Exempt well loophole is a handout to developers

It would be an understatement to say our family was concerned when we received news of a major subdivision proposal on the eastern shore of Canyon Ferry. Horse Creek Hills, the name of the new trophy subdivision and commercial lots, would become our new neighbor, yet no information was provided on how its use of multiple exempt wells and septic systems would affect our family’s ranch or the water we depend upon.

As generational ranchers with water rights dating back to the 1860s, we found it extremely troubling that our local government and state agencies would rubber-stamp water use for a new subdivision without considering impacts on adjacent water uses, private property rights and agricultural operations. But, alas, they did, leaving us with no choice but to challenge our government’s failures in the courts. If we did not personally speak up to protect our way of life, our family’s livelihoods and the water resources we’ve relied upon for generations, apparently no one would.

It’s now been a year since Judge McMahon of the First Judicial District issued a landmark victory for senior water rights, property rights, agriculture and the water resources vital to our outdoors heritage. In his ruling, Judge McMahon made clear that the government must be accountable and use science to measure the impacts that new development could create for water resources and property rights. The burden falls on new water users and our government to identify potential harm to senior water rights and neighbors before decision-making, and to deny projects that simply don’t fit. 

We agree. The burden should be on new development to show why it should be allowed and how it will affect its neighbors and the surrounding environment, not to presume it must be allowed, no matter the cost.

Despite our lawsuit’s effect of protecting ours and our neighbors’ rights to informed, science-based decision-making in defending our water resources, our Montana agencies and legislators are missing the forest for the trees and failing to address the core issue that exempt wells for sprawl development are not an acceptable way to do business or be a good neighbor. 

A bill draft coming out of the Comprehensive Water Review Stakeholder Group is being touted as a compromise for all, when in practice, the proposed legislation acts as a handout to developers by expanding the exempt well loophole — by more than double in most areas of the state. While some high-growth areas are proposed as off-limits for more exempt wells, the devil is in the details, and new loopholes could again swallow the rule of first in time, first in right. 

Our family is shocked and dismayed at the idea that our Legislature would accept a compromise that puts water supplies for more subdivisions above our property rights, agricultural legacy and outdoors heritage. 

Rather than taking the Horse Creek Hills ruling as a warning that the government needs to do better and protect its citizens’ interests, the Legislature appears to be actively working to undermine our victory, all for the benefit of developers over most Montanans. Once again, ranching, agriculture and water resources lose while deep-pocketed developers write their own ticket with no public recourse.

Judge McMahon stated it best. 

“The economic impetus to develop land is overwhelming and relentless. If there is going to be any check on uncontrolled development of Montana’s limited water resources it will have to come from DNRC which is statutorily charged with fulfilling Montanans’ constitutional right to ‘control, and regulation of water rights, … a duty DNRC has manifestly avoided or undermined for over a decade to the detriment of our waters, environment, and senior water rights holders whose protection is the ‘core purpose’ of the Water Rights Act.” 

DNRC has “allowed the (ongoing) appropriation of millions if not billions of gallons of water that under our laws should have been left in aquifers for the benefit of senior water rights holders.”

We need common sense land-use rules that stand up for the Montana way of life and our property rights, not new shortcuts that prioritize exceptions and loopholes. Exempt wells are a raw deal for Montana’s water, wildlife, and our agricultural communities, and we urge our legislators to stop expanding their use. 

Charles and Carole Plymale are ranchers in Townsend.