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HomeMy WebLinkAbout08-11-25 Public Comment - K. Berry - GWC 8.11.25 Community Development Board Meeting Public CommentFrom:Katherine Berry To:Bozeman Public Comment Subject:[EXTERNAL]GWC 8.11.25 Community Development Board Meeting Public Comment Date:Friday, August 8, 2025 8:59:23 AM Attachments:25.07.21 Community Development Board Public Comment.pdf 25.08 Ditches Policy Memo UDC.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. Hello, The Gallatin Watershed Council submitted these comments for the Community DevelopmentBoard on July 18th anticipating a meeting about environmental regulations on July 21st. We are resubmitting to flag their relevance to the Community Development Boards August 11thagenda. Best, The Gallatin Watershed Council -- Katherine Berry, Water Policy Manager Gallatin Watershed Councilwww.gallatinwatershedcouncil.org | katherine@gallatinwatershedcouncil.org Cell: 860-558-3323 To: The City of Bozeman Community Development Board From: The Gallatin Watershed Council Date: July 18th, 2025 Re: The Unified Development Code Update, Transportation & Environment Working Session Dear Community Development Board, The Gallatin Watershed Council is writing to encourage the Community Development Board to recommend that City Staff critically examine how streams, wetlands, and agricultural water user facilities are protected in site planning and review. With the UDC update, there is an opportunity to provide clarity, consistency, and predictability around water resources for all parties involved in the development process. We recognize that water is a specialized and technical subject. You may be hesitant to weigh in because there is a feeling you need to be a hydrologist, ecologist, or another kind of “-ologist” to meaningfully shape water policy. Even if you do not have a scientific background or expertise in water, you are all experts in planning and development. Your role is essential in shaping how regulations are applied, and there are many areas in the code that influence this. As professionals with firsthand experience evaluating development applications, weighing variance requests, and navigating interdepartmental communication, your insights on the gaps and vulnerabilities in this process are critical. You’ve seen where our code supports good outcomes and where there are pinch points. How can we change our code to better align the process to achieve our community’s desired outcomes? At the June 10th Commission meeting, the Commission directed staff to review in-line edits (Appendix A) and a policy memo (attached) regarding these concerns. These were also previously sent to the Community Development Board on May 5th. We hope you’ll help carry forward their intent, which aligns with three main recommendations: 1.Make the stewardship of streams and wetlands a front-and-center priority throughout the UDC. Help get everyone - City staff, Commissions, Community Board Members, the community, developers - on the same team. Stewardship should be loud and clear, woven into the purpose and intent of the UDC, guiding community design, shaping site planning, and embedded in every step of the development review process. 2.Evaluate water resources at the start of the development process. Start site design with a clear understanding of land and water constraints with on-the-ground assessment. Early evaluation helps avoid costly and contentious conflicts later. The Gallatin Watershed Council guides collaborative water stewardship in the Gallatin Valley for a healthy and productive landscape. www.gallatinwatershedcouncil.org 3. Ensure adequate technical review capacity. City staff with specialized expertise in hydrology, wetland ecology, and stream function can mitigate unintended impacts and improve outcomes. 4. Improve coordination between departments. Parks, Stormwater, Water Conservation, and Planning all share goals around water. Coordination during site planning could allow for integrated solutions that support flood management, natural areas, stormwater control, and habitat protection. 5. Streamline the application and review process. Take advantage of the significant overlap between wetlands and streams in the site investigation, mapping, and application and review process. Develop a “water resources packet” as a standardized submittal requirement. Our code should make good projects easy and bad projects difficult. Stewarding our natural resources is a big piece of this. Thank you for your consideration and work on the UDC Update. Let’s keep Bozeman the Most Livable City and enact policies that provide adequate protections for our water resources from the get-go. Best, The Gallatin Watershed Council The Gallatin Watershed Council guides collaborative water stewardship in the Gallatin Valley for a healthy and productive landscape. www.gallatinwatershedcouncil.org Appendix A: In-line Edits Article 1. - GENERAL PROVISIONS DIVISION 38.100. - IN GENERAL Sec. 38.100.040. - Intent and purpose of chapter. A. The intent of this chapter is to protect the public health, safety and general welfare; to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; to implement the city's adopted land use plan and community values outlined in the City’s guiding documents; and to meet the requirements of state law. Sec. 38.100.040. - Intent and purpose of chapter. C.5. Providing standards that promote natural resource stewardship by: a. Protecting and enhancing critical and sensitive lands, like wetlands, floodplains, and watercourses. b. Encouraging compatibility with the natural potential of an area. c. Preventing cumulative degradation of natural resources that are impacted on- or off-site. d. Encouraging multi-purpose open space areas that consider design elements like stormwater facilities, parkland dedication, sensitive lands protection, water conservation, and more. e. Safeguarding public health and safety, and public and private infrastructure from proposed land use changes that may result in increased flood potential, erosion, or water quality degradation. Article 5. - PROJECT DESIGN DIVISION 38.500. - INTRODUCTION Sec. 38.500.010 - Purpose. This article implements Bozeman's land use plan. Overall, this article: A. Provides clear objectives for those embarking on the planning and design of development projects in Bozeman; B. Provides guidance to safeguard our shared natural resources, such as wetlands and watercourses. C. Preserves and protects the public health, safety, and welfare of the citizens of Bozeman The Gallatin Watershed Council guides collaborative water stewardship in the Gallatin Valley for a healthy and productive landscape. www.gallatinwatershedcouncil.org D. Ensures that new commercial and multi-household development is of high quality and beneficially contributes to Bozeman's character; E. Ensures that new developments within existing neighborhoods are compatible with, and enhance the character of Bozeman's neighborhoods; F. Promotes an increase in walking and bicycling throughout the City; G. Enhances the livability of Bozeman's residential developments; H. Maintains and enhances property values within Bozeman. DIVISION 38.510. - SITE PLANNING AND DESIGN ELEMENTS Sec. 38.510.010. - Purpose. A. Preserve and protect the public health, safety, and welfare of the citizens of Bozeman. B. To promote thoughtful layout of buildings, parking areas, and circulation, service, landscaping, and amenity elements that enhances Bozeman's visual character, promotes compatibility between developments and uses, and enhances the function of developments. C. Protect our natural resources by identifying site constraints to maintain ecological function and services like aquifer storage, flood control, water conveyance, nutrient filtration, and provide for fish and wildlife habitat. D. Also see the individual "intent" statements for each section in this division Sec. 38.510.020. - Applicability and compliance. The provisions of this division apply to all development within Bozeman, except single-, two-, three-, and four-unit dwellings, townhouses, and rowhouses with four or fewer dwelling units on individual lots. The excepted dwellings are subject to the form and intensity standards in article 2 and natural resource protections in Article 6. Also: Section 38.510.0X0. - Land Constraints and Sensitive Lands Protection. A. Intent a. Maintain ecological function and services such as aquifer storage, flood control, water conveyance, pollution removal, and fish and wildlife habitat. The Gallatin Watershed Council guides collaborative water stewardship in the Gallatin Valley for a healthy and productive landscape. www.gallatinwatershedcouncil.org b. Protect public health and safety from proposed land use that may result in flood risk, increased erosion, water quality degradation, and decreased recreational opportunities. c. Mitigate adverse impacts to public and private infrastructure from increased flood or erosion risk due to land use change. d. Comply with the community’s value of clean and abundant water, wildlife habitat, agricultural lands, and open space to ensure development proposals align with the vision of our City. e. Safeguard lands which build resilience in a changing climate, buffering our communities, infrastructure, fish and wildlife, and agricultural producers from flood or drought impacts and increased temperatures. f. Align parklands and open space dedication with valued sensitive lands to provide public access to natural areas. g. Steward the waters that pass through the City so they can serve the greater Gallatin Watershed community of people and wildlife. For additional regulations pertaining to natural resources, see Article 6. Article 7. - PERMITS, LEGISLATIVE ACTIONS AND PROCEDURES DIVISION 38.710. - SUBMITTAL MATERIALS AND REQUIREMENTS Sec. 38.700.170. - Development review committee (DRC) and administrative design review staff (ADR). A. Development review committee procedures established. 1. The DRC must at a minimum be composed of the following personnel: city engineer, fire marshal, the streets superintendent, the sanitation superintendent, the water/sewer superintendent, water resource specialist, the community development director and the building official, or designees thereof, and other such personnel as the community development director deems necessary. The Gallatin Watershed Council guides collaborative water stewardship in the Gallatin Valley for a healthy and productive landscape. www.gallatinwatershedcouncil.org POLICY MEMO To: Community Development Board From: Open Channels Working Group Date: August 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 their 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 over 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. Clarify that all agricultural water user facilities are associated with an existing easement, established and maintained by the ditch company or authorized representative. Remove the minimum easement width (1.a(2)) and all language indicating that the developer is to establish a new easement on an agricultural water user facility. It is the responsibility of the developer to contact the water users and/or agricultural water user facility's authorized representatives to identify the extent of the existing easement. Developers must then follow the established process to request any proposed impacts, impairments, or encroachments on the facility or its easement per MCA 70-17-112 (Interference with Canal or Ditch Easements Prohibited). 4. 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. 5. 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. 6. 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 per MCA 85-2-404, Abandonment of an POLICY MEMO Appropriative Right. 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. 7. 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 8. 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 has been used to convey stormwater, high groundwater, and mitigate flooding impacts. Connecting with agricultural water users can enhance water management in the City. 9. 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. 10. 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.