HomeMy WebLinkAbout05-22-25 Public Comment - H. Harris - Comments on Agricultural Water Users facilities sections of the Bozeman Unified Development CodeFrom:Harley Harris
To:Bozeman Public Comment
Cc:Lila Rickenbaugh; Patrick Byorth; Megan Casey; Sharon Brodie; Tammy Swinney
Subject:[EXTERNAL]Comments on Agricultural Water Users facilities sections of the Bozeman Unified Development Code
Date:Tuesday, May 20, 2025 2:28:50 PM
Attachments:GWT Redline with Cover Letter.docx
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Please find attached additional/supplemental comments of the Gallatin Water Trust on the
above, submitted in connection with the City’s ongoing review of the Unified DevelopmentCode.
Thank you,
Harley Harris for the Gallatin Water Trust
May 20, 2025
City of Bozeman
City Commission and Utilities Department
121 N. Rouse Ave.
Bozeman, MT 59715
Re: Supplemental Comments on Unified Development Code Revisions – Redline of Water
User Facilities Sections
Dear Members of the Bozeman City Commission and Utilities Department:
The Gallatin Water Trust (GWT) appreciates this opportunity to provide comments on
the proposed updates to the Bozeman Unified Development Code. GWT has previously
provided comments and a redline on the Water Adequacy section of the Code and has more
recently joined in on the comments submitted by the Gallatin Water Collaborative pertaining to
the Agricultural Water User Facilities section of the Code. These comments are intended to be
supplemental to the Collaborative’s comments, and to provide specific redline examples to
assist the Commission and City staff to understand and, if you choose, implement our
comments. We will not restate here the points made in the Collaborative’s very thorough Policy
Memo. We appreciate your consideration of these comments.
Sincerely,
Harley Harris for
The Gallatin Water Trust
Cc: GWT Board
Gallatin Water Collaborative
Sec. 38.310.010. - Agricultural water user facilities.
A. Purpose.
1. The purpose of this section is to recognize and protect property rights established
through water rights issued by the State of Montana and the ditch rights and rights of
conveyance associated with agricultural water user facilities. Development of land has
potential to negatively impact such rights and the function of such facilities. The state
has adopted requirements including but not limited to MCA 70-17-112, 85-7-2211 and
85-7-2212, to protect agricultural water user facilities and prevent interference with
them.
2. The realignment or relocation of irrigation ditches, diversion structures, and pipelines is
prohibited unless the requirements of this section are met.. If an agricultural water user
facility or point(s) of diversion are proposed to be realigned or relocated, the
developer's professional engineer must certify, prior to final plat or final plan approval,
that:
a. The water entering and exiting the realigned or relocated agricultural water user
facility is the same quality and amount of water that entered or exited the facility
prior to realignment or relocation:
b. The owner of such agricultural water user facility or point(s) of diversion has
agreed in writing to such changes; and
c. Any change in a point of diversion has been approved by the Montana
Department of Natural Resources and Conservation
B. Notice requirements concerning agricultural water user facility:
The requirements of this section only apply to a proposed development where an agricultural
water user facility is present on-site, or on an adjoining property within 100 feet of the exterior
boundaries of the proposed development.
1. The developer must:
a. Provide written notice to the applicable water users and/or agricultural water user
facility's owners or authorized representatives of the proposed development,
b. Provide them with a copy of the proposed development layout,
c. Provide a description of any proposed modifications or anticipated adverse effects to
the agricultural water user facility,
d. Provide a description of any mitigation proposed to remedy such adverse effects,
and
e. Provide the water users and/or agricultural water user facility's owners or authorized
representatives with a proposed form of agreement which, if they accept it, would
constitute their approval of the developers plan and the conditions of such approval.
2. Notice to the water users and/or agricultural water user facility's owners or authorized
representatives must be as follows.
a. In the event the agricultural water user facility conveys water rights for an incorporated
or otherwise organized group of water users such as a ditch or canal company or water
users association, written notice must be sent to the board of directors or executive
officer of the organized group at the address listed on the water rights abstract. The
notice must request that the board or officer provide the notice to any of its members
with a contract interest in water being conveyed in the agricultural water user facility
that is present on-site. In the event the agricultural water user facility conveys water
rights for individual water rights owners, the developer must give written notice to all
water users.
b. In the event the agricultural water user facility conveys water rights in a combination of
the scenarios described in 2.a and 2.b above, the developer must give written notice to
all identified water right owners. The notice must be sent to the water rights owner at
the address listed on the water rights abstract obtained from the official water rights
records of the Montana Department of Natural Resources and Conservation. The pre-
application or concept plan submittal must include the names and contact information
for the water users and agricultural water user facility's authorized representatives that
were provided with written notice, and the date they were provided written notice; and
a copy of the notice sent.
3. If the water users and/or agricultural water user facility's owners or authorized
representatives have agreed to the developers proposal, that fact and the associated agreement
shall be provided with the preapplication or concept plan submittal. If the developer’s proposal
has not been accepted, that fact shall be included in any subsequent submittal by the developer
to the city.
C. Maintenance of agricultural water user facilities.
Persons holding water rights, agricultural water user facility owners, or their representatives
may conduct necessary maintenance such as cleaning and removal of accumulated silt,
branches, trees, sticks and other debris as well as repair or restoration activities consistent with
state law and the terms of any applicable easement or other authority.
D. Easements.
Agricultural water user facilities may also be subject to 38.410.060.
Sec. 38.410.060. - Easements.
*****
D. Easements for agricultural water user facilities.
1. Except as noted in 2. below, the developer must establish appropriate agricultural water
user facility easements that:
a. Are in locations of appropriate topographic characteristics and sufficient width to
allow the physical placement and unobstructed maintenance of open ditches or
below ground pipelines. Easements may be required when an agricultural water
user facility is on adjacent property but an easement necessary to protect the
function of the agricultural water user facility crosses onto the property to be
developed. The easement must facilitate the delivery of water for irrigation to
persons and lands legally entitled to the water under an appropriated water right
or permit of an irrigation district or other private or public entity formed to
provide for the use of the water right;
1) The easements must ensure the conveyance of water through the land
to be developed to lands adjacent to or beyond the development's
boundaries in quantities and in a manner consistent with historic and
legal rights; and
2) A minimum easement width of ten feet is required on each side of
irrigation canals and ditches.
b. Are a sufficient distance from the centerline of the agricultural water user facility
to allow for construction, repair, maintenance and inspection of the ditch or
pipeline; and
c. Prohibit the placement of structures or the planting of vegetation other than
grass within the agricultural water user facility easement without the written
permission of the facility owner.
d. Prior to establishing such easements the developer shall provide the owner of
such easement of agricultural water user facility with notice of the same and a
minimum of 60 days within which to object or provide comments on the
proposed easement.
2. The developer need not establish agricultural water user facility easements as provided
above if the following provisions were met or will be met via the subdivision or site plan
process:
a. The average lot size is one acre or less and the developer provides for disclosure,
in a manner acceptable to the review authority, that adequately notifies
potential buyers of lots that are classified as irrigated land and may continue to
be assessed for irrigation water delivery even though the water may not be
deliverable; or
b. The water rights are removed or the process has been initiated to remove the
water rights from the subdivided or developed land. If the water rights have been
or will be removed from the land within the development it must be so noted
with the preliminary plat or plan submittal. If removal of water rights is not
complete upon filing of the final plat or approval of the final site plan, the
developer must provide written notification to prospective buyers of the intent
to remove the water right and must document that intent, when applicable, in
agreements and legal documents for related sales transactions.
c. Easements may be required to maintain an agricultural water user facility if the
facility conveys water to off-site users.
3. Stormwater from a development must not be discharged to an agricultural water user
facility without written approval from the owner of the facility and corresponding
stormwater conveyance easements.
4. If the developer demonstrates to the city that easements have been extinguished
pursuant to state law, or the holder of the easement consents in writing to the
extinguishment, or the easement is not required per 2. above, the developer may
remove ditch laterals from within the subdivision. If a developer demonstrates that the
easements have been extinguished the developer shall certify to the city that it first
provided notice of the same to the owner of the facility and/or easement that is alleged
to have been extinguished and provided the owner with 60 days within which to provide
comments on or object to the developer’s proposed course of action. If the owner
objects or provides comments, the developer shall include such objection or comments
in its submittal to the city. If the owner of the easement has consented in writing to the
developer’s proposed course of action, the developer shall provide the city with a copy
of such agreement.
5. If agricultural water user facility easements are required, a notice must also be recorded
with a final plat or prior to final plan approval, stating that the easements are subject to
the requirements of Section 70-17-112, MCA restricting interference with canal or ditch
easements and that irrigation works are subject to Section 85-7-2211 and 85-7-2212,
MCA regarding duties and liability. The notice must include language to assure the duties
are binding upon all successors in interest and remain in effect until such time that the
agricultural water user facility is abandoned in accordance with the requirements of
Montana Law or alternative requirements are agreed to in writing by all applicable
parties. The easements must be prepared as documents separate from a final plat but
may be referenced on a final plat.
6. Any other mitigation of impacts to an agricultural water user facility identified during
development review must be coordinated with any required easement. Mitigation shall
be reasonable, based on site-specific conditions, and shall be developed with
consideration of comments received from the water users pursuant to 38.310.010.B.
