The windmill, using wind to pump water from the ground, is an iconic image of the American west. But the question of the cumulative effect of a bunch of little wells – these days often out behind tract homes powered by electricity rather than the wind – has become one of the central arguments in western water law and policy.
Here in New Mexico, we’ve long recognized in the law the connection between surface and ground water – the idea groundwater pumping eventually creates a great sucking in the surface water supply. But our state court of appeals recently ruled that domestic wells are OK, that regulations essentially exempting them from water rights regimes did not violate our state constitution’s doctrine of prior appropriation.
Montana was late to legally recognize the groundwater-surface water connection, and as Laura Lundquist writes, the domestic well exemption is a huge issue:
It wasn’t until 2006 that Montana acknowledged the connection between surface and groundwater. The state Supreme Court ruled in Montana Trout Unlimited v. DNRC that the state Department of Natural Resources and Conservation was wrong to permit new large wells in a river basin where people were already banned from making new surface water claims .
The ruling acknowledged for the first time in Montana that taking water from below the ground is the same as taking it from above.
The ruling applies to closed basins: areas where the state must confirm the total amount of water already claimed before the state Legislature will allow any new claims to be filed. Such is the case in the Bitterroot River basin where no new surface rights are available and getting a groundwater right isn’t impossible but now it is a lot more difficult.
But small domestic wells are exempt from water rights requirements so new small wells are allowed even in closed basins where water is at a premium. Developers take advantage of that.