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Home My WebLink About11-21-22 Public Comment - L. Gilliland - 2008 Lyman Creek Diversion StatusFrom:Lance Gilliland To:Agenda Subject:[WARNING: ATTACHMENT UNSCANNED]2008 Lyman Creek Diversion status Date:Monday, November 21, 2022 6:04:26 PM Attachments:Letter to BZN Commission 11 21 22 Final.pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. At the end of the last meeting, Dep. Mayor Cunningham asked the City staff if there was an illegal diversion on Lyman Creek. The attached letter and supporting documents include communications between the DNRC and the City regarding the 2008 diversion. Please note that both the Aug 2020 letter from the DNRC to the City and the latest DNRC internal email of Dec 2021, both attached, confirm the noncompliance of the 2008 diversion on Lyman Creek. To understand this issue, please read attached. Lance and Siri Gilliland Lyman Creek, LLC 3185 Bridger Canyon Road Bozeman, MT 59715 lancegilliland@gmail.com Page 1 of 1 November 21, 2022 Bozeman City Commissioners 121 N Rouse Avenue Bozeman, MT 59715 RE: Commissioners Inquiry Regarding Bozeman’s unpermitted 2008 Diversion on Lyman Creek Response to Bozeman’s August 24, 2022, Lyman Creek Spring Diversion Letter Dear City Commissioners, Thank you for providing the opportunity for myself and my wife, Siri to speak at the November 15, 2022 Bozeman Commission Meeting about the important issues surrounding the use of water from Lyman Creek. At the end of the November 15th meeting Deputy Mayor Terry Cunningham asked a question to City Attorney Greg Sullivan regarding Bozeman’s 2008 construction of a third point of diversion associated with the City’s Lyman Creek water right claims. Specifically, whether such construction was legal or not. Please accept this letter and attachments hereto as evidence that the 2008 diversion was never properly permitted, remains in violation of the Water Use Act, and has been identified repeatedly by the Montana Department of Natural resources and Conservation (“DNRC”) as unpermitted and needing to be brought into compliance. Finally, this letter identifies that the City has long recognized and acknowledged this new diversion was unpermitted and only recently recanted that position arguing the 1991 change authorization included this subsequently added point of diversion. As you may be aware, on August 26, 2020, the Department issued a letter to Bozeman identifying that a change authorization was required for the third spring collection diversion point installed by Bozeman in 2008. See August 26, 2020 letter attached hereto as Exhibit A. Therein, the Department stated Bozeman must file for a change authorization for the addition of a point of diversion for water rights 41H 1408820-00 and 41H 140883-00. The Department requested Bozeman comply within 60 days of the letter, or October 25, 2020. On October 22, 2020, Bozeman submitted a response letter to the Department identifying the City’s intention to “determine if administrative pathways exist beyond the filing of a change application to achieve compliance with the Water Use Act.” Bozeman’s October 22, 2020 letter clearly implicates that Bozeman recognized it was not in compliance with the Water Use Act for its unpermitted point of diversion. See October 22, 2020 letter attached hereto as Exhibit B. Lance and Siri Gilliland Lyman Creek, LLC 3185 Bridger Canyon Road Bozeman, MT 59715 lancegilliland@gmail.com Page 2 of 2 Due to complete inaction by both Bozeman and the DNRC, several emails were exchanged in early 2021 between representatives of Lyman and the Department seeking updates. On May 19, 2021, Anna Pakenham Stevenson responded to one such request stating “[t]he City has asked DNRC for a formal opinion regarding what the legal points of diversion are as authorized by the change. DNRC will get that formal opinion question to legal staff by end of day today (5/19). This will determine how the City pursues compliance.” See May 19, 2021 email attached hereto as Exhibit C. On June 17, 2021 the Department issued a letter to Lyman regarding its March 29, 2018 [sic] complaint. Therein the Department stated “[t]he City has been in contact with me about the nature of its point of diversion for its developed spring system, with a formal question asked on February 9, 2021. My understanding is that the City is researching options for coming into compliance. MT DNRC’s policy is that it will not pursue an enforcement action against a water right owner who is working with MT DNRC on coming into full compliance.” (Emphasis added). The letter concluded stating the Department “will continue to work with [Bozeman] on the diversion issue until the City comes into compliance. . . [a]ll other aspects of the complaint are closed.” See June 17, 2021 letter attached hereto as Exhibit D. On December 1, 2021, the Department sent an internal email regarding the subject of Bozeman’s 1991 and 2008 changes to its Lyman Creek water rights. Therein, the Department concluded that the 1991 change authorized only TWO of the perforated pipe systems, with the third pipeline system added in 2008 being out of compliance. This email was forwarded to Lyman and Bozeman on August 19, 2022. See August 19, 2022 email with attachments attached hereto as Exhibit E. One week later, on August 26, 2022, Bozeman responded to this internal email including a letter dated August 24, 2022 “clarifying” Bozeman’s position on the 1991 change application and that Bozeman feels the prior change application authorized the addition of one surface water diversion (the emergency surface water diversion) and only one spring diversion. Bozeman cites to the Application, attachments to the application, the DNRC Authorization, and the Notice of Completion. Bozeman’s conclusion is the “application and authorization clearly contemplated a total of three points of diversion.” However, Bozeman identifies those “three” points of diversion as the one pre-existing historic surface diversion plus the surface water diversion added in the change plus ONE “spring diversion.” As identified above, Bozeman has long recognized that it is not in compliance with the Water Use Act where it has an unpermitted point of diversion. This was similarly the opinion of the DNRC, no later than August 20, 2020 and continuing through the DNRC’s internal legal opinion correspondence dated December 2, 2021. To this day, the DNRC has consistently recognized that the third spring diversion installed by Bozeman in 2008 is not in compliance Lance and Siri Gilliland Lyman Creek, LLC 3185 Bridger Canyon Road Bozeman, MT 59715 lancegilliland@gmail.com Page 3 of 3 with the Water Use Act, was never permitted, and requires action to bring Bozeman into compliance with the Water Use Act through processes already established by the Department. Bozeman too recognizes this and instead of seeking to come into compliance, asks the Department to “reconsider” the ample evidence before it bases a decision on a misguided and construed interpretation of the change application. Bozeman’s recently revised opinion that the 2008 developed spring diversion is not unpermitted but instead was identified somehow in the 1991 change application is completely unfounded and incorrect. According to the Water Use Act, Bozeman can not add a diversion point without notice and analysis of adverse effects to third parties. To the extent my wife and I articulated this point in our comments at the Commission meeting last night, and the City Attorney has opined that those comments were false, we respectfully submit this letter to clear the record and provide substance to our statements. Regards, Lance and Siri Gilliland Lyman Creek, LLC A COB (Lyman) - 003067B stephenson@dmsnaturalresources.com From:Pakenham Stevenson, Anna <Anna.PakenhamStevenson@mt.gov> Sent:Wednesday, May 19, 2021 1:22 PM To:Lance Gilliland; <stephenson@dmsnaturalresources.com>; Siri Gilliland Cc:Rennick, Laura; Strasheim, Kerri Subject:RE: [EXTERNAL] Fwd: Lyman Creek, LLC Complaint Lance, Siri, and Deb: I have spoken with Kerri Strasheim, and she apologizes profusely for her delay in responding to this complaint matter. With regards to the City of Bozeman’s point of diversion compliance, the City and DNRC spoke on February 9, 2021, in an unscheduled phone call. The City has asked DNRC for a formal opinion regarding what the legal points of diversion are as authorized by the change. DNRC will get that formal opinion question to legal staff by end of day today (5/19). This will determine how the City pursues compliance. DNRC will work to respond to the other three items in the complaint within the next month and have a response by June 18th. I am out on leave starting next week and will not be back in the office until August. In my absence, Laura Rennick (cc’d here) our Deputy Division Administrator, will work with Kerri to make sure we continue to communicate with you on this matter. I would like the opportunity to meet you in person however, with my upcoming leave, it will not be possible. Laura (or Laura and Kerri) can be available to meet in person at your request. DNRC appreciates your concerns about water use and will endeavor to address them as best as we can within our current resources and statutory framework. I apologize for the delay in our response and welcome future discussions with you to resolve these issues. Sincerely, Anna Anna Pakenham Stevenson Administrator Water Resources Division 1424 9th Avenue ∙ Helena, MT 59620‐1601 406.444.6605 ∙ Anna.PakenhamStevenson@mt.gov C Lyman004459D Lyman004460 From:Strasheim, Kerri To:Julia Pharmer; Rick Tappan Subject:Public Information Request Date:Friday, August 19, 2022 12:14:48 PM Attachments:2020-10-26 City of Bozeman Response Letter.pdf POD question - City of Bozeman.msg FW POD question - City of Bozeman.msg RE POD question - City of Bozeman.msg Greetings – Here is the response to your public information request. I have attached the October 2020 letter from the City of Bozeman, and then I have attached subsequent internal emails discussing the policy question of what we would consider the point of diversion for the springs, both today and as authorized. This matter is ongoing. I expect to have a letter finalized in the nearer future, and I will share that with you, as the representative for Lyman Creek LLC. Let me know if I can answer any further questions. Have a good day, Kerri ___________________ Kerri Strasheim Regional Manager – Gallatin, Madison, and Park Counties MT DNRC Water Resources 2273 Boot Hill Court, Suite 110 Bozeman, MT 59715 Ph: 406-556-4504 E From:Strasheim, Kerri To:Heffner, Millie Cc:Ferch, James; Rennick, Laura; Pakenham Stevenson, Anna Subject:POD question - City of Bozeman Attachments:2021-5 City of Bozeman Question using Legal Review Template DRAFT.DOCX 2021 City of Bozeman Lyman Creek Point of Diversion Question.docx Millie – After reviewing the legal template form, the request should come from the Bureau, itsounds like? And, I think this is often preferred. Also, when we spoke of this in the past, you had mentioned looking at water right information first, I think. I will defer to you and your team on whether or not this needs legal input yet or not. I have attached a legal template request example, and a document that attempts tosimplify this question. Thank you for any help in answering this question for the City of Bozeman as they work with us to come into POD compliance. Thank you,Kerri___________________Kerri StrasheimRegional Manager – Gallatin, Madison, and Park Counties MT DNRC Water Resources2273 Boot Hill Court, Suite 110Bozeman, MT 59715Ph: 406-556-4504Fax: 406-587-9726kstrasheim@mt.gov “Individually, we are one drop. Together, we are an ocean.” -Ryunosuke Satoro From:Strasheim, Kerri To:Ferch, James; Ostermayer, Gabrielle; Ward, Nathaniel Subject:FW: POD question - City of Bozeman Attachments:2021-5 City of Bozeman Question using Legal Review Template DRAFT.DOCX2021 City of Bozeman Lyman Creek Point of Diversion Question.docx Jim, Gabrielle, and Nate – I hope you all can help figure out some guidance on this. The complainants and the City have been waiting a while, but I also understand the staffing resource issues! Thank you, Kerri From: Strasheim, Kerri Sent: Wednesday, May 19, 2021 3:52 PM To: Heffner, Millie <MHeffner@mt.gov> Cc: Ferch, James <JFerch@mt.gov>; Rennick, Laura <lrennick@mt.gov>; Pakenham Stevenson, Anna <Anna.PakenhamStevenson@mt.gov> Subject: POD question - City of Bozeman Millie – After reviewing the legal template form, the request should come from the Bureau, itsounds like? And, I think this is often preferred. Also, when we spoke of this in thepast, you had mentioned looking at water right information first, I think. I will defer to you and your team on whether or not this needs legal input yet or not. I have attached a legal template request example, and a document that attempts tosimplify this question. Thank you for any help in answering this question for the Cityof Bozeman as they work with us to come into POD compliance. Thank you,Kerri___________________Kerri StrasheimRegional Manager – Gallatin, Madison, and Park CountiesMT DNRC Water Resources2273 Boot Hill Court, Suite 110Bozeman, MT 59715Ph: 406-556-4504Fax: 406-587-9726kstrasheim@mt.gov “Individually, we are one drop. Together, we are an ocean.” -Ryunosuke Satoro From:Strasheim, Kerri To:Ostermayer, Gabrielle Cc:Ferch, James; Ward, Nathaniel Subject:RE: POD question - City of Bozeman Thank you – much appreciated! I will draft a letter to send out. I may run it by you all first, to make sure my verbiage is correct. Kerri From: Ostermayer, Gabrielle <Gabrielle.Ostermayer@mt.gov> Sent: Wednesday, December 1, 2021 10:38 AM To: Strasheim, Kerri <kstrasheim@mt.gov> Cc: Ferch, James <JFerch@mt.gov>; Ward, Nathaniel <NWard@mt.gov> Subject: RE: POD question - City of Bozeman Hi Kerri, After discussion amongst Ferch, Nate, and I, we have come to the consensus that the City of Bozeman’s points of diversion that were authorized under Change App 41H 14088200 (for water rights 41H 140883-00 and 41H 140882-00) are the 2 subsurface perforated pipes on Lyman Creek. The perforated pipes are where water is diverted from the source, therefore they are the authorized PODs. DNRC perhaps hasn’t been consistent with naming conventions on means of diversion (i.e. headgate seems a bit odd in the database here, and the info remark identified 2 subsurface spring boxes), but historically a POD is always where water is diverted from the source. Change App 41H 14088200 from 1991 only authorized 2 of those perforated pipe systems, so the 3rd pipeline system that was added more recently is out of compliance. Please let us know if there are any other questions that remain in order to resolve this complaint. Thanks! Gabrielle Ostermayer New Appropriations Specialist MT DNRC Water Resources Office 1424 9th Ave. Helena, MT, 59601 (406) 444-6679 gabrielle.ostermayer@mt.gov From: Strasheim, Kerri <kstrasheim@mt.gov> Sent: Thursday, November 18, 2021 2:27 PM To: Ostermayer, Gabrielle <Gabrielle.Ostermayer@mt.gov>; Ferch, James <JFerch@mt.gov>; Ward, Nathaniel <NWard@mt.gov> Subject: RE: POD question - City of Bozeman This internal discussion document should help! Kerri From: Ostermayer, Gabrielle <Gabrielle.Ostermayer@mt.gov> Sent: Thursday, November 18, 2021 2:24 PM To: Strasheim, Kerri <kstrasheim@mt.gov>; Ferch, James <JFerch@mt.gov>; Ward, Nathaniel <NWard@mt.gov> Subject: RE: POD question - City of Bozeman What specific water rights does this deal with? I’m asking because I’m confused about whether or not this is a surface water or groundwater source… Gabrielle From: Strasheim, Kerri <kstrasheim@mt.gov> Sent: Thursday, November 18, 2021 12:06 PM To: Ferch, James <JFerch@mt.gov>; Ostermayer, Gabrielle <Gabrielle.Ostermayer@mt.gov>; Ward, Nathaniel <NWard@mt.gov> Subject: FW: POD question - City of Bozeman Jim, Gabrielle, and Nate – I hope you all can help figure out some guidance on this. The complainants and the City have been waiting a while, but I also understand the staffing resource issues! Thank you, Kerri From: Strasheim, Kerri Sent: Wednesday, May 19, 2021 3:52 PM To: Heffner, Millie <MHeffner@mt.gov> Cc: Ferch, James <JFerch@mt.gov>; Rennick, Laura <lrennick@mt.gov>; Pakenham Stevenson, Anna <Anna.PakenhamStevenson@mt.gov> Subject: POD question - City of Bozeman Millie – After reviewing the legal template form, the request should come from the Bureau, itsounds like? And, I think this is often preferred. Also, when we spoke of this in thepast, you had mentioned looking at water right information first, I think. I will defer to you and your team on whether or not this needs legal input yet or not. I have attached a legal template request example, and a document that attempts tosimplify this question. Thank you for any help in answering this question for the Cityof Bozeman as they work with us to come into POD compliance. Thank you,Kerri___________________Kerri Strasheim Regional Manager – Gallatin, Madison, and Park Counties MT DNRC Water Resources 2273 Boot Hill Court, Suite 110 Bozeman, MT 59715 Ph: 406-556-4504 Fax: 406-587-9726 kstrasheim@mt.gov “Individually, we are one drop. Together, we are an ocean.” -Ryunosuke Satoro