is on September 19, 2013 at 10:00 a.m. in Helena in the Fred Buck Conference Room (bottom floor), Water Resources building, 1424 Ninth Avenue, Helena, Montana.

The proposed rule amends the current definition of “combined appropriation” in ARM 36.12.101(13).   Exempt wells or exempt developed springs  can only have a maximum appropriation of 35 gallons a minute or less, not to exceed 10 acre-feet a year, except that a combined appropriation from the same source from two or more wells or developed springs exceeding this limitation requires a full blown water right permit.

The proposed definition of combined appropriation only applies if you have two or more wells or developed springs from the same source aquifer.  If those two wells or developed springs are physically connected into a single system and the total volume exceeds ten-acre feet per year, they cannot be exempt wells or exempt developed springs and a water right permit is necessary.  If those two wells or developed springs are physically connected into a single system and the total volume does not exceed ten-acre feet per year, then two exempt wells or exempt developed springs may be used.

The proposed rule states that exempt wells or exempt developed springs cannot be located within 1,320 feet of another exempt well or exempt developed springs on the same tract of record.  Forty acres has a length and width of 1,320 feet.  If there are more than one exempt well or exempt developed spring located within 1,320 feet of each other on the same tract of record they become a combined appropriation and are subject to the ten-acre feet per year limitation.  This means one exempt well or exempt developed spring per 40 acres per tract of record if the exempt well or exempt developed spring diverts ten-acre feet or more per year.

The proposed rule limits subdivisions, being a tract of land less than 160 acres, if the entire subdivision is 40 acres or less, to ten acre-feet per year.  The ten acre-feet per year could be supplied by more than one exempt well or exempt developed spring.  If the subdivision is more than 40 acres, an additional 0.25 acre-foot per year is allowed per additional acre over 40 acres.  So if the subdivision was 60 acres, the subdivision would be allowed from exempt wells or exempt developed springs ten acre-feet per year for the 40 acres and an additional five acre-feet per year for the additional 20 acres for a total of fifteen acre-feet per year.

The above limits for subdivisions apply to as well to numerous exemptions from subdivision review, including court ordered divisions; mortgage tracts; oil, gas, minerals or water severed from surface ownership; cemetery lots; reservations of life estates; lease or rental for farming and agricultural purposes; rights-of-way or utility sites; common boundary relocations; family transfers; agriculture covenants; and aggregations.

Both the limits on a subdivision or exemption in the proposed rule do not limit the definition of combined appropriation to future subdivisions or exemptions.   The proposed rule does specifically state that the limitations on subdivisions include any subsequent subdivision or division of land.  A subdivision or division of land may seek pre-approval from DNRC to determine if the combined appropriations for all exempt wells or exempt developed springs serving the subdivision or division of land meet the requirements of the new definition of combined appropriation.

In regards to subdivisions, DNRC Water Resources Information calculates that a 10 lot subdivision with an average of 2.5 persons per household and one-quarter acre of irrigated lawn and garden per household would require 9 acre-feet per year in the Billings area and 8 acre-feet per year in the Bozeman area.  A 6 lot subdivision under the same parameters with a half an acre of irrigated lawn and garden would require 9.8 acre feet per year in the Billings area and 9.2 acre-feet per year in the Bozeman area.  These calculations do not account for water for subdivision parklands or fire suppression features.

Written data, views or arguments can be submitted orally or in writing at the hearing or can be submitted in writing to Millie Heffner, DNRC, PO Box 201601, 2424 Ninth Avenue, Helena, MT  59620; fax (406) 444-0533; or e-mail mheffner@mt.gov and must be received no later than 5:00 p.m. on September 19, 2013.

Tara DePuy | 406.223.1803 | attorney@riverworks.net