New home construction is beginning to recover after the recession, reigniting the question of whether subdivision developers in Montana should be allowed to build homes that use water wells without water-right permits.

Gov. Steve Bullock’s answer appears to be “Not exactly,” based on amendments he sent to the Legislature this week.

Senate Bill 19, which sought to answer that question with “Yes,” struggled through the Legislature and landed on the governor’s desk April 5.

The bill specifies that only subdivision wells that are piped together would require a water-right permit.

Currently, any well that pumps less than 35 gallons per minute is exempt.

Water rights holders oppose that definition, saying that subdivisions with hundreds of unconnected wells could continue to suck water out of aquifers without a permit.

The water rights system was developed on a first-come, first-served basis that allows senior water users without enough water to require junior users to stop using water during drought conditions.

As it stands, water rights owners can’t ask subdivisions to reduce their water use.

Association of Gallatin Agricultural Irrigators spokeswoman Krista Lee Evans likes to use the illustration of three adjacent 90-acre pieces of property: a farmer cultivates the first, a 90-unit subdivision with unconnected wells sits on the second, and another 90-unit subdivision with connected wells is on the third.

All three draw the same amount of water. Under SB 19, the first and third properties must have water permits, but the second doesn’t.

“We’re not against isolated exempt wells. But these three examples use the same amount of water. It’s a matter of fairness,” Evans said.

Evans said a water right is a property right, and large numbers of exempt wells can affect a water right.

Some agricultural water right holders who live close to large subdivisions near Billings have argued the issue to court, which prompted this bill.

In addition to agriculture, municipalities and hydropower groups must possess water right permits.

Real-estate lobbyists say those opposing SB 19 are anti-growth and oppose private property rights.

Montana Association of Realtors’ spokeswoman Abigail St. Lawrence said there’s no evidence to show exempt wells cause water shortages.

Evans and John Youngberg of the Montana Farm Bureau say they don’t oppose people developing their land into subdivisions but say those people should have to play by the same water rules as farmers and ranchers.

Bullock’s amendment would allow one exempt well for every 40 acres in closed river basins where the state has found water to be over-allotted. People can have as many wells as they want on 40 acres but only one would be exempt; the others would need a permit.

“I am cognizant of the impacts of SB 19 on other uses, in particular land development,” Bullock wrote. “But on the balance, SB 19 tips too far away from senior water rights and prior appropriations.”

Most of Montana’s closed basins are in the southwestern part of the state, including the Gallatin basin.

“We support the amendment – it puts us on a level playing field,” Youngberg said.

On Thursday, the Senate voted to concur with the amendment 33-17. If the House does the same, Bullock will sign the bill. Otherwise, Youngberg believes the governor will veto it.

If it dies, the Department of Natural Resources and Conservation will begin a rule-making procedure to write its own definition.

Laura Lundquist can be reached at 582-2638 or llundquist@dailychronicle.com.

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