A coalition has filed a lawsuit against the state regarding its interpretation of a long-standing statute crucial for housing developers using “exempt wells” to access water for low-density residential areas outside public systems. The term “exempt wells” emerged from a 1973 Montana law permitting individuals to drill wells and withdraw up to 10 acre-feet of groundwater without proving no negative impact on neighboring water users.
The lawsuit reveals that around 141,000 wells have been drilled under this law, primarily serving as drinking water sources or for irrigation in residential areas. The plaintiffs, comprising six nonprofits and individual water users, argue that the Montana Department of Natural Resources and Conservation (DNRC) has overseen “unregulated groundwater development,” threatening established water rights and Montana’s water resources.
They urge the Lewis and Clark County District Court to halt the state’s ongoing authorization of exempt wells, which have been instrumental in enabling development on large rural properties. Data from Headwaters Economics shows that over half of Montana’s residential development from 2000 to 2021 occurred outside municipalities.
Reforming the exempt well statute has historically sparked intense debates, including a recent proposal that failed to progress due to significant opposition. Developers favor the current loophole for its expedited alternative to the prolonged state permitting process, arguing it aids in addressing Montana’s housing supply issues amid soaring housing costs.
Meanwhile, opponents claim the widespread use of exempt wells has led to unconstitutional water appropriations and environmental degradation, threatening water supplies. The Montana League of Cities and Towns, along with agricultural and environmental groups, is leading the lawsuit, seeking to revise permitting practices to uphold the 1972 Montana Constitution’s water rights.
In an email, Clark Fork Coalition legal director Andrew Gorder emphasized the need to conserve limited water resources, stating that “the cumulative impact of over one hundred thousand exempt groundwater wells can no longer be ignored.” The lawsuit, presenting four claims, stresses constitutional protections for senior water users and transparency in government operations.
The lawsuit highlights concerns over Montana’s legislative inertia, with nearly two decades of studies showing the consequences of exempt well development yet leading to no significant legal changes. Previous efforts, including the proposed Senate Bill 358, aimed to restrict new exempt wells in fast-growing areas but failed to pass, prompting the current legal action. Kelly Lynch of the Montana League of Cities and Towns expressed frustration over the bill’s failure, underscoring the necessity to address the pressing water management challenges.
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