Pretty much every Montana Legislature, the mining industry comes in asking for special gifts. In recent years mining interests pleaded for weaker water quality standards in drinking water for pollutants such as arsenic and nitrates, and they got them. They asked for weaker environmental reviews. They got those, too. They demanded lower reclamation standards and loopholes for reclamation bonding. And the Legislature obliged. Lawmakers granted these gifts even while Montana taxpayers were paying millions to clean up the industry’s abandoned messes, including ones caused by modern mining projects.
This session the gift the industry wants is the ability to trump water rights. All water rights – including very old, established rights for agricultural irrigation, hydropower, municipalities and fishery protection. The Senate and House have obliged by passing a measure approving this tremendous gift. Water rights are property rights, so in effect, the Legislature is giving away other people’s property.
It is now up to Gov. Steve Bullock to tell the mining industry it can’t diminish the property of others. He should veto Senate Bill 347.
Sponsored by Libby Republican Sen. Chas Vincent, SB347 ensures that the effects of massive groundwater pumping or diversions for mines will not be reviewed under the “nondegradation policy” of Montana’s Water Quality Act. The standards under this policy aim to protect Montana’s highest-quality waters. One standard says that if diversions or groundwater pumping reduce streamflows by more than 15 percent, or 10 percent when streams are lowest, it triggers a review of the effects, possibly requiring alternatives or mitigation. But the industry doesn’t want to comply, so it’s asking for a special deal.
Massive pumping of groundwater for keeping underground mines dry can deplete connected surface flows in streams. The nondegradation standards are the only legal backstop existing water right holders have to ensure pumping doesn’t diminish their rights to surface water. Because pumping or diverting from streams to keep mining operations dry doesn’t require water rights, affected users with water rights, such as irrigators and cities, can’t file objections under Montana’s water use law claiming harm.
So if you irrigate in, say, one of the areas that could be facing future mining that requires massive groundwater pumping, such as near Sheep Creek and the Smith River, or along Fish Creek in the Jefferson River watershed, or around Moose Creek in the Big Hole drainage, you could lose water you have a legal right to. If you run a hydroelectric dam on the lower Clark Fork downstream of two huge underground mines in the Cabinet Mountains that will pump millions of gallons of water a day, you might have less water to run your turbines, water you have a legal right to. Or, if you’re the city of Butte and want adequate water in Basin Creek Reservoir, a municipal drinking water source, be concerned. Groundwater pumping for a mining operation upstream in the Highland Mountains could diminish your right to surface flows. Finally, if you think instream flow rights Montana Fish, Wildlife and Parks has on the Blackfoot, Big Hole or Smith rivers will protect these multi-million-dollar recreational gems, think again. SB347 allows mining to trump FWP’s fishery-based water rights.
SB347 passed the Senate by a wide margin because the bill was supposed to be fixed in the House. But it wasn’t. Vincent did add an amendment that purports to protect fish. But industry lobbyists ensured the language is vague and difficult to enforce, practically guaranteeing future lawsuits.
Everyone who uses water beneficially in Montana must have a valid water right. The priority of these rights follows our first in time, first in right system. Newer rights cannot trump old rights. Interests with senior rights can file objections with Montana’s water use agency or state water court if a new use will harm theirs. That’s our system. But under SB347, the mining industry can ignore this. Bullock should ensure mining doesn’t harm existing water rights and veto SB347.
Bruce Farling is executive director of Montana Trout Unlimited, which represents 3,500 conservation-minded anglers and water users across the state.