May 20, 2008
TO: Water Policy Committee
FROM: Greg Petesch
RE: Bostwick Properties, Inc. v. Montana Department of Natural Resources and Conservation
On May 12, 2008, the District Court for the 18th Judicial District in Gallatin County decided the
case of Bostwick Properties, Inc. v. Montana Department of Natural Resources and
Conservation, Cause No. DV-07-917AX, 18th Judicial District (2008). Bostwick is developing a
subdivision located near Big Sky, Montana. In the case, Bostwick was seeking a writ of
mandamus directing the Department of Natural Resources and Conservation (DNRC) to issue a
water use permit for a well from a deep aquifer consisting of water in fractures in bedrock for a
municipal water system. Gallatin County gave preliminary plat approval for the subdivision in
February 2005.
After conducting testing, Bostwick submitted an initial application for a water permit to the
DNRC on December 22, 2005. After discussion and submission of additional information, the
DNRC terminated the application as untimely on July 7, 2006. On November 30, 2006,
Bostwick filed another application for a water use permit for water from the same aquifer for the
same use as the prior application. After the DNRC informed Bostwick of technical deficiencies
in the application, Bostwick provided additional information addressing the deficiencies, and on
February 13, 2007, the DNRC determined that the application was "correct and complete"
pursuant to section 85-2-302, MCA, and directed that public notice be given of the application
pursuant to section 85-2-307, MCA. Notice of the application was published on February 20,
2007, providing for an objection period ending March 22, 2007. Objections were received from
the Department of Fish, Wildlife, and Parks and Trout Unlimited. Those objections were settled
and withdrawn on May 17, 2007. By mid-August, 2007, more than 180 days had elapsed
following the publication of the application for a water use permit without action by the DNRC.
Section 85-2-310(1), MCA, provi