Debuff v. Mont. Dep't of Natural Res. & Conservation
| Decision Date | 16 March 2021 |
| Docket Number | DA 20-0071 |
| Citation | 2021 MT 68,403 Mont. 403,482 P.3d 1183 |
| Parties | Daniel G. DEBUFF and Sandra L. DeBuff, Petitioners and Appellees, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, an agency of the State of Montana, Respondent and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Barbara L. Chillcott, Brian C. Bramblett, Special Assistant Attorneys General, Montana Department of Natural Resources and Conservation, Helena, Montana
For Appellees: John E. Bloomquist, Bloomquist Law Firm, P.C., Helena, Montana
¶1 The Montana Department of Natural Resources and Conservation (DNRC or the Department) appeals from the Order on Petition for Judicial Review entered by the Montana Water Court, reversing DNRC's Final Order and remanding the matter to DNRC for further proceedings. We state the contested issues as follows:
We reverse in part and affirm in part, and conclude that the Water Court correctly remanded the matter to DNRC for further proceedings.
¶2 The real property involved herein is owned by Daniel and Sandra DeBuff (DeBuff). It is an agricultural property located south of the Big Snowy Mountains within hydrologic Basin 40A, situated in Section 35, Township 10 North, Range 17 East, Wheatland County. Topographically, the property generally slopes from north to south. There are several sets of springs on the DeBuff property. Living Springs flows into a wetland complex, and does not connect to any other surface water feature, save for the occasional storm or runoff event. There are four other springs, three of which are on DeBuff property and a fourth on a neighboring parcel, which are collectively referred to informally as the "southern springs." South of the southern springs is Elk Creek, which is subject to the water rights of several third parties.
¶3 DeBuff proposes to divert groundwater by means of four wells on their property and a groundwater pit, with the wells discharging water into the pit to create a water storage unit with an approximate capacity of 19.5 acre-feet, which is designed to be pumped to a center pivot irrigation system. The wells are sourced by shallow groundwater from an unconfined gravel and sand aquifer system. According to Dr. Willis Weight, an engineer and hydrogeologist, and consultant for DeBuff, the aquifer is recharged from melt-off from the Big Snowy Mountains to the north, and thins or "pinches out" as it flows to the south. The proposed period of diversion for the project would be annually, between April 20 and October 10, for irrigation purposes.
¶4 In 1984, DeBuff applied with DNRC for a water use permit to appropriate ground water from the source aquifer. A contested hearing was held, after which the application was denied in the 1987 Final Order, wherein DNRC determined DeBuff had failed to prove that the water rights of senior appropriators downstream to the source aquifer would not be adversely affected by the proposed appropriation. DNRC dismissed the application without prejudice to a reapplication by DeBuff should sufficient evidence become available to satisfy the burden of proof regarding adverse impacts to senior appropriators.
¶5 Beginning in November 2013, Weight conducted a series of assessments to examine the feasibility of DeBuff's proposed appropriation. A preliminary aquifer test was conducted that consisted of a 74-hour pumping test at 160 gallons per minute, resulting in a cone of depression in the aquifer water levels that extended up to 1,800 feet. Another 74-hour pumping test was conducted in September 2014 at a rate of 425 gallons per minute, resulting in a cone of depression of up to 2,000 feet, although full recovery was realized in less than four hours. During the second test, a gauge installed on one of the southern springs indicated no response or impact from the water draw. A third test conducted in the fall of 2015 yielded similar results.
¶6 At a pre-application, on-site meeting with DeBuff and their consultants, DNRC approved DeBuff's proposal to conduct a subsequent four-well aquifer test, agreeing that the September 2014 test would be suitable to assess aquifer properties, while the following test would be used to further assess the impacts of pumping. In November 2015, an 88-hour pump test was conducted to evaluate pumping productivity of the aquifer, with an average pumping rate of 1,491 gallons per minute, resulting in a cone of depression of 2,700 feet. This pump test also analyzed the drawdown of five separate wells. From this test, Weight concluded that, since the nearest property line was 2,900 feet away, the cone of depression was unlikely to extend beyond DeBuff's property line. Though the proposed testing had been initially approved by DNRC, in a December 2015 variance letter the agency expressed concern that any analysis with as many as five pumping wells would make it difficult to provide the necessary controls to properly evaluate aquifer properties.
¶7 In February 2016, DeBuff submitted a renewed application for a beneficial water use permit to DNRC's Lewistown Water Resource Regional Office. As initially filed, DeBuff proposed an appropriation of 3.63 cubic feet per second and a volume of 552.69 acre-feet for the purpose of irrigating 267 acres of DeBuff's property. In August 2018, Douglas Mann, who, along with Atilla Folnagy, processed the application for DNRC, delivered a deficiency letter to DeBuff pursuant to § 85-2-302(5), MCA, stating concerns about the impact the project would have on Elk Creek, situated south of DeBuff's property. DNRC believed Elk Creek was connected to and supplied by a northern water source, Timber Creek. Weight and DeBuff responded to the deficiency letter, indicating that Elk Creek was not connected to any northern source and was ephemeral, and that the northern source identified by DNRC ran dry on DeBuff's property. Weight also stated for the first time that evapotranspiration analysis would be appropriate in this situation and that he would conduct such analysis in the event that the application was deemed correct and complete by DNRC.1 ,2
¶8 In January 2017, DNRC issued a report addressing the additional information supplied by DeBuff and Weight. The report stated the proposed evapotranspiration analysis may not be reliable because it would address conditions unrelated to pumping, and that Weight's conceptual model depicting the aquifer as confined was questionable because it was based on limited well logs.
¶9 DNRC determined the application to be correct and complete and issued a technical report in March 2017. The technical report, which incorporated an aquifer test report and depletion report prepared by DNRC staff hydrologists, examined water availability from two vantage points: ground water and surface water. The report determined groundwater to be both physically and legally available. However, the report determined that surface water was physically and legally available only during certain months, rather than annually. Monthly watershed yield, which impacts water availability, was estimated by DNRC at this time using the Thornthwaite program, a software analysis tool, despite DNRC acknowledging that portions of the program's conclusions were "very unlikely."
¶10 In April 2017, DeBuff submitted additional information regarding surface level depletion of the southern "Bunkhouse" well that indicated the aquifer thinned or pinched out, and was discontinuous. At a meeting of the parties in June 2017, Weight presented a conceptual model that illustrated the pinching out of the source aquifer. In order to satisfy DNRC's concern that the conceptual model was not supported by enough field data, the model was supported not only by the prior pump test and well log data that DNRC had questioned as insufficient, but by additional well log information gathered in July 2016.
¶11 In November 2017, DNRC issued a revised technical report that incorporated portions of DeBuff's additional evidence and analysis. The revised technical report conceded that DeBuff's analysis correctly determined that the aquifer thinned or pinched out, and, consequently, a different net depletion method than used in the prior depletion report would need to be employed. However, DNRC stated that the pinching out did not mean that the aquifer was discontinuous. Instead, DNRC continued to rely on a prior determination it had made, based upon an analysis of shade contrasts in aerial photos, that the source aquifer was continuous to the southern springs. DNRC also conceded that DeBuff had demonstrated the drainage south of Living Springs was ephemeral, but that, instead, it now believed the southern springs to be the source for Elk Creek and related downstream water rights. The revised report expressed concern that, while depletion to Living Springs would be realized within the same month as the pumping occurred, depletion of the southern springs and to their respective reaches—which DNRC now characterized as the source aquifer for Elk Creek—would be more difficult to gauge, due to the greater distance to the southern springs, and was "assumed to be constant year-round depletion." Lastly, the revised report conceded that the watershed analysis previously employed and relied on by DNRC—figures deriving from the Thornthwaite program—was "not appropriate for comparing legal availability of surface...
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