You probably don’t know who Eloise Kendy is, but you should. She’s a hydro consultant up in Helena, Montana, now with the Nature Conservancy, who writes nifty little papers exploring the collision of hydrologic realities with political and policy dream worlds (if you can get it, see pages 14-20 of Issue #19 of The Water Report). I covered one of her papers last summer in this post.

For a while Eloise has been writing about how the state of Montana doesn’t think that groundwater and surface water are connected. Well, everybody knows that the two are usually so connected that they are inseparable, but the state of water policy in Montana deems them connected only if a groundwater withdrawal directly removes water from a stream. Your withdrawal creates a cone of depression that allows for less recharge of groundwater into surface water, but as long as the cone of depression doesn’t intersect with the stream and thus directly draw from the stream you aren’t considered to be depleting the surface water. (If you want the science on this, try here, especially this circular.)

This legal alternate reality arose when the state legislature defined groundwater in 1993 as water that “is not immediately or directly connected to surface water.” Immediate or directly connected is not a hydrologic term, which left it open to interpretation by the Montana Department of Natural Resources and Conservation (DNRC). According to Kendy et al. in the Water Report paper I linked above:

As documented by a series of departmental memos, DNRC determined that groundwater is “immediately or directly” connected to surface water only if groundwater pumping pulls surface water into the aquifer, or “induces surface water infiltration.” According to this nterpretation, even if a well captures groundwater that would otherwise discharge into a stream, such groundwater is not “immediately or directly” connected to surface water, and the permit application may be processed as a groundwater exception to the basin-closure.

In other words, when you pump groundwater you aren’t depleting surface water, even when your groundwater pumping is in reality indirectly drawing down streamflows. What this means is that Johnny-come-latelies who put in new groundwater wells can seriously impact people who hold senior rights on surface water without being subject to the time honored legal tradition of first-in-time, first-in-right. This is a serious problem in watersheds that are not fully appropriated, but is legally catastrophic in watersheds (like most important Montana rivers) that are.

The problem finally worked itself up to the Montana Supreme Court last
year and they made the shocking decision that, hey, surface water and groundwater really are connected. Go figure. The losers of that decision were actually ranchers with plans to install new wells, but the ruling has deep implications for housing developers, especially on the Gallatin River out of Bozeman.

Arising from the court decision, last month two bills were discussed in the MT state legislature to deal with the connectivity issue, covered amply in this article. One bill, promoted by Trout Unlimited and the DNRC

would require that anyone in a closed basin seeking a groundwater permit do a hydrologic study first, a step not currently necessary. If the study shows a new well would take water from senior surface-water rights holders, then the applicant must explain how that water would be replaced – a process known as augmentation.

The other bill, promoted by the Stockgrowers and Farm Bureau

would require that new groundwater users replace the water they use only when it has an immediate and harmful impact on senior water rights.

which gets us squarely back to the problem created by DNRC’s weird mid-1990’s interpretation of connectivity, and essentially tries to write into law the unreality that if groundwater withdrawals don’t lead immediately to surface water impacts, then there must be no impact at all.

Of course, hearing both bills simultaneously was a bit problematic:

The committee heard testimony for both bills simultaneously, as opponents for one were generally in favor of the other. But that procedure made for hours of confusion with landowners, scientists and attorneys sometimes forgetting to make clear which bill they favored, or if they opposed both.

And so it’s no wonder that in the depth of that kind of confusion these disputes can flare up:

The Stockgrowers and Farm Bureau bill, Frantz said, “maintains the legal fiction that groundwater withdrawals only affect surface water if water is induced directly from the stream.”

“I’m not really sure what we accomplish by maintaining that legal fiction,” she added.

But one of the next speakers, David Schmidt, a scientist with the consulting firm Water Rights Solutions Inc., said the Stockgrowers and Farm Bureau bill is more inline with accepted science.

All parties are arguing on the science, projecting that the science better supports one bill or the other. But curiously, which bill you “believe in” seems to square pretty well with whether you hold senior water rights or junior rights, which is a pretty damn good indication where the science lies.

Many landowners and farmers from the Gallatin Valley spoke in support of the DNRC bill.

Meanwhile upstart stakeholders (developers, for instance) aren’t so happy with the Trout Unlimited/DNRC bill.

The interesting question here is whether there is an excess of objectivity problem or not. The quote by David Schmidt (“more inline with accepted science”) seems to indicate that there is, even if Schmidt is far off-base. For even if Schmidt is flat-out wrong, he has access to the forum and thus access to talk about the science, which has suddenly become his science in this context. Fun stuff.