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Home My WebLink About011aa Irrigation Ditch Summary_4840 Fowler201 East Broadway Street P.O. Box 104 Helena, Montana 59624 Main 406.410.5050 Fax 801.536.6111 A Professional Law Corporation Abigail R. Brown Attorney at Law Direct 406.410.5022 abbybrown@parsonsbehle.com PARSONSBEHLE.COM 4884-1083-4056 October 20, 2023 Via Email Only 2B Holdings, LLC Attn: Ben Nistler 7555 Cottonwood Rd. Bozeman, MT 59718 ben@nhbmt.biz Re: Water Rights & Agricultural Water User Facilities Considerations at 4840 Fowler Lane, Bozeman, Montana Dear Ben, As you are aware, developers in the Bozeman area must provide the City of Bozeman (“City”) with documentation of compliance with Bozeman Municipal Code Sections 38.360.280 and, if applicable, 38.410.060. As I understood our conversation, the City relies on the developer to confirm it has done its due diligence to identify potentially impacted agricultural water users whose facilities might be impacted by a development project. Any potentially impacted agricultural water user must then receive notice of the development and opportunity to comment, as set forth in BMC 38.360.280. The purpose of this letter is to (1) confirm what water rights, if any, are appurtenant to the property located at 4840 Fowler Lane (hereinafter “Property”), (2) outline the steps I took to identify potential agricultural water users whose agricultural water user facilities (i.e., ditches, culverts, pipelines) might be affected by development on the Property, and (3) confirm which potentially impacted water users, if any, are required to receive notice and opportunity to comment in order to comply with BMC 38.360.280. Based on our discussions and a review of the Bozeman GIS mapping software, I understand there are 4 irrigation ditches within 100’ of the exterior boundaries of the Property. From west to east, those ditches are: A. The “West Fowler Ditch” B. The “East Fowler Ditch” C. Unnamed Ditch 1 D. Unnamed Ditch 2 (outside Property boundary, within 100’) 4884-1083-4056 October 20, 2023 Page Two See Exhibit A to this letter for a visual representation of the ditch locations, as depicted on the City’s GIS Community Development Viewer. Identification of Water Users. In Montana, all valid water rights are recorded in a publicly accessible centralized database maintained by the Montana Department of Natural Resources & Conservation (DNRC) called the Water Rights Query System (“WRQS”). See Bozeman Municipal Code 38.360.280(2)(d). To identify which water rights may be impacted by development on the Property I searched the WRQS for surface and groundwater water rights: (1) owned by 2B Holdings, LLC; (2) with a Place of Use on the Property (S2NW § 23 T2S R5E); (3) with a Place of Use on parcels within 100 feet of the exterior boundaries of the Property; (4) with a Point of Diversion on the Project parcel (S2NW § 23 T2S R5E); (5) that identify West Fowler Ditch as a means of conveyance to locations north of the Property; (6) that identify East Fowler Ditch as a means of conveyance to locations north of the Property; (7) that identify Unnamed Ditch as a means of conveyance to locations north of the Property; and (8) that identify Unnamed Ditch 2 as a means of conveyance to locations north of the Property. Appurtenant Water Rights. Based on the searches described above, I determined there are no surface water rights appurtenant to the Property. The only water right appurtenant to the Property is the groundwater well (41H 99433-00). There are also no points of diversion on the Property for water rights owned by third parties. Potentially Impacted Water Users. From these searches noted above, I compared the results with available mapping in WRQS and irrigation maps found in the Water Resources Survey for Gallatin County. I determined the water right users who have the potential to be impacted by development on your Property are as follows, categorized by ditches: (1) West Fowler Ditch. This is an active irrigation ditch. It is utilized by the following water right users who service places of use within 100’ of the Property’s western boundary, or down-ditch of the Property: •Middle Creek Ditch Company, % Kevin Haggerty, P.O. Box 2, Bozeman, MT 59715 •West Gallatin Canal Company, P.O. Box 553, Gallatin Gateway, MT 59730 •Haggerty Family LLC, 51000 Patterson Rd., Bozeman, MT 59718 •Montana State University, MSU Facilities Services, Bozeman, MT 59717- 2760 As discussed below, you may be required to give these water users notice of your development. 4884-1083-4056 1 See Exhibit A at recorded Ditch Relocation Agreement between Buffalo Run Bozeman LLC and West Gallatin Canal Company (Doc. 2786757, Gallatin County); Ditch Relocation Agreement between Buffalo Run Bozeman LLC and Montana State University (Doc. 2790004, Gallatin County); and Ditch Relocation Agreement between Buffalo Run Bozeman LLC and Bradley Family Revocable Trust et al. (Doc. 2786755, Gallatin County). 2 The water rights with a point of diversion on this drain ditch have places of use in the SW and SE § 23 T2S R5E, located more than 100 feet up-ditch from the Property. October 20, 2023 Page Three (2) East Fowler Ditch: None. As you are aware, there has been a lot of discussion regarding the West Fowler Ditch and East Fowler Ditch because of a development located south of the Property called The Homestead at Buffalo Run (5400 Fowler Lane). As a result of that development and the required widening of Fowler Lane, the East Fowler Ditch between Blackwood Road and Stucky Road has been abandoned and all water rights previously conveyed via that ditch have been moved to the West Fowler Ditch.1 I understand that the work to relocate water rights from the East Fowler Ditch to the West Fowler Ditch will be complete in early 2024. (3) Unnamed Ditch 1: None I understand this is a lateral/drain ditch that originates from the East Fowler Ditch at a location in the SWSWSW § 23 T2S R5E on property owned by Fowler RK Holdings LLC. The City’s GIS mapping system confirms this to be the case. There are no water rights with this same point of diversion that have a place of use down-ditch from the Property.2 (4) Unnamed Ditch 2: None Based on a review of the City’s GIS mapping system, Unnamed Ditch 2 is the east branch of Unnamed Ditch 1, splitting just south of Bennett Blvd.: 4884-1083-4056 Abigail R. Brown Attorney at Law ARB/ao October 20, 2023 Page Four Therefore, like Unnamed Ditch 1, there are no water rights with a point of diversion in the SWSWSW § 23 T2S R5E that have a place of use down-ditch from the Property. Notice Requirements. BMC 38.360.280 requires developers to give notice of their project to agricultural water users with facilities located within 100 feet of the exterior boundary of the proposed development unless “the subject of this subsection was fully addressed with a previous development review and a new application is fully in compliance with the earlier approval then compliance with the notice provisions of these subsection is not required.” BMC 38.360.280(C). The only agricultural water user facility for which you may have to provide notice is the West Fowler Ditch. The West Fowler Ditch is within 100’ of the western boundary of the Property. If you do not intend to disturb the West Fowler Ditch during your development, then it may not be necessary to provide notice because the above-referenced water users received notice during the review of The Homestead at Buffalo Run project. However, if your development disturbs or requires any work in the West Fowler Ditch, you must give notice of your development to the above- mentioned water right users to satisfy BMC 38.360.280. The requirement content of such a notice is found in BMC 38.360.280(B). Finally, BMC 38.410.060 does not apply to your development because there are no agricultural water user facilities that originate on, or traverse the Property. However, I understand that you will also be required to widen Fowler Lane as part of the development. If that widening disrupts or otherwise encroaches on the West Fowler Ditch, in addition to the notice requirements above,your engineer will be required to certify that water entering and exiting the West Fowler Ditch is of the same quality and quantity as it was prior to realignment. BMC 38.410.060(3). Please let me know what questions you have, or if anything in this letter requires further clarification. Sincerely, October 20, 2023 Page Five 4884-1083-4056 Exhibit A Depiction of Agricultural Water User Facilities within 100 feet of Property Enlarged View (West Side of Property) Enlarged View (East Side of Property)