montana mitigation water

The 2007 Montana Legislature created MCA § 85-2-360 Ground Water Appropriation in Closed Basins. This legislation was passed in response to a 2006 “Trout Unlimited” court case that confirmed groundwater and surface water connectivity. The statute requires water users in closed basins to mitigate net depletion of new groundwater use (over 35 gallons per minute and 10 acre feet per year) for permit applications.

The DNRC’s rules governing new groundwater development under this statute require the following: 1) a hydrogeologic study to determine net depletion, 2) augmentation of net depletion mitigation and aquifer recharge, if a net depletion does occur, and 3) an extensive mitigation plan with necessary permit and change applications filed with the DNRC.

Step 3) appears to represent the greatest challenge and the bottle neck to the emerging mitigation market. To date, not one single project has reached final authorization (see graph above). The hope is this process will become more efficient over time. Nevertheless, it is off to a slow start.