As I’ve previously mentioned, Montana is challenged with the use of exempt wells to meet growing water demands. Recognizing this challenge, the Montana Water Project of Trout Unlimited has published a Water Policy Interim Committee briefing paper titled: Can Mitigation Water Banking Play a Role in Montana’s Exempt Well Management? The entire publication is available at this link.
To gain additional insight from this work and the role of water banking, I decided to interview the lead researcher on this project, Ada Montague. Ada is a law student at the University of Montana School of Law, with a background in land use planning, and spent the summer as an intern with the Montana Water Project of Trout Unlimited. Before getting started, I’d like to thank Trout Unlimited for their work in the Montana Water Market and thank Ada Montague for accepting this interview.
- Why was this project of interest to you?
I am fascinated by the way water dictates land use in the west. It seems to be one of the most pervasive elements of land use planning, implicating not only the development process, the concerns of existing land-users and water right holders, but also every one’s quality of life. Resolving the exempt well issue in Montana highlights these various concerns in a profound way. The extraction of groundwater and its potential to impact surface water rights is a serious legal concern, while controlling extractions through permitting will have potentially negative impacts on development. Left unchecked, the exempt well loophole in the state’s regulation of groundwater could lead to surface water draw-down, groundwater depletion, and even groundwater contamination. The resolution of these concerns is a tricky topic involving a wide variety of perspectives. The research done in the Water Policy Interim Committee briefing paper aims to add information about mitigation water banking to the efforts underway to resolve this issue.
- Establishing a scientifically sound connection between groundwater and surface water appears critical. Can mitigation banks be established without this preliminary science?
Based on what we’ve learned from Washington and Oregon in their efforts to establish mitigation banking, it will be difficult to create a water banking system that does not have a very clear scientific picture of the relationship between ground and surface water. In order to have confidence in the mitigation bank it is critical that water right holders and those purchasing credits know how the mitigation credits will offset new development impacts.
- The report addressed the lack of political support for the new mitigation rules in Washington. Exempt wells in Montana are also a polarizing topic? Would you expect similar backlash in MT?
It depends. The devil is in the details and it will be important for people involved in making decisions to be patient and well-informed. It would be a shame to jump to conclusions or overlook a potential solution only because certain aspects were not a success in a certain area. Every state and every watershed is different and should be looked at individually. That is not to say that lessons cannot be learned from other examples. In Kittitas, WA. the establishment of a mitigation banking system occurred due to a legislatively mandated close to all new groundwater appropriations. This engendered a negative perception by the community who felt the state was imposing a growth control measure. Regardless, the minimum flow rules for the Yakima River had to be honored legally, so the State’s hands were tied. In that case, the legislature voted unanimously to close the basin to further groundwater withdrawals because the science so clearly showed it was necessary. The political sour grapes afterward were therefore moot.
It will be critical for the discussion in Montana to be an open discourse where stakeholders are carried through together until the end. I think the need for a collaborative effort may be difficult in these times of political polarization, but it could also be an opportunity to change that trend and find ways to work together. Regardless, a solution will be necessary eventually.
- Of the other mitigation banks you researched, which do you feel has the best framework and why?
Similar to my answer above, there is no one best solution. Each of the mitigation banks researched has aspects that are successful and others that are not. Learning from each one will shed light on what may be possible in Montana. However, Montana has its own unique history, hydrogeology and statutes. It is important to critically look at other mitigation banking efforts underway and weigh them against the body of information available for Montana. Resources such as the Bureau of Mines and Geology groundwater/surface water study, the Legislature’s history of decision making on the topic of exempt wells, and the economic and environmental concerns in high growth areas will all provide useful, state-specific data for comparison. Mixing the efforts of other states with what is known and agreed upon in Montana could yield a workable solution. The briefing paper attempts to bring some of that information together for the Water Policy Interim Committee.
- Administrative water use changes are currently time consuming and expensive, how does water banking overcome these challenges?
I am not sure if the process of water use changes will be directly addressed by water banking. However, recent legislative activity has alleviated a part of the burden in order to better accommodate water banking. The 2011 Legislature made the process more accessible to a water banking application through HB 24, sponsored by Rep. McChesney. Through HB 24’s amendments to the Water Use Act, a water rights owner may change their purpose of use to marketing for a mitigation purpose for up to 20 years, without identifying the contracts for sale ahead of time.
- You recommend modifying a controlled groundwater area framework to create a mitigation water exchange? What does this process consist of and what are the potential roadblocks?
Montana’s statutes already provide for a way for the DNRC to take stock of water quality and quantity in specific geographical areas through the controlled groundwater statute, as defined in § 85-2-506(2)(c)(i). The DNRC is enable by this statue to create a boundary for a controlled ground water area within which a permit is required to appropriate groundwater. This provision could provide a mechanism to delineate areas of high growth where ground water withdrawals are affecting surface water rights and require a permit for new groundwater appropriations by 35 gpm wells. A statutory amendment to this provision could make mitigation credits an alternative to permitting, and thereby reduce the influx of permit applications originally anticipated by a change to the rule defining “combined appropriation.” Amendments may also be contemplated in order to decrease the cost to taxpayers of a DNRC designated controlled groundwater area, or legislatively create particular controlled groundwater areas. Whether this is the only option or even the best option has yet to be seen.
