- Associated Press - Tuesday, September 23, 2014

HELENA, Mont. (AP) - An environmental organization and a group of ranchers asked a judge Tuesday to force the state to change a rule that allows residential subdivisions to drill multiple small, unconnected water wells without permits.

The years-old dispute centers on whether the developers of subdivisions and other large projects are using the small-well exemption to skirt the permitting process meant to protect water sources and the rights of other users.

“This case is about an exempt well loophole,” said Western Environmental Law Center attorney Laura King, who is representing the Clark Fork Coalition and the ranchers.

Permits aren’t required for wells that flow less than 35 gallons per minute, and there are more than 110,000 exempt wells in the state, according to court documents.

In the 1980s, the state regulations required permits for multiple wells used for a single purpose or project. Those regulations were rewritten in 1993, and they now require permits only for those small wells that are physically connected as part of a system.

That makes a difference when a large subdivision development goes up near a water source that is already heavily used. If each home drills its own well, the rules don’t require permits that would examine the cumulative effects of the additional use.

The subdivision’s developer should be required to obtain a permit in those instances, King argued. She asked District Judge Jeffrey Sherlock to either strike the rule or force the state Department of Natural Resources and Conservation to rewrite them.

The dispute ended up back in court after Montana Department of Natural Resources and Conservations officials backed out of a previous agreement to propose changes to the regulations. Agency attorney Kevin Peterson said it abandoned the plan after the Environmental Quality Commission, an oversight committee led by lawmakers, opposed the changes.

The regulations implement a state law that was meant to prevent farmers from overtaxing water supplies for their irrigation, Peterson said. Subdivisions were never mentioned or considered by lawmakers, though Peterson said developers’ misuse of the regulations “may be an unforecasted potential.”

But the regulations are meant to apply to the entire state, and subdivisions are only a small part of the landscape, he said.

Rewriting the state law to account for them is the Legislature’s job, he said.

Plus, the wells belong to the homeowners, not the subdivision developer, and they have a right to drill their small wells, Peterson said.

Sherlock did not make an immediate ruling Tuesday.

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