Planner warns DNRC review, court ruling limit water for many post-2014 lots; legislative fix needed

Nicole Brown, Broadwater County's Community Development Director, told the planning board on Nov. 10 that a court ruling and a follow-up Department of Natural Resources and Conservation (DNRC) review have narrowed how water rights are interpreted for many subdivisions created after 2014.

"As of 02/14/2024, when Judge McMahon made his ruling on the Upper Missouri Waterkeepers versus Broadwater County and DNRC, it stated that ... any parcel created in 2014 and on, they have 10 acre feet of water," Brown said. "No matter how many times you split it, you only have 10 acre feet of water."

Brown said DNRC performed a "look back" across several counties and identified eight subdivisions in the region with a total of roughly 300 lots that may be affected by the ruling. The finding means some lots created through later splits no longer carry separate 10-acre-foot allotments; instead, the original parent parcel retains the single 10-acre-foot allocation, which can limit future residential development on subdivided lots.

DNRC representatives at the meeting explained options for parties who believe they are affected, including a process to voluntarily reallocate portions of a certificate of water right. Brown summarized DNRC's guidance: the agency is largely complaint-driven and will investigate claims when stakeholders file complaints about unpermitted water use or insufficient certificates of water right. Brown cautioned that DNRC enforcement and any legislative solution could take time; she said a bill addressing the issue had been proposed previously but did not pass and that some fixes may require action by the legislature in 2027.

Board members at the meeting described homeowners' frustration and uncertainty about what the ruling means for their ability to use wells, how reallocations could affect property values, and how septic and other infrastructure limits interact with water availability. One member voiced concern about larger-scale surface water allocations being strained; another asked about long-term impacts to planning and county staffing.

Brown said Broadwater County officials attended the DNRC meeting with the county attorney and commissioners present and characterized the DNRC presentation as informative but blunt about the limitations of administrative remedies: a longer-term legislative solution would be required to "grandfather" prior expectations about per-lot water allocations.

The planning board did not adopt any new local rules at the meeting in response to the report but discussed that water availability will continue to affect subdivision approvals and the pace of development in the county.