Judge rules against approval of proposed subdivision near Canyon Ferry Lake

Horse Creek Hills View
Posted at 8:48 PM, Feb 15, 2024
and last updated 2024-02-16 10:49:49-05

HELENA — A state district judge has blocked approval of a proposed subdivision near Canyon Ferry Lake, ruling leaders didn’t do enough to make sure it wouldn’t harm nearby water users.

Judge Michael McMahon ruled Broadwater County’s 2022 approval of the preliminary plat for the Horse Creek Hills subdivision was “arbitrary, capricious and/or unlawful.” He sided with nearby landowners and the environmental organization Upper Missouri Waterkeeper, who sued the county and the Montana Department of Natural Resources and Conservation.

The proposed subdivision would be located near the east shore of the lake, on several hundred acres west of Lower Confederate Road. The parcel would be divided into 39 residential lots and two commercial lots, which would be developed in four phases.

The plaintiffs claimed Broadwater County failed to gather adequate information about the potential impacts of the development, including the possibility that more groundwater use could affect Confederate Creek. They claimed DNRC misinterpreted a state law that allows “exempt water wells” – wells that withdraw no more than 10 acre-feet of water per year – without going through the process of applying for a groundwater permit.

In his more than 80-page ruling, McMahon wrote that the developer, not the county, has the responsibility to provide information about the project’s impacts on groundwater and neighboring users – but that that information was lacking in this application, and the county was wrong to approve it.

“The environmental assessment includes only the barest information about water resources; omits necessary information about waters’ health and interaction; fails to consider the impact of exempt wells; and arbitrarily limits its analysis to only the property itself and not neighboring landowners and waters,” he wrote.

McMahon also said DNRC had an incorrect interpretation when it issued four “predetermination letters” to the subdivision’s developer, saying that each of the four phases of the project would be entitled to an exempt well. He said the department’s guidance appeared to be ignoring legal precedent around exempt well laws, and he added a declaration in bold type.

“There is no basis in law for DNRC to treat the four phases of 71 Ranch’s subdivision project separately, a conclusion which is absolutely clear from statute, administrative rule, Montana Supreme Court precedent, and even DNRC’s letters in this matter,” McMahon wrote. “Any and all phases of this project are one single combined appropriation.”

Broadwater County Attorney Cory Swanson said in a statement to MTN Thursday that they were examining McMahon’s ruling and assessing their next steps. A DNRC spokesperson said the same.