BOZEMAN - A court ruling that forced the state's chief water rights agency to grant a permit to a Gallatin County developer has some irrigators and others worried about the precedent it sets for water permitting across the state.
District Judge John C. Brown last month ordered that a planned subdivision near Big Sky be granted a water permit, in part because the state Department of Natural Resources and Conservation had taken too long to decide on the permit request.
The DNRC did eventually provide a decision on the permit, and was opposed to it.
Brown's ruling follows recent decisions by district judges in Helena that allowed several gravel pits in Gallatin County to receive permits despite not having undergone environmental assessments by the state Department of Environmental Quality.
"It's not dissimilar to the gravel pit issue," said John Tubbs, administrator of the water resources division at the DNRC. "But it's maybe a little worse (than the gravel pit permits) because we were going to deny and the judge told us to permit.
Tubbs and others worry similar rulings could strain available water and infringe on existing water rights holders.
The water permit case involved the Lazy J South subdivision being developed by Bostwick Properties. According to court records, Bostwick sought to drill a 1,300-foot well for a municipal water system at the subdivision.
The permit went to public notice in February 2007. The clock then began ticking for the DNRC to decide whether to grant the water permit, Brown said. State law requires that the agency issue a decision 180 days after an application goes to public comment.
That deadline passed with no final decision, court records said. But in December 2007, after Bostwick Properties sought a court order to force the permit approval, the DNRC denied it.
Tubbs said problems with the permit were numerous, but the most significant was that the developers could not prove their well wouldn't pull water from the Gallatin River and thus affect water users downstream.
However, Brown ruled that the DNRC wasn't allowed to opine on the merits of Bostwick's analysis after it had accepted the analysis for public comment and private parties had objected to it. He also determined that the agency was being inconsistent with how it analyzed the water basins around the Gallatin River.
But the most definitive factor, Brown said, was that the DNRC had run out of time. He cited decisions by District Judges Jeffrey Sherlock and Dorothy McCarter when forcing the DEQ to grant permits for several gravel pits in Gallatin County.
"The DNRC must act expeditiously, within the time required by law, and failure to do so results in the approval, as a matter of law, of the requested action," Brown wrote.
Dick Debernardis, a small water user on the Gallatin River, said he is concerned about the precedent set by the case.
"It's a ruling about water, and it was turned into a ruling about the law," Debernardis said. "I think water is as important as the law."
Sen. Gary Perry, R-Manhattan, who sits on the state Legislature's Water Policy Interim Committee, said he sees troubling similarities between the permitting cases involving gravel pits and water rights.
"We don't want to just take away DNRC's ability to issue an opinion, but our goal also is to protect citizens in that they have a right to a timely process," Perry said. "We're on the line. It's worrisome."