Small Groundwater Uses –
“Exempt Wells” Today
Do you have a water right for all of your water uses, especially groundwater use?
by Kerri Strasheim Regional Manager – Bozeman, Montana Department of Natural Resources and Conservation
Montana law currently allows citizens to develop small
uses of groundwater, including by a well, developed spring,
or a groundwater pit, without having to go through the
water right permitting process. The law currently exempts
appropriations of 35 gallons per minute [GPM] or less and
not exceeding 10 acre-feet [AF] a year from the permitting
process. Two or more groundwater appropriations that
are a combined appropriation cannot exceed 10 AF a year,
with each appropriation using up to 35 GPM. Over the last
10 years, both the amounts (35 GPM up to 10 AF per year)
and the definition of a combined appropriation have been
subjects of controversy and debate, but most everyone
agrees that having a small-use exemption from permitting is
a necessary water management tool. For rural Montana, the
small groundwater use exemption can still be used today to
10
| big sky small acres
meet most needs, such as for domestic, lawn and garden,
shop/barn, and livestock water. In all cases, citizens should
file a notice of completion within 60 days of completing a
water development to secure a water right. It is important to
note that a well log does not qualify as a water right. This
article is specifically focused on “exempt wells” completed
on or after July 1, 1973.
Filing for a Water Right
The well driller finished the job and handed over a well log
that says you are the proud new owner of a groundwater
well, so what is left to do? You need to file with DNRC to
get a water right certificate once you have put the water
to use. Household, or domestic purpose, is by far the most
common use for “exempt wells,” listed as a purpose on
approximately three-quarters of groundwater certificates,
followed by stock water on about one-third, and lawn
and garden on about one-quarter of all certificates. These
numbers add up to more than 100% because certificates
can list more than one purpose. As stated above, no exempt
well or combined appropriation of two or more exempt wells
may exceed 10 AF of groundwater, with each appropriation
using up to 35 GPM. DNRC will record the actual amount
completed because water rights are defined and limited by
the actual amount of water put to use. Therefore, a citizen
needs to know how much water they have put to use. While
DNRC provides guidelines for volumes (Table 1), DNRC
recognizes that uses and amounts can vary. A citizen can
assert a different volume amount than the DNRC guideline
and if that assertion is reasonable, DNRC will record that
PHOTO BY KERRI STRASHEIM
Do you know where your water comes from? Do you
know how much water you use? Do you have enough
water available? And, the focus of this article – do you
have a water right for all of your water uses, especially
groundwater uses? The DNRC (Department of Natural
Resources and Conservation) receives numerous calls
from landowners that do not know the answers to these
questions.
volume on the water right. Since these uses are filed after
the use has been completed, or perfected, a citizen may have
a good idea of the actual amount of water used, which can
vary significantly based on geographical location and water
management practices.
As water managers and public servants, DNRC personnel
will do their best to answer any questions regarding water
rights, including these small groundwater filings. However,
a water right filing is the responsibility of the landowner
or water user. While a well driller will file your well log, a
citizen needs to file for the water right on that well or any
other groundwater development after putting the water to
beneficial use (e.g., turning on the water to the home). The
DNRC Form 602, “Notice of Completion of Groundwater
Development,” should be filed within 60 days of putting the
water to beneficial use. DNRC does recognize that some
owners have not done this, and a form can be accepted
any time after the water is put to use if the exemption
requirements are met.
If a water right owner appropriates additional groundwater
after filing a water right, an additional water right filing may
be needed. For example, an owner originally filed on a house
and a quarter acre of lawn and garden. Later, the same
owner expanded the operation to include a shop, pasture
grass irrigation of one acre, and 5 horses. These additional
uses would need another water right filing, even if the new
uses are from the same existing well.
PHOTO COURTESY OF CLIPART.COM
Combined appropriations come into consideration when an
owner develops multiple groundwater appropriations and
the total water use approaches or exceeds 10 AF. If you are
putting in a well on a lot that was created after October
TABLE 1. Amounts of water commonly used by rural Montana landowners.
Use
Annual Volume (Acre Feet)
Domestic
1
Lawn and Garden
2.5 per acre
Livestock
0.17 per Animal Unit (AU)
Commercial/Shop
1
Pond
1 capacity fill + evaporation
Note: You can visualize an acre foot of water as a football field without
end zones (an acre) covered in 1 foot of water.
17, 2014, then you may be limited to less than 10 AF based
on the total combined appropriation of all the wells in your
subdivision. Small acreage owners will want to pay attention
to this in water planning, and DNRC recommends that
citizens call the regional office for their area prior to putting
any additional groundwater to use to determine whether a
permit is needed.
Replacement Wells/Maintenance of Wells
Wells occasionally fail, for multiple reasons, and need to be
replaced or deepened. DNRC has simplified this process for
exempt well owners. If a well has been deepened, DNRC
considers this maintenance, and the well owner only needs
to send a letter to DNRC for the water right file showing
the new well depth. For a replacement well, if it is in the
same groundwater source (same aquifer), and if use is not
increased in any way, and if the old well is abandoned per
rule, then an owner can file a replacement well Form 634
after putting in the replacement well.
“Exempt Well” Challenges
The small groundwater exemption has been scrutinized
for much of the last decade by legislative committees.
Several stakeholder groups have expressed concern over
subdivisions and other higher density uses of exempt wells
and their cumulative effect of the groundwater withdrawals
on surface water sources. To boil the argument down, in
areas like the Gallatin Valley, senior irrigators with 1885
priority dates (earliest dates have top priority) routinely get
cut off from using water in mid-summer, while new exempt
wells are allowed to continue to provide water for lawns,
homes, and businesses in the same area. While senior water
rights are generally for surface water use and exempt wells
are for small groundwater uses, the water is all connected.
One challenge has been in devising a combined appropriation
definition that does not prioritize uses in any way, but that
prevents some larger projects from avoiding permitting.
While these projects can vary from irrigation of a large parcel
using multiple wells to many developed ponds, subdivisions
with multiple “exempt wells” have been at the core of the
controversy. (See the Timeline of Events table on page 13
for a brief history.) Small uses of groundwater developed
continued on page 13
w i n t e r 2 0 1 5 |
11