Loading...
HomeMy WebLinkAbout08-11-25 Public Comment - K. Berry - Open Channels 8.11.25 Community Development Board Meeting Public CommentFrom:Katherine Berry To:Bozeman Public Comment Subject:[EXTERNAL]Open Channels 8.11.25 Community Development Board Meeting Public Comment Date:Friday, August 8, 2025 10:07:30 AM Attachments:25.08 Ditches Policy Memo UDC.pdf 25.08.04 Open Channels Public Comment- CDB.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 Council www.gallatinwatershedcouncil.org | katherine@gallatinwatershedcouncil.orgCell: 860-558-3323 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. To: Community Development Board From: Gallatin Water Collaborative Open Channels Working Group Date: August 8th 2025 Re: The City of Bozeman Unified Development Code Update - Agricultural Water User Facilities Dear Community Development Board, On behalf of the Open Channels Working Group of the Gallatin Water Collaborative, we urge the Board to recommend updates to the Unified Development Code (UDC) that clarify how agricultural water user facilities are addressed in the development process. As a group of technical experts with generational and professional experience at the intersection of water and agriculture in the Gallatin Valley, we are invested in, and impacted by, the long-term viability of the region’s ditch system. Irrigation ditches snake through the lower Gallatin, carrying water throughout our lands, recharging the aquifer, reducing flood risk, supporting fish and wildlife habitat, and serving as critical infrastructure in times of emergency. Bozeman in particular should recognize the value of this infrastructure. The tailwater from these ditches feeds into the East Gallatin River, which needs that water volume for recreation and wastewater discharge. Development applications frequently propose impacts to ditches, including re-routing, changes in size, reduced easement widths, or new road crossings. Though, in some cases, these proposals have moved forward without full alignment with City code, particularly when it comes to coordination with ditch users. For example, notice or written consent from affected irrigators has occasionally been missing, even though Montana Code Annotated 70-17-112 requires written consent and is referenced in the City’s regulations. However, because this requirement isn't currently listed as a formal submittal item in the development review process, it can easily be overlooked. This type of disconnect has led to a growing problem: developers and city staff are operating under the assumptions of the UDC, while irrigators are relying on the protections outlined in state law. The result is confusion, tension, and inconsistent protections for a system that supports our entire watershed. The goal of our recommendations is to clarify regulations in the code and help establish accurate expectations from the start. The attached policy memo examines agricultural water user facilities in the UDC. It outlines relevant regulations, provides background on the region's agricultural water infrastructure, and offers recommendations based on community input and expert knowledge. We hope you can use these recommendations and draw from your own experiences to address vulnerabilities in the code. Moving these ideas forward can reduce conflicts, improve transparency, and protect vital infrastructure that benefits the entire community. Thank you for your time and consideration, and continued work to build a more sustainable community. Regards, The Open Channels Working Group Katherine Berry Water Policy Manager Gallatin Watershed Council Lilly McLane Restoration Director Gallatin Watershed Council Lila Rickenbaugh Gallatin Water Trust Connor Parrish Project Manger Trout Unlimited Becky Clements District Administrator Gallatin Conservation District Kevin Haggerty Secretary Middle Creek Ditch Company Rebecca Kurnick Partnership Coordinator Association of Gallatin Agricultural Irrigators