- Associated Press - Wednesday, May 18, 2016

HELENA, Mont. (AP) - Real estate businesses, building contractors and well drillers asked the Montana Supreme Court on Wednesday to reinstate regulations that opponents say allowed a flurry of dense residential subdivisions to spring up without regard to sensitive water basins.

The Montana Association of Realtors, Montana Building Industry Association and the Montana Well Drillers Association want the Supreme Court to overturn a judge’s 2014 ruling that struck down state regulations over which small water wells are exempt from permitting requirements.

The regulations, written in 1993, exempted multiple wells that use the same water source as long as they each draw less than 35 gallons per minute and are not physically connected. District Judge Jeffrey Sherlock ruled the regulations violated state law after a conservation group argued that they allowed subdivisions and other large users to deplete millions of gallons of water by drilling individual, unconnected wells for their developments without permits.

During oral arguments, Chief Justice Mike McGrath used the example of an 18-hole golf course that uses individual wells to irrigate each hole. Because they are not physically connected, no water-use permit would be required for that golf course under the regulations, he said.

“They’re combined to irrigate a golf course even though … the pipes aren’t tied together,” he said.

There are more than 121,000 wells across Montana that are exempt from permitting requirements, according to the state Department of Natural Resources and Conservation. Between 1991 and 2010, more than 26,000 of those wells were dug in closed basins, or areas where new wells are largely banned to protect the water and existing users. Before Sherlock struck down the rule, the department estimated there would be 67,000 exempt wells in closed basins by 2040.

Most of the closed basins are in western Montana, including Gallatin, Broadwater and Ravalli counties, where most of the state’s population growth has occurred in the last two decades, according to a study by Montana’s Water Policy Interim Committee.

The amount of water taken by those wells from 1993, when the regulations were put into effect, to 2010 amounted to 2,575 football fields under 10 feet of water, according to the Clark Fork Coalition, the lead plaintiff in the lawsuit.

The worry by senior water rights holders, such as ranchers, farmers and municipalities, is that the cumulative effects of all those developments can deplete ground water levels and surface water flows, according to the group.

Justice Mike Wheat questioned why developers shouldn’t analyze the overall effects of their new subdivisions on the water supply.

“I think the 80-pound gorilla here is not the guy who buys 5 acres out in Three Forks and wants to build a home and drill a well,” Wheat said. “We’re talking about developers who come in and buy large chunks of ground, they draw lines on paper and they start selling lots and have not done any kind of analysis of the impact.”

The wells are low-density and probably have little effect on the water sources, Abigail St. Lawrence, an attorney for the realtors’ and builders’ groups, told the high court.

“We could get rid of every exempt well in this state and I would posit to you that it would not be the panacea that I think some of the plaintiffs in this case believe it would be to their water wells,” St. Lawrence said.

The Department of Natural Resources and Conservation, which wrote the regulations in 1993 and was the original defendant in the case, did not join the appeal of Sherlock’s ruling.

“We defended our rule in court, and we lost in district court,” department spokesman John Grassy said.

The court did not make an immediate ruling.

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