Judge concludes that DNRC acted like a “misbehaving child” in win for senior water rights holders

On February 14, 2024, MSWD Attorneys Rob Farris-Olsen and Kim Wilson helped secure a landmark ruling to protect Montana’s senior water right holders. The case centers around a 41 lot subdivision east of Canyon Ferry Lake in Broadwater County. The proposed subdivision consisted of 442 acres with 39 residential lots and two commercial lots. The subdivision, as proposed, would have relied on five exempt wells – despite the fact that the basin is closed to new appropriations.

 In voiding the approval of the subdivision, the Judge issued an 85 page order taking issue with both the County’s approval process and with the Montana Department of Natural Resources and Conservation’s misapplication of the law. With regard to the County, the environmental assessment was “abjectly deficient” and failed to account for impacts to water quality and quantity, public safety and water. In reaching this conclusion the Court criticized the “Kafkaesque procedure” the county utilized for reviewing the application.

 The Judge similarly lambasted DNRC for its failure to understand its own regulation s and statutes. The Court explained that DNRC “blatantly ignores a recent Supreme Court holding, which the letter demonstrates that DNRC understands, to conclude that each of the four phases of one larger project are entitled to exempt wells. This is contrary to the administrative rule, statute, the rulings of this and the Montana Supreme Court, and perhaps most troubling, DNRC’s own restatement of law in the letters [to the project developer]. And that “it should give DNRC pause that citizens with seemingly no legal training appear to have a better grasp of the exempt well limits than DNRC, the agency charged with administering the Water Use Act.”

Based on these, and many other problems, the judge voided the approval of the subdivision and held that a phased subdivision is entitled to one exempt well – no more.

MSWD worked with Guy Alsentzer at Upper Missouri Waterkeeper and Graham Coppes at Ferguson and Coppes PLLC

A copy of the order is available here.