Mar 15 2013
A water rights case decided in late February 2013 in the Montana Supreme Court is drawing heavy attention from a range of resource interests.
The court decided against Bostwick Properties, Inc., which in December 2006 filed for a use permit for a subdivision called Lazy J South along Highway 191, not far from Belgrade.
The water would come from the Gallatin River, which under Montana law is a “closed water basin,” so that no new surface rights can be granted and groundwater rights are strictly limited.
In his opinion, Justice Brian Morris summarized: “Bostwick Properties, Inc. sought a water use permit from the Montana Department of Natural Resources and Conservation (DNRC). DNRC denied the water use permit. Bostwick petitioned for review by the District Court. The District Court agreed with DNRC that Bostwick had failed to prove no net depletion of surface water and lack of adverse effect, as required by § 85-2-360, MCA, and therefore Bostwick was required to mitigate its water usage in order to receive a water use permit. The District Court further determined, however, that Bostwick had submitted an adequate mitigation proposal, and, therefore, DNRC improperly had denied Bostwick’s permit application. The District Court further noted that DNRC had exhibited bias against Bostwick. The District Court separately affirmed each of DNRC’s findings, and so determined that any bias on the part of DNRC caused no prejudice to Bostwick. Bostwick appeals, DNRC cross-appeals, and we affirm.”
The closed basin aspect was significant in the decision:
“In order to receive a groundwater permit, Bostwick first had to provide a hydrogeologic assessment to determine whether its proposed groundwater usage would result in a net depletion of surface water. Section 85-2-360, MCA. Bostwick would have to mitigate its water usage if Bostwick’s proposed pumping of groundwater would result in a net depletion of surface water and adversely affect senior appropriators. Section 85-2-362, Bostwick offered alternatives to demonstrate that its groundwater use would not result in a net depletion of the Gallatin River surface water, or would not cause an adverse effect.
“Bostwick first proposed that its Pave and Infiltrate Plan would offset all proposed consumption and would result in no net depletion of surface water. Bostwick next proposed that no net depletion would occur because the hydrological connection between the aquifer and the surface water was too attenuated and any potential adverse effect was unknown. Bostwick argued that the amount of water that it sought was too small to result in an adverse effect. Bostwick also suggested that DNRC could terminate Bostwick’s water rights if Bostwick’s de minimus water usage actually harmed senior rights holders. Bostwick finally proposed mitigation in the form of purchasing Water Right No. 41H 226700, in the event that Bostwick failed to demonstrate no net depletion or lack of adverse effect.
“DNRC determined that Bostwick’s water use would result in a net depletion of surface water, and that Bostwick had failed to demonstrate lack of adverse effect. This determination required Bostwick to mitigate its proposed water use. DNRC further determined that Bostwick’s proposed mitigation, purchasing Water Right No. 41H 226700, was inadequate because the mitigation would provide only irrigation season water and would provide no non-irrigation season water. DNRC’s determinations that Bostwick had failed to demonstrate no net decrease and had failed to demonstrate a lack of adverse effect for non-irrigation season water required Bostwick to mitigate non-irrigation season water loss as well.”