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HomeMy WebLinkAbout05-19-25 Public Comment - K. Berrry - Public Comment for 05.20 City Commission MeetingFrom:Katherine Berry To:Bozeman Public Comment Cc:Holly Hill; Lilly McLane Subject:[EXTERNAL]Public Comment for 05.20 City Commission Meeting Date:Monday, May 19, 2025 9:22:06 AM Attachments:25.05.19 Open Channels Public Comment.pdfAgriculture Water User Facilities- Policy Memo.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. Thank you for your consideration, please see the attached comment letter. Best, Open Channels Working Group of the Gallatin Water Collaborative -- Katherine Berry, Water Policy Manager Gallatin Watershed Councilwww.gallatinwatershedcouncil.org | katherine@gallatinwatershedcouncil.org Cell: 860-558-3323 To: Bozeman City Commission From: Gallatin Water Collaborative Members Date: May 20th, 2025 Re: The City of Bozeman Unified Development Code Update - Agricultural Water User Facilities Dear Commissioners, The Open Channels Working Group of the Gallatin Water Collaborative is writing to encourage the review of Agricultural Water User Facilities as an ‘Area of Interest’ during the Unified Development Code Update. This update offers a chance to clarify and coordinate development processes in relation to agricultural water user facilities, ensuring that expectations and regulations are aligned for all parties involved. Our Working Group is composed of technical experts with generational knowledge and decades of experience working at the intersection of water and agriculture in the Gallatin Valley. Our shared goal is to support the long-term viability of irrigation ditch infrastructure, which plays a critical role in our regional water system and in supporting community and climate resilience. Irrigation ditch infrastructure helps to recharge our aquifer, mitigate local flooding, contribute to streams critical for trout spawning habitat, and can be utilized in emergency situations. In a previous public comment, we recommended that the Sustainability Board carry forward updates related to these facilities, as they directly support solutions outlined in the Bozeman Climate Plan, including Solution O. Manage and Conserve Water Resources at the watershed scale, and Action 6.N.3 Encourage Local Agriculture and Preservation of Working Lands. We created a policy memorandum (attached as a separate document) which examines agricultural water user facilities in the UDC. This memo outlines relevant regulations, provides background on the region's agricultural water infrastructure, and offers recommendations based on community input and expert knowledge. We invite you to review this document as you consider updates to the Code, and to help determine which community advisory board may be best suited to further explore these recommendations in upcoming work sessions. Thank you for your time and consideration, and continued work to build a more sustainable community. Regards, The Open Channels Working Group Together we are working to unify local efforts to protect, restore and enhance water resources in the Lower Gallatin Watershed. www.gallatinwatercollaborative.org Katherine Berry Water Policy Manager Gallatin Watershed Council Lilly McLane Restoration Director Gallatin Watershed Council Patrick Byorth Chair Gallatin Water Trust Susan Duncan AGAI Board Member Upper Creamery Ditch Becky Clements District Administrator Gallatin Conservation District Rebecca Kurnick Partnership Coordinator Association of Gallatin Agricultural Irrigators Kevin Haggerty Secretary Middle Creek Ditch Company Connor Parrish Project Manager Trout Unlimited Together we are working to unify local efforts to protect, restore and enhance water resources in the Lower Gallatin Watershed. www.gallatinwatercollaborative.org POLICY MEMO To: Gallatin Water Collaborative Members From: Gallatin Watershed Council Date: March 7th, 2025 Re: The City of Bozeman Unified Development Code Update - Agricultural Water User Facilities Executive Summary The City of Bozeman is updating its Unified Development Code (UDC) to align regulations with community plans and strategic goals. Opportunities exist to improve the usability of the code to clarify the property rights associated with agricultural water user facilities, and align expectations in the development process. Background The Unified Development Code (UDC) is part of Bozeman Municipal Code, regulating development and land use decisions such as zoning, subdivision and site development, parking and transportation, affordable housing, and environmental protection. Regulations and processes regarding agricultural water user facilities are outlined primarily in the following sections: ●Sec. 38.310.010. - Agricultural water user facilities, under Article 3. - Land Use, Division 38.310. - General Use Standards. ●Sec. 38.410.060. - Easements, under Article 4. - Community Design, Division 38.410. - Community Design and Elements ●Sec. 38.620.030. - Other provisions, under Article 6. - Natural Resources, Division 38.620. - Watercourse Setbacks. ●Division 38.710. - Submittal Materials and Requirements, under Article 7. - Permits, Legislative Actions and Procedures One of the Gallatin Water Collaborative's three objectives is to ensure that groundwater and surface water supply is managed collaboratively and efficiently to support all water uses. To further this objective, protecting and maintaining irrigation networks has been identified as a priority. Findings of Fact / Issue Analysis Montana Water Law operates on the prior appropriations doctrine, often referred to as, “first in time, first in right.” This principle prioritizes the rights of those who first put water to beneficial use, with criteria such as the purpose of use and point of diversion associated with these rights. Those with the oldest priority dates get all of their allotted volume before those with later dates on their water right get any volume. While the state of Montana owns the water, users who hold water right certificates or permits have the legal right to appropriate it. In the late 1800s, ditch companies built the canal network that crisscross the Gallatin Valley to transport water for irrigation and livestock. A ditch company is an organization formed by landowners who operate and maintain irrigation ditches to divert water from natural sources to POLICY MEMO their properties for agricultural use. Ditch companies and water users manage and maintain the infrastructure necessary for water delivery and at thier own expense. The water rights in a ditch may be held individually or as shared assets among members. To convey water, ditch companies control the water rights in the ditch, a prescriptive easement for the path of the ditch as granted in State Law, and a secondary easement granted in State Law for access for maintenance.Agricultural water user facilities are private property, and legally protected in State Law. Montana Code Annotated (MCA) outlines rights associated with ditches and their easements (70-17-112), the process of abandoning an appropriation right (85-2-404), and others (85-7-2211 and 85-7-2212). Today, agricultural water users continue to operate and maintain almost 1,000 miles of canals and ditches across the Gallatin Valley, servicing thousands of acres of irrigated farmland, spreading the water out, and recharging groundwater to support downgradient well users, spring creeks, and late-season flows in the East Gallatin River. Major agricultural water systems in the County, like Middle Creek Ditch and Farmers Canal, pass through the City of Bozeman. These ditches run along, under, and around Bozeman's streets, homes, parks, and businesses, capturing and conveying elevated groundwater and stormwater. While ditch companies steward, pay the cost, and assume the liability of this system, our whole community benefits. It is common for development to propose impacts to a ditch, including altering ditch alignment and size, requesting reduced easements, and building road crossings. Unfortunately, ditch companies in the Gallatin Valley are small organizations with very limited capacity and are overwhelmed by the pace of growth, citing financial strain and impacts to predictable water conveyance. By many accounts, the relationship between irrigators and developers is challenging and fraught with distrust, frustration, and undesired outcomes. The Unified Development Code, as currently written, presents challenges in aligning the process followed by ditch companies with that of the City when reviewing and permitting development impacts. Based on shared interests, the City of Bozeman would benefit from establishing a more standard and transparent process to protect ditches and their easements in coordination with the ditch companies. Recommendations Opportunities exist to clarify the UDC to create a more robust and transparent development review process. In order to align how the Code is executed on the ground with its intent, we recommend the following. All section references align with the Bozeman Development Code updated draft text as of Oct 29, 2024: Sec. 38.310.010. - Agricultural water user facilities. 1. Clarify that interference with canal or ditch easements is prohibited without consent. Consider including all provisions from MCA 70-17-112 (Interference with Canal or Ditch Easements Prohibited) in order to establish the legal framework for the review POLICY MEMO process and the basis for the application requirements from the outset. Specify that a “person may not encroach upon or otherwise impair any easement for a canal or ditch” unless “the holder of the canal or ditch easement consents in writing.” And that all proposed activities to realign, relocate, cross, divert or discharge water, or otherwise impact the ditch, ditch easement, and water within must be authorized by the holder of the canal or ditch easement. 2. Include that the purpose of this section is also to increase transparency and coordination with holders of canal or ditch easements throughout the development process. Sec. 38.410.060. - Easements. 3. Consolidate regulations about Agricultural Water User Facilities to improve clarity and usability. Considering moving D. Easements for agricultural water user facilities up into Sec. 38.310.010. - Agricultural water user facilities. The fragmentation of regulation pertaining to Agricultural Water User Facilities may create confusion and opportunities for inconsistencies in the code. 4. Clarify conveyance capacity considerations when altering a ditch or installing culverts and crossings. Several factors must be taken into account when evaluating the proposed changes to maintain downstream water rights, and safely convey water through an urbanized area. The ditch geometry and any crossings must be sized to not only carry deeded water, but also stormwater, high groundwater, and dewatering inputs from the entire upstream drainage area. Seasonal fluctuation and flood potential should be carefully considered. It should also be noted that water rights are recorded as a set flow rate and/or a total volume, which can be called at varying flow rates. Sec. 38.620.030. - Other provisions. 5. Remove definition of abandonment. The section states: “An agricultural use, activity or structure is considered abandoned if not used for agricultural purposes for more than 180 consecutive days.” This is incorrect, as abandonment of a ditch is a legal process out of the jurisdiction of the UDC. Include in Sec. 38.310.010. - Agricultural water user facilities that abandonment of a ditch cannot be done without a court hearing and consent from the ditch users. Division 38.710. - Submittal Materials and Requirements. 6. Require the submission of written consent from the holder of the canal or ditch easement in the event the development proposes to interfere with the ditch easement in any way. General POLICY MEMO 7. Coordinate with water users and/or agricultural water user facility's authorized representatives. The City has a vested interest in the function and maintenance of the ditch network, as it can be used to convey stormwater, high groundwater, and mitigate flooding impacts. Connecting with agricultural water users can enhance water management in the City. 8. Require a comprehensive water resources site assessment early on in the development process. An on the ground assessment should be inclusive of three distinct resources: watercourses, wetlands, and agricultural water user facilities. Identifying major site constraints early on in the development process makes good economic sense and helps align all parties toward a common goal from the beginning. 9. Standardize language and ensure consistency throughout the UDC, including terms such as “agricultural water user facilities,” “the holder of the canal or ditch easement,” and “abandonment.” Conclusion The UDC Update offers a chance to clarify and coordinate development processes in relation to ditches, ensuring that expectations and regulations are aligned for all parties involved. Agricultural water user facilities are private property, though they provide significant public benefits and play a crucial role in water resource management within the City. These recommendations support protection of this infrastructure so that ditches can continue to convey water rights, mitigate flooding, recharge the aquifer, and effectively manage stormwater while we grow. Engagement in the UDC Update can help advance the Collaborative’s goal to manage water collaboratively and efficiently to support all water uses through the protection and maintenance of the irrigation networks. Submit feedback to comments@bozeman.net.