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HomeMy WebLinkAbout2017-04-26-LYMAN CREEK WATER OPTIMIZATION PROJECT American Rivers 96- Rivers Connect Us' April 26, 2017 Craig Woolard Public Works Director City of Bozeman 20 East Olive P.O. Box 1230 'APR 8 201) Bozeman, MT 59715 Re: Lyman Creek water optimization project Dear Craig: On behalf of American Rivers' Northern Rockies office in Bozeman, I am writing to request information about the city of Bozeman's plans to optimize water production from Lyman Creek. I recently was alerted about this issue by a landowner who lives along the lower reach of the creek. He and his wife are concerned that the city's plans could reduce Lyman Creek's flow, affect their existing uses, and harm the public's fish and wildlife. American Rivers is the leading conservation organization working to protect and restore the nation's rivers and streams. Based in Washington, DC with field offices around the country,American Rivers has 250,000+ members and supporters, including several hundred who live in the city of Bozeman and the surrounding area. Through our Clean Water Supply program,American Rivers works with communities across the country to meet their water supply needs through projects that are efficient, cost-effective and have the smallest possible environmental footprint. By all accounts, the city of Bozeman is doing a good job meeting its current water supply needs despite its unprecedented growth. It is our understanding that the city gets more than 75 percent of its water from Hyalite and Sourdough creeks, with Lyman Creek providing less than 20 percent of the city's supplv. Last week I toured the Lyman Creek drainage and learned for myself how important it is to fish and wildlife. Surveys conducted by Montana Fish, Wildlife and Parks (FWP) have found that Lyman Creek supports spawning rainbow and brown trout that migrate up from Bridger Creek, in which FWP has an instream flow right to protect its fishery. In speaking with Lance Gilliland, who owns the property at the base of the creek, I also learned that the Lyman Creek corridor provides important habitat for all kinds of wildlife including mule deer, whitetail deer, elk, moose, black bear, coyotes, blue heron and Sandhill cranes. Given the importance of Lyman Creek to fish and wildlife, and considering that state law restricts water withdrawals by upstream water users when they could adversely affect Northern Rockies Office 1 321 East Main Street I Suite 408 1 Bozeman, MT 59715 1 American Rivers.org downstream water users,American Rivers requests that the city of Bozeman carefully evaluate the potential impacts of modifying its water intake prior to undertaking any work that could alter downstream flows. Ideally, we would like to see the city identify the minimum flow that is required to sustain fish and wildlife and protect downstream water users in the Lyman Creek drainage, and commit to leaving that amount of water in the stream. Thank you for taking our concerns into consideration as the city moves forward with this project. We look forward to being kept apprised of its progress. Sincerely, S V_*�'1:_�_-(v�S f-L. Scott Bosse Northern Rockies Director Cc: Carson Taylor, Mayor Cyndy Andrus, Deputy Mayor Jeff Krauss, City Commissioner Chris Mehl, City Commissioner I-Ho Pomeroy, City Commissioner Pat Byorth, Trout Unlimited %,4 Printed on paper that contains bOa post-consumer recycled fiber UNLIMITED Patrick Byorth Director of Montana Water, Western Water &Habitat Project Craig Woolard Public Works Director APR 2 .5 f�Ol City of Bozeman 20 East Olive B •— P.O. Box 1230 Bozeman, MT 59715 April 21, 2017 Re: Lyman Creek Dear Craig, I have recently become aware of the City of Bozeman's plan to update its water intake at Lyman Creek. As you may know, Lain Leoniak and Brian Heaston graciously took the time to meet with a group of us regarding the project in early April. While I appreciate the City's need to meet its growing demands for water, I am concerned about the projects' effects on fisheries values in Lyman Creek and the effects on downstream water users including the Gillilands and Montana Fish, Wildlife and Parks' (FWP) instream flow reservation in Bridger Creek. FWP has documented the presence of juvenile rainbow and brown trout in Lyman Creek, which indicates it is an important source of recruitment to Bridger Creek. As a spring-fed stream, its stable water temperatures in winter and summer provides both ice-free rearing habitats for fall spawning brown trout and guards against transmission of whirling disease to spring spawning rainbow trout. Furthermore, this stable spring source augments FWP's instream flow reservation in Bridger Creek and support riparian habitats vital for a variety of wildlife, including a diverse avian community and large and small mammals. The City has apparently taken the position that its senior water rights enable it to exercise the full measure of its water right claims. However,the measure of a water right in Montana has always been limited to the amount of water historically put to a beneficial use. The City's proposal appears to expand the amount it diverts into the Lyman Creek system, which raises factual and legal questions about the extent of its water right claims, not the least of which is whether the expansion causes adverse effects to downstream water users and the fishery. TU seeks your cooperation in analyzing the effects that the City's proposal may have on downstream water users and the fishery. In particular, we would like to better understand how water bypassing the City's diversion affects streamflows downstream. For example, it may be that the proposed expansion will not significantly dewater Lyman Creek because groundwater accretions may maintain sufficient instream flow. if this is the case,we'll all be relieved. However, until we have sufficient data, it will be difficult for the parties to predict downstream Trout Unlimited: America's Leading Coldwater Fisheries.Conservation Organization 321 East Main Street,Suite 411,Bozeman,MT 59715 office: (406)522-7291 • cell: (406)548-4830 9 email: pbyorth@tu.org 0 www.tu.org Page 2 effect. Ideally, the parties can agree on a minimum bypass flow to protect the fishery and downstream water users from adverse effects. To identify a minimum instream flow necessary to protect the fishery and downstream users, I'd suggest gathering streamflow measurements at various locations to correlate intake and bypass flows. Lain and Brian kindly provided streamflow records, although gaps make it difficult to harmonize diversions with flows downstream of the City's diversion. If the City is amenable to a partnership with FWP, TU, and the Gillilands, TU agrees to conduct an analysis of minimum streamflows necessary to protect the fishery and downstream water users. FWP will collaborate by collecting flow data downstream of the diversion works. The Gillilands will provide access to their property to enable data collection below the City's diversion. Would the City please consider two requests: 1. allowing access to City property to measure streamflows, and 2. refrain from increasing the flow rate of diversions until minimum bypass flows can be established and agreed upon? We have long enjoyed a productive relationship in balancing the City's water needs with other resource values across the Gallatin Valley. I look forward to working with you and your staff to resolve the questions raised by the proposed Lyman Creek expansion project. Sincerely, Patrick Byorth C: Lance and Siri Gilliland, Dave Moser, Deborah Stephenson April 21, 2017 Ms. Lain Leoniak Mr. Brian Heaston City of Bozeman 20 East Olive P.O. Box 1230 Bozeman, MT 59771-1230 Via email: bheaston a bozeman.net lleoniak(Z bozeman.net RE: Lyman Creek Water Use Dear Lain and Brian: Thank you for meeting with us on April 3, 2017. We found the meeting to be enlightening and appreciate the information that you shared. As you are aware, we own property along Lyman Creek in the west half of sections 28 and 33, Township 1 South, Range 6 East. The property is owned under Lyman Creek, LLC ("LC") LC also owns several water rights to Lyman Creek, including the water right claim nos. 41H 115677-00, 41H 179248-00, 41H 179251-00, and 41H 179255-00. We are interested in the City's plans for its Lyman Creek system because of the potential adverse effect it may have on our downstream water rights, property values and the surrounding environment. Lyman Creek is an important natural feature to us,just as it is to many others. LC sent the City a letter in May of 2016 describing LC's concerns with expansion of use by the City from Lyman Creek. The City's outside legal counsel responded on June 21, 2016 and assured us that the City has no intention of diverting or using any more water than what was properly authorized at the time LC acquired its property. On February 23, 2017, we received a copy of the City's document titled "City of Bozeman Lyman Water System &Lyman Spring Study" dated January 17, 2017. The study indicates that the City will be embarking a project to expand its diversion and use of water from Lyman Creek by approximately 400 to 500 acre-feet per year. The report suggests the City has unused available capacity under its water rights that it now can put to use. The study did not evaluate the downstream impacts of the City's expansion as to use of Lyman Creek (generally or address any of the concerns raised in our May 2016 letter. We also have a different perspective on the City's legal right to expand beyond its historic use. At the April 2017 informal meeting, I described our concerns with the City's proposed increase in water use from Lyman Creek. If the proposal is implemented as the report suggests, we are quite concerned that Lyman Creek would be dewatered at certain times Of the year, which would be harmful to our water rights. in addition to the fisher and I - y ecological amenities the creek provides. We desire to work cooperatively with the City to ensure that the City can exercise its water rights while at the same time ensuring that LC*s downstream water rights are not Z-- - negatively impacted. We would prefer to avoid an acrimonious legal or public dispute and do believe that a mutually agreeable solution can be reached. As a first step in determining what a resolution might include, we request that before the City increases its diversions from Lyman Creek, that it evaluate the likely impacts to downstream flows and water rights. LC is willing to cooperate in this study by providing the City, Trout Unlimited or FWP access to its property along the creek to take stream flow measurements. In the meantime, we ask that the City refrain from activities that might lead to expanding use of water from Lyman Creek until this study can be completed, and discussed by all parties and the general public. Based on the results of this study, we envision working with the City to develop an agreement that enables the City to move forward while also protecting the environment and downstream interests. We look forward to working collaboratively with you on this issue. We are happy to discuss this matter further with you at your convenience. Sincerely, Lance & Siri Gilliland Cc: Stephen R. Brown, Garlington, Lohn &Robinson PLLP Trout Unlimited, Pat Byorth Fish, Wildlife and Parks, David Moser & Bill Schenk Deborah Stephenson, DMS Natural Resources, LLC STIPULATION This Stipulation is made and entered into by and between the City of Bozeman (`Bozeman") and Lyman Creek, LLC ("Lyman"), effective as of , 2017. RECITALS A. Bozeman is a municipality organized and existing under the laws of the State of Montana. As a municipality Bozeman has certain obligations to its residents and to the public generally. B. Bozeman claims water rights to divert water from Lyman Creek for beneficial use. Bozeman's Lyman Creek water rights (the "Bozeman Water Rights") include the following claims: 41H 140882-00 41H 140883-00 C. Lyman is a private party that owns land Gallatin County, Montana. Lyman Creek flows through Lyman's property. Lyman claims private water rights from Lyman Creek. Lyman's water rights include the following claims: 41H 115677-00 41H 179248-00 41H 179251-00 41H 179255-00 D. The parties enter into this agreement to establish an understanding about how Bozeman will exercise its water rights in the future to avoid disputes between the parties. Now,therefore,the parties agree as follows: AGREEMENT 1. Maintenance of Streamflows. Except in the case of Emergency Conditions (defined below), Bozeman stipulates and agrees that it will operate its Lyman Creek water system in a manner that maintains streamflow in Lyman Creek at not less than the following daily average minimum flow rates, as monitored and measured under the terms of this Stipulation: Daily avera e minimum streamflow(cfs) Jan Feb Mar Apr May Jun Jul Au Sep Oct Nov Dec 1 2371408_4 2. Measurement. Bozeman agrees to maintain a Parshall flume or other appropriate measuring device in Lyman Creek at or near the point at which Lyman Creek crosses the southern boundary of Bozeman's property located in the NWNESW Section 21, Township 1 South, Range 6 East (the "Measurement Point"). The measuring device shall be capable of measuring streamflow in Lyman Creek at the Measurement Point on an instantaneous basis. Bozeman shall use reasonable efforts to install and maintain a data logger to automatically measure and record streamflow a timing interval of not less than six-hour intervals. 3. Curtailment of Diversions. Bozeman agrees to curtail its diversions of water from Lyman Creek at any time that the streamflow at the Measurement Point is less than the minimum flow set forth in this Stipulation and shall not resume diversions unless and until streamflow meets or exceeds the minimum flows. Nothing in this Stipulation is intended to require Bozeman to augment streamflow in the event that the natural flow of Lyman Creek at the Measurement Point is less than the applicable minimum streamflow and all diversions by Bozeman have been curtailed. 4. Emergency Conditions. The term "Emergency Conditions" means a fire, power outage, equipment failure, or other similar exceptional incident where there is an unintentional and temporary inability of Bozeman to meet its instantaneous water demand. In the event of an Emergency Condition, Bozeman may temporarily reduce the minimum streamflow by an amount not to exceed 10 percent of the minimum streamflow then in effect. 5. Recordkeeping. Bozeman shall compile a daily record of streamflow based upon an average daily compilation of instantaneous flow records collected each day at the Measurement Point. Bozeman agrees to maintain all streamflow measurement records for a period of not less than five years from the date the records were compiled. Bozeman shall provide a copy of all records to Lyman each month by electronic mail to an address that will be provided by Lyman. All records shall be maintained by Bozeman at the office of Public Works and shall be available to the public. Alternatively, Bozeman may comply with the disclosure terms by publishing the measurement records on a website available to the public. 6. Informational Remark. Bozeman agrees that an informational remark shall be added to water right claims 41H 140882-00 and 41H 140883-00 stating that each of the claims is subject to a stipulation establishing minimum streamflow conditions. 7. Agreement Not to Object. So long as Bozeman adheres to its commitment to maintain streamflows as provided in this Stipulation, and so long as Bozeman complies with the terms of this Stipulation, Lyman stipulates and agrees not to object to the Bozeman Water Rights in any examination, reexamination, water rights change, or other proceeding other than as necessary to enforce the terms of this Stipulation. 8. No Waiver. Nothing in this Stipulation is intended to waive or relinquish any right, obligation, claim or defense of either party this is not specifically addressed in this Stipulation. 2 2371408_4 9. Miscellaneous. a. This Stipulation is the compromise of disputed matters and is not to be construed as an admission against the interests of any party. b. The terms of this Stipulation are binding on the parties, their successors, heirs, and assigns. C. Each party represents that it has the authority to execute this Stipulation and is bound by the terms herein. d. Each undersigned party entered into and executed this Stipulation voluntarily, in good faith, and without any fraud, misunderstanding, misrepresentation, overreaching, duress, or undue influence. e. This Stipulation may be executed by the parties in several counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one instrument. Facsimile or electronically transmitted copies of signatures will be deemed the equivalent of original signatures. CITY OF BOZEMAN By: LYMAN CREEK, LLC By: 3 2371408_4