In early April, the Department of Natural Resources and Conservation issued new guidance on exempt wells. It appears that it will likely have more effect on some regions than others.
The original guidance indicated that if you are subdividing a parcel into lots that are less than 20 acres each — thus needing subdivision review — you were limited to one (1) appropriation of 10 acre feet per year per 40 acres. This could be accomplished with multiple wells using a total of 10 acre feet.
If a parcel is OVER 20 acres, it does not go through review. However, the original guidance indicated that if there are two (2) or more wells located on the parcel, if they are not located at least 1320 feet apart, they too would be considered a combined appropriation. Thus, they would be limited to a total of 10 acre feet between them.
Some regional DNRC offices were allowing the 10 acre feet for each subset of wells that were located more than 1320 feet from one another. Thus, exceeding the 10 acre feet per 40 acre limit. Because that was not DNRC’s original intent, this new language clarifies this.
If you are in a region that was allowing this, there will be a change on the ground of how these are implemented.
The new guidelines do make two substantive changes from the original guidelines.
(1) These guidelines also apply to family transfers and court ordered divisions of land. Although we had understood the first to be included, the second may end up being problematic. MWWDA will continue to look into this.
(2) The definition of “physically manifold” includes storage that shares multiple ground water developments. This has been in the definition throughout all of the many changes, but they are clarifying.
Finally, they added some language stating that for a regional office to allow a deviation from the standard of .28 AF/household/year, that the applicant must provide calculations that justify the variance.
In any case, a driller should have the DNRC approved map from the developer to clarify where each well is to be located and what pumping limits are required.
Below is the announcement from DNRC and the new guidance.
Montana DNRC Water Resources Division
Combined Appropriation Guidance: Clarification
DNRC has clarified the combined appropriation guidance, and we will no longer allow any spacing to be considered a new project within one subdivision (specific to lots less than 20 acres). Any DNRC written reviews that had the spacing allowance in a subdivision previously will stand.
Combined appropriation is two or more groundwater developments that do not exceed a maximum flow rate of 35 gallons per minute per development or a combined annual volume of 10-acre feet (§ 85-2-306 (3), MCA). Combined appropriation specifically applies to groundwater developments that meet the exception to the water right permitting process in statute. There is a history of controversy surrounding the definition of Combined Appropriation, leading to a First Judicial Court ruling in 2014, which reinstated DNRC’s 1987 rule defining a Combined Appropriation. This rule defines a Combined Appropriation to be:
An appropriation of water from the same source aquifer by means of two or more groundwater developments, the purpose of which, in the department’s judgment, could have been accomplished by a single appropriation. Groundwater developments need not be physically connected nor have a common distribution system to be considered a ‘combined appropriation.’ They can be separate developed springs or wells to separate parts of a project or development. Such wells and springs need not be developed simultaneously. They can be developed gradually or in increments. The amount of water appropriated from the entire project or development from these groundwater developments in the same source aquifer is the ‘combined appropriation.’
Following the court ruling, the Department created a guidance document that explains the judgement on what could be accomplished by a single appropriation. Guidance provided by the Central Office on Combined Appropriation and implementation in regional offices was inconsistent for subdivision reviews submitted under the DNRC/Department of Environmental Quality Memorandum of Understanding. Considering this, the Department is updating the guidance to be clearer on what constitutes a Combined Appropriation. The updated guidance does not change what the Department considers to be a Combined Appropriation, it instead ensures clarity in what that determination is. To be transparent on the clarified guidance, the Department is reaching out to stakeholders that have an interest in property development.
The Water Resources Division has embarked on a Comprehensive Water Review to meet current and future water needs. As part of the Comprehensive Water Review a working group was formed to address changes, mitigation, and permit exceptions. It is anticipated that this working group will develop recommendations which will impact the Combined Appropriation guidance. Recommendations from the working group are not expected for six to twelve months. In the interim, DNRC needs to ensure that guidance for Combined Appropriation is consistently applied throughout the state. Any future recommendation from the Comprehensive Water Review will be incorporated at a future date.
Relating to the CSKT Compact:
The following is for reference only and is not intended to be legal advice.
When working in an area that will be or is affected by the CSKT Compact, please be aware that:
(1) You must get permission from the CSKT Water Board PRIOR to drilling
(2) They are honoring/requiring the MT Driller’s license and well standards (ARM)
(3) They have different limits on water usage (outlined in attached document).
Additionally, the portions of the 146-page compact document that we feel were pertinent to drilling on the CSKT lands is included in this review — click here to view PDF.
This is the link to the full text of SB 262 from 2015, which is the compact passed by the legislature — https://leg.mt.gov/bills/2015/billpdf/SB0262.pdf. It is 146 pages long and is posted for reference.
This is the link to the CSKT Tribal water right office — Tribal Water Right Registration Office — https://csktribes.org/index.php/water-rights/tribal-water-right-registration-office. It currently has a phone number and a Q&A section. It is provided for people to call in order to get the required permission to drill.
Finally, there is information in the following link to a document that served as a Q&A during the 2015 legislative session when the compact was being debated. It has information about why the wells have different limits than the rest of the state — http://dnrc.mt.gov/divisions/water/water-compact-implementation-program/docs/cskt/8_legislator_faqs.pdf.