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Irrigation Change Application No. 41H 30103245 Technical Report Page 1 of 7
Irrigation Change Application Technical Report
Technical Report Compiled by: Brent Zundel, Water Resource Specialist
Date: February 5, 2016
This Technical Report IS: A collection of facts that the DNRC has gathered independent of what
was provided in the application materials. These data will be used later in the process to analyze
the criteria.
This Technical Report IS NOT: An analysis or discussion of whether the application meets the
criteria (85-2-402, MCA).
Application Information:
Applicant name: Norton Properties LLC, Norton Ranch Homes LLC, and J&D Family LP
Consultant name: DMS Natural Resources LLC
Application number: 41H 30103245
Source: West Gallatin River
Water right numbers proposed for change:
TABLE 1: Summary of Water Rights Proposed for Change
Water Right
Number
(Basin 41H)
Purpose Flow
Rate
(GPM)
Period
of Use
Point of
Diversion1
Place of Use Priority
Date
Acres
30023118 Irrigation 372.5 6/1 –
10/31
SWNWNW,
Sec. 11,
T03 S, R04 E
E½SW, W½SE,
SENW, & SWNE,
Sec. 9, T02 S, R05 E
10/15/1866 237.27
30023119 Irrigation 168.75 6/1 –
10/31
6/15/1881 237.27
30023120 Irrigation 561 5/1 –
10/1
6/1/1867 237.27
NOTES: 1Farmer’s Canal headgate.
Change description: This application proposes to change the place of use (POU) of irrigation water that was
historically used on 112.2 acres of the Norton Ranch in Section 9, T02 S, R05 E, Gallatin County, just west of
Bozeman. It also seeks to add a place of storage. Water was historically diverted from the West Gallatin River
into the Famer’s Canal and thence into the E. Minder Lateral before being applied to the POU. This application
would change the POU to the City of Bozeman Sports Complex off Flanders Mill Road and add an irrigation
reservoir. Water would be conveyed through Farmer’s Canal, thence into the Maynard Border Ditch, and finally
applied to the new POU.
Other: The remaining 26.4 acres under the subject water rights are being retired out of irrigation to provide
mitigation for municipal use for a Big Sky-area development in Application to Change an Existing Irrigation Water
Right No. 41H 30102910 (Norton-Bostwick). That mitigation plan has already been approved as part of permit
41H 30025398 by Bostwick Properties Inc.
Irrigation Change Application No. 41H 30103245 Technical Report Page 2 of 7
Information that will be used for criteria analysis:
Historic Use (ARM 36.12.1902)
DNRC employee who compiled this section: Brent Zundel, Water Resource Specialist
Water right numbers: 41H 30023118, 41H 30023119, and 41H 30023120
Supplemental water rights: 41H 30023118, 41H 30023119, and 41H 30023120 are supplemental because they share the
same point of diversion, purpose, and POU. Also supplemental are groundwater claims 41H 138898-00, 138899, 138902,
and 138903, which are for irrigation from waste and seepage water, because their claimed POU overlaps with the POU of
the subject water rights. However, the groundwater claims are not included in this change because the Applicant’s historic
use description shows that the POU of these four groundwater rights doesn’t overlap with the three subject water rights.
Water Resources Survey acres found: 240
Note: The Gallatin County Water Resources Survey indicates that all of the pre-1973 POU was irrigated by water
from Farmer’s Canal and from private irrigation.
USDA Photo 179-270R, dated 1979, maximum acres found: 240
NAPP-8376 Photo 066, dated 8-1995, maximum acres found: 240
Photo 2005 NAIP, dated 2005, maximum acres found: 240
Maximum historic acres for this water right: 138.63
Note: 237.27 acres were defined by the Water Court during the 2015 split. The Applicant further clarifies in this
application that 138.63 acres have been irrigated since completion of Change Authorization 42H 929502 in 1988.
Maximum historic flow rate for water rights: 1,102.25 GPM. The pump capacity at the field as of 1988 was 800 GPM. The
pump was capable of delivering some water from all three rights: 41H 30023118, 41H 30023119, and 41H 30023120. A loss
of 302.25 GPM between the headgate and the field (8.6 miles) is reasonable. Ditch loss is shared among many users.
TABLE 2: Historic Flow Rates
Water Right Number
( - )
Flow Rate
(GPM)
41H 30023118 372.5
41H 30023119 168.75
41H 30023120 561
TOTAL = 1,102.25
Historic consumptive use (volume) for all three water rights: 204.78 AF. All three water rights were used on the same
138.63 acres and all priority dates are of sufficient seniority such that none have been subject to call. Farmer’s Canal shares
were used in the early season to provide conveyance water. Therefore, all of the consumptive use can be attributed to the
three water rights proposed for change. Historic consumptive use is calculated as follows:
Crop Consumptive Use
Bozeman Experiment Farm weather station Irrigation Water Requirements (IWR) for alfalfa = 16.84 inches (in)
Gallatin County Management Factor (1973 – 2006 MF for post-1988 change conditions) = 92.1%
16.84 in / 12 in per ft * 0.921 = 1.292 ft per acre
1.292 ft per acre * 138.63 acres = 179.18 AF
Water Applied to Field
70% efficiency for sprinkler systems
Water applied to field = consumptive use / 70% efficiency = 179.18 AF / 0.70 = 255.96 AF
Irrigation Change Application No. 41H 30103245 Technical Report Page 3 of 7
Irrecoverable Losses
10% loss for sprinkler systems
Irrecoverable loss = water applied to field * irrecoverable loss percent = 255.96 AF *0.10 = 25.60 AF
Total Historic Consumptive Volume on 138.63 acres
Total historic consumptive volume = crop consumptive use + irrecoverable loss = 179.18 AF + 25.60 AF = 204.78 AF
Table 3 below specifies the consumptive volume associated with each right according to the right’s flow rate proportional
to the total flow rate.
TABLE 3: Consumptive Volume
Water Right Number
( - )
Percent of Total Flow
(%)
Consumptive Volume
(AF)
41H 30023118 33.8 69.22
41H 30023119 15.3 31.33
41H 30023120 50.9 104.23
TOTAL = 100 204.78
Historic diverted volume for all three water rights: 444.50 AF. The Applicant provided diverted volume calculations as
Exhibit 10 of the application. The Applicant calculated diverted volume from the following three components: (1)
conveyance losses over the 72-day irrigation period, (2) excess water spilled to Aajker Creek, and (3) the volume applied to
the field (255.96 AF). Conveyance losses were calculated for two 36-day periods: an early season when all rights, including
Farmer’s Canal rights, are in priority (June – July 17) and a late season (July 18 – October) when only the Applicant’s rights
remain in priority and they have ceased using Farmer’s shares.
Conveyance losses in the Farmer’s Canal and the E. Minder lateral were attributed to the subject water rights in proportion
to the other rights and shares in the ditch. Conveyance losses were calculated according to the Department’s 2012 historic
diverted volume memo. A general description of the calculations is provided below:
Diverted volume = portion of total conveyance losses + water spilled to Aajker Creek + irrigation applied volume
Portion of total conveyance losses = 100.8 AF
(91 AF lost in Farmer’s Canal and 9.8 AF lost in E. Minder during late season. Applicant’s canal shares
account for all early season ditch loss.)
Water spilled to Aajker Creek = total flow of water rights delivered to E. Minder – irrigation application (i.e., pump
capacity) – E. Minder late season ditch loss
= [(2.46 CFS – 1.78 CFS) * 1.983 AF/CFS-day * 72.6 days] – 9.8 AF = 87.7 AF
Diverted volume = 100.8 + 87.7 + 255.96 = 444.50 AF
Table 4 below specifies the diverted volume associated with each right according to the right’s flow rate proportional to the
total flow rate.
TABLE 4: Historic Diverted Volume
Water Right Number
( - )
Percent of Total Flow
(%)
Diverted Volume
(AF)
41H 30023118 33.8 150.24
41H 30023119 15.3 68.01
41H 30023120 50.9 226.25
TOTAL = 100 444.50
New (proposed) diverted volume for this water right: 405.50 AF. The Applicant proposes to continue diverting the entire
volume under these water rights, with the exception of no longer diverting the 39 AF that are proposed to be left instream
for mitigation under pending change application 41H 30102910. The water will continue to be diverted into the Farmer’s
Canal, but instead of being diverted into the E. Minder Lateral, it will be diverted into the Maynard Border Ditch, which is
Irrigation Change Application No. 41H 30103245 Technical Report Page 4 of 7
located approximately 1 mile farther down Farmer’s Canal. Water will be applied to the City’s property at the new Sports
Complex.
In total, the full volume that was historically diverted minus the volume changed to mitigation will be diverted: 444.5 – 39 =
405.5 AF. Each right will divert a portion of that volume, according to the proportion of the right’s flow rate to the total flow
rate. Table 5 below specifies the diverted volume associated with each right.
TABLE 5: New (Proposed) Diverted Volume
Water Right Number
( - )
Percent of Total Flow
(%)
Diverted Volume
(AF)
41H 30023118 33.8 137.06
41H 30023119 15.3 62.04
41H 30023120 50.9 206.4
TOTAL = 100 405.5
Adverse Effect (ARM 36.12.1903)
DNRC employee who compiled this section: Brent Zundel, Water Resource Specialist
Historic consumptive use (volume): 204.78 AF (total for all three water rights).
Proposed new use consumptive use (volume): 165.26 AF. This application contains two consumptive use components: (1)
irrigation of 65 acres of turf grass and (2) the addition of a place of storage. The Department considers net Irrigation Water
Requirements (IWR) for turf grass to be fully consumptive. Using the USDA NRCS Irrigation Water Requirements (IWR)
Program, pasture grass requires 18.27 in for a dry year with 80 percent occurrence.
Consumed volume = 18.27 in * 1 ft/12 in * 65 acres = 98.96 AF
The Applicant proposes to fill the irrigation reservoir twice per season. Additionally, they request to extend the period of
use to March 1 – November 30, outside the unchanged period of diversion, which would allow them to apply stored water
during warm spring and fall days. The volume used to fill the pond twice will be consumed from the system, as will
evaporation. Evaporation is calculated after Potts (1988) using a 75%Eo value of 3.15 ft for the Bozeman weather station.
According to the application, the pond has a 30 AF capacity with 2 acres of surface area and a maximum depth of 30 ft.
Two fills = 2 * volume = 2 * 30 = 60 AF
Annual evaporation = surface area * 75%Eo = 2 acres * 3.15 ft = 6.30 AF
Thus, the total consumed volume for the proposed new use is 98.96 + 60 + 6.30 = 165.26 AF.
The new consumptive use of 165.26 AF is less than the historic consumptive use of 204.78 AF.
Note: 39 AF of consumed volume will be left instream in the West Gallatin River for mitigation purposes under
pending change 41H 30102910. This application proposes to change the POU of 165.26 AF of consumed volume, so
the total consumptive volume being changed from these rights is therefore 204.26, which is less than the total
historic consumptive use. All acreage that was historically irrigated on the Norton Ranch will be retired and the
POU will not be irrigated with the supplemental groundwater claims or Farmer’s Canal shares.
The following are hydraulically connected surface waters for the purpose of evaluating return flows: Aajker and Baxter
Creeks.
Irrigation Change Application No. 41H 30103245 Technical Report Page 5 of 7
Monthly volume that returned to hydraulically connected surface waters under historic practices:
TABLE 6: Historic Return Flow Calculations for 138.63 Acres
IWR
(in)
Management
Factor,
1973-2006
(0.921)
Historic CU
on 138.63
acres
(AF)
Applied Volume
on 138.63 acres
(AF)
Irrecoverable
Loss, Sprinkler
(10%)
Return
Flows
(AF)
Jan 0.00 0.921 0.00 0.00 0.00 0.00
Feb 0.00 0.921 0.00 0.00 0.00 0.00
Mar 0.00 0.921 0.00 0.00 0.00 0.00
Apr 0.00 0.921 0.00 0.00 0.00 0.00
May 0.32 0.921 3.40 4.86 0.49 0.97
Jun 4.17 0.921 44.37 63.38 6.34 12.68
Jul 6.14 0.921 65.33 93.33 9.33 18.67
Aug 5.26 0.921 55.97 79.95 8.00 15.99
Sep 0.96 0.921 10.21 14.59 1.46 2.92
Oct 0.00 0.921 0.00 0.00 0.00 0.00
Nov 0.00 0.921 0.00 0.00 0.00 0.00
Dec 0.00 0.921 0.00 0.00 0.00 0.00
TOTAL = 16.85 – 179.28 256.12 25.61 51.22
Monthly volume that will return to hydraulically connected surface waters under new practice and loss of return flows as
a result of the proposed change:
TABLE 7: Proposed (New) Return Flow Calculations for 26.4 Acres (Retirement of 112.23 Acres)
IWR
(in)
Management
Factor,
1973-2006
(0.921)
Historic CU
on 26.4 acres
(AF)
Applied Volume
on 26.4 acres
(AF)
Irrecoverable
Loss, Sprinkler
(10%)
Return
Flows
(AF)
Loss of Return
Flows from
Historic Conditions
(AF)
Jan 0.00 0.921 0.00 0.00 0.00 0.00 0.00
Feb 0.00 0.921 0.00 0.00 0.00 0.00 0.00
Mar 0.00 0.921 0.00 0.00 0.00 0.00 0.00
Apr 0.00 0.921 0.00 0.00 0.00 0.00 0.00
May 0.32 0.921 0.65 0.93 0.09 0.19 0.78
Jun 4.17 0.921 8.45 12.07 1.21 2.41 10.27
Jul 6.14 0.921 12.44 17.77 1.78 3.55 15.12
Aug 5.26 0.921 10.66 15.23 1.52 3.05 12.94
Sep 0.96 0.921 1.95 2.78 0.28 0.56 2.36
Oct 0.00 0.921 0.00 0.00 0.00 0.00 0.00
Nov 0.00 0.921 0.00 0.00 0.00 0.00 0.00
Dec 0.00 0.921 0.00 0.00 0.00 0.00 0.00
TOTAL = 16.85 – 34.14 48.77 4.88 9.75 41.47
The proposed change to retire 112.23 acres of irrigation will result in the loss of 41.75 AF of return flows (51.22 – 9.75 =
41.47 AF).
Irrigation Change Application No. 41H 30103245 Technical Report Page 6 of 7
Other: The Applicant has proposed to retire/withdraw groundwater claims 41H 138898-00, 138899, 138902, and 138903 to
alleviate the loss of return flows. These rights are for waste and seepage and have a claimed POU that is supplemental to
the three claims being changed in this application. The Applicant submitted historical use evidence that these rights were
exercised independently and on a distinct POU from that of the subject water rights.
Right 41H 138898-00 claimed 70 acres and 1.25 CFS; 138989 claimed 17 acres and 1.25 CFS; 138902 claimed 45 acres and
1.25 CFS; 135903 claimed 18 acres and 1.25 CFS. The Applicant submitted evidence that these were historically used in
combination on 44.5 acres in the SWNE and portions of the N½NWSE of Section 9. The Gallatin County Water Resources
Survey confirms historical use as of its publication in 1953. Aerial imagery from 1981, 1995, and 2001 further support
historical use on 44.5 acres.
The Applicant proposes to fully retire or withdraw these rights. Under the proposal, water would no longer be diverted and
would instead be rerouted to drain the property, with water being conveyed to Aajker and Baxter Creeks (see Exhibit 22 in
the application). No irrigation would take place on the historic POU.
Because these are existing statements of claim with no subsequent changes, their historic use must be evaluated prior to
July 1, 1973, pursuant to ARM 36.12.1902(1)(a). Thus, the following calculations are made for historic use on 44.5 acres.
Crop Consumptive Use
Bozeman Experiment Farm weather station Irrigation Water Requirements (IWR) for alfalfa = 16.84 in
Gallatin County Management Factor (pre-July 1, 1973) = 73.5%
16.84 in / 12 in per ft * 0.735 = 1.03145 ft per acre
1.03145 ft per acre * 44.5 acres = 45.90 AF
Water Applied to Field
65% efficiency for graded border with 0.75 – 1.5% slope
Water applied to field = consumptive use / 65% efficiency = 45.90 AF / 0.65 = 70.61 AF
Irrecoverable Losses
5% loss for flood systems (claims are actually controlled subirrigation)
Irrecoverable loss = water applied to field * irrecoverable loss percent = 70.61 AF *0.05 = 3.53 AF
Total Historic Consumptive Volume on 44.5 acres
Total historic consumptive volume = crop consumptive use + irrecoverable loss = 45.90 AF + 3.53 AF = 49.43 AF
Total Historic Diverted Volume = 70.61 AF
Note: The remaining 26.4 acres on this POU are proposed for retirement under a separate pending change application, 41H
30102910.
Adequacy of Diversion (ARM 36.12.1904)
DNRC employee who compiled this section: Brent Zundel, Water Resource Specialist
No information relating to the adequacy of the diversion has been compiled in addition to what was submitted on the
application.
Beneficial Use (ARM 36.12.1801)
DNRC employee who compiled this section: Brent Zundel, Water Resource Specialist
No information relating to the beneficial use has been compiled in addition to what was submitted on the application.
Irrigation Change Application No. 41H 30103245 Technical Report Page 7 of 7
Possessory Interest (ARM 36.12.1802)
DNRC employee who compiled this section: Brent Zundel, Water Resource Specialist
This application includes a copy of a Memorandum of Agreement for Norton Ranch Subdivision Water Adequacy
Requirements between the Applicant and the City of Bozeman. This memorandum indicates that the City consents to the
transfer of the water rights to the proposed new POU at the City Sports Complex upon successful completion of the water
right change process.
July 18, 2019 Page 1 of 16
STATE OF MONTANA
DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
1424 9TH AVENUE P.O.BOX 201601 HELENA, MONTANA 59620-1601
CHANGE AUTHORIZATION
Application From:
Change Description:
Volume:
Acres:
2.46 CFS
336.17 AC-FT
Number(s) Changed:41H-138898
41H-138899
41H-138902
41H-138903
41H-30023118
41H-30023119
41H-30023120
UPON FINDING THE REQUIREMENTS OF SECTION 85-2-402, MCA HAVE BEEN MET, APPLICATION TO
CHANGE WATER RIGHT NUMBER 41H-30103245 SUBMITTED ON JUNE 7, 2016, IS APPROVED.
SUBJECT WATER RIGHTS
THE APPROPRIATOR IS AUTHORIZED TO CHANGE THE PLACE OF USE OF, ADD A PLACE OF STORAGE TO,
AND CHANGE THE PERIOD OF USE OF STATEMENTS OF CLAIM 41H 30023118, 41H 30023119, AND 41H
30023120 (THE "SUBJECT WATER RIGHTS"). UNDER THESE THREE WATER RIGHTS, THE APPROPRIATOR
MAY DIVERT UP TO 297.92 ACRE-FEET OF WATER AT A COMBINED FLOW RATE OF 2.34 CUBIC FEET PER
SECOND FROM THE WEST GALLATIN RIVER AT THE FARMER'S CANAL HEADGATE IN THE SWNWNW OF
SECTION 11, T03 S, R04 E, GALLATIN COUNTY. THE NEW PLACE OF USE IS 58.86 ACRES OF IRRIGATION AT
THE CITY OF BOZEMAN SPORTS COMPLEX, LOCATED IN THE W2NW OF SECTION 3, T02 S, R05 E, GALLATIN
COUNTY. THE SPORTS COMPLEX WILL BE BOUNDED BY BAXTER LANE, FLANDERS MILL ROAD, OAK
STREET, AND COTTONWOOD ROAD. THE APPROPRIATOR IS ALSO AUTHORIZED TO ADD A 14.3-ACRE-
FOOT IRRIGATION RESERVOIR IN THE SESWNW OF SECTION 3, T02 S, R05 E. NO CHANGES ARE MADE TO
THE PERIOD OF DIVERSION, BUT THE PERIOD OF USE IS CHANGED TO MAY 1 TO NOVEMBER 30 TO ALLOW
ADDITIONAL FLEXIBILITY IN USING STORED WATER.
GROUNDWATER CLAIMS
THE APPROPRIATOR IS AUTHORIZED TO CHANGE THE PURPOSE, PLACE OF USE, AND POINT OF
DIVERSION OF STATEMENTS OF CLAIM 41H 138898-00, 41H 138899-00, 41H 138902-00, AND 41H 138903-00
(THE "GROUNDWATER CLAIMS"). THE APPROPRIATOR SHALL RETIRE 34.44 ACRES FROM IRRIGATION
UNDER THE GROUNDWATER CLAIMS IN ORDER TO PROVIDE MITIGATION FOR THE LOSS OF RETURN
FLOWS FROM THE SUBJECT WATER RIGHTS. UNDER THE GROUNDWATER CLAIMS, 38.25 ACRE-FEET AT A
RATE OF 56.60 GALLONS PER MINUTE SHALL BE LEFT IN THE SUBSURFACE AS GROUNDWATER AND NO
LONGER DIVERTED FROM JUNE 1 TO OCTOBER 31. THE NEW PLACE OF USE IS THE SAME AS THE NEW
POINT OF DIVERSION: TWO POINTS, ONE ON AAJKER CREEK AND ONE ON BAXTER CREEK, AT THE
DOWNSTREAM END OF NORTON PROPERTIES. THESE POINTS ARE LOCATED IN THE NWSENW AND
NESWNE OF SECTION 9, T02 S, R05 E, FOR AAJKER AND BAXTER CREEKS, RESPECTIVELY.
Change Application #: 41H-30103245
Flow Rate:
Authorization Limits
Water Right
COMPLETION DEADLINE
THE DEADLINE TO COMPLETE THIS AUTHORIZATION AND FILE A PROJECT COMPLETION NOTICE FOR
CHANGE OF APPROPRIATION WATER RIGHT (FORM 618) IS DECEMBER 31, 2039 . IF YOU CANNOT
MEET THE DEADLINE, FILE A FORM 607, APPLICATION FOR EXTENSION OF TIME, BY DECEMBER 31,
2039 . OTHERWISE, THE AUTHORIZATION IS VOID.
66.81 ACRES
STATEMENT OF CLAIM
STATEMENT OF CLAIM
STATEMENT OF CLAIM
STATEMENT OF CLAIM
STATEMENT OF CLAIM
STATEMENT OF CLAIM
STATEMENT OF CLAIM
00
00
00
00
TypeExtWr #
BOZEMAN, CITY OF
LAZY J UTILITY ASSN
%TIM COOPER, ATTY
% KNAUB AND COMPANY PC
BOZEMAN, MT 59771 1230
BIG SKY, MT 59716 1030
PO BOX 1230
PO BOX 161030
Change Authorization
Additional Information:
A PORTION OF THE SUBJECT WATER RIGHTS AND THE GROUNDWATER CLAIMS WAS PREVIOUSLY
CHANGED UNDER RELATED APPLICATION NO. 41H 30102910.
July 18, 2019 Page 3 of 16
41H 138898-00Water Right Number:
JUNE 1 to OCTOBER 31
9
9
2S
2S
5E
5E
GALLATIN
GALLATIN
NWSENW
NESWNE
*1
*2
Purpose (use):
Period of Use:
Priority Date:SEPTEMBER 15, 1919
Maximum Flow Rate:544.86 GPM
Maximum Volume:
MITIGATION WATER
17.15 AC-FT
MITIGATION WATER
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Volume:12.00 AC-FT
Version Status:
Version:7 -- CHANGE AUTHORIZATION
SEVERED
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Purpose (Use):
*Place of Use:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: SEPTEMBER 15, 1919
OWNERSHIP UPDATE RECEIVED
WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER
CREEK
UNNAMED TRIBUTARY OF BAXTER CREEK
Source Name:
Source Name:
GROUNDWATER
GROUNDWATER
Source Type:
Source Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
*3
*4
*5
*6
9
9
9
9
5E
5E
5E
5E
2S
2S
2S
2S
NWSENW
NWSENW
NESWNE
NESWNE
GALLATIN
GALLATIN
GALLATIN
GALLATIN
INSTREAM
INSTREAM
INSTREAM
INSTREAM
Diversion Means:
Diversion Means:
Diversion Means:
Diversion Means:
WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER CREEK
UNNAMED TRIBUTARY OF BAXTER CREEK
WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER CREEK
UNNAMED TRIBUTARY OF BAXTER CREEK
Source Name:
Source Name:
Source Name:
Source Name:
JUNE 1 TO OCTOBER 31
JUNE 1 TO OCTOBER 31
JUNE 1 TO OCTOBER 31
JUNE 1 TO OCTOBER 31
Period of Diversion:
Period of Diversion:
Period of Diversion:
Period of Diversion:
ID Govt Lot Qtr Sec Sec Twp Rge CountyAcres
IMPORTANT INFORMATION
UNDER SUPPLEMENTAL GROUNDWATER CLAIMS 41H 138898-00, 41H 138899-00, 41H 138902-00, AND
41H 138903-00, MITIGATION WATER IN THE AMOUNT OF 48 ACRE-FEET AT A CONTINUOUS RATE OF
71.02 GALLONS PER MINUTE SHALL BE LEFT IN THE SUBSURFACE AS GROUNDWATER FROM JUNE 1
TO OCTOBER 31 TO MITIGATE ADVERSE EFFECT FROM THE LOSS OF RETURN FLOWS FROM WATER
RIGHTS 41H 30023118, 41H 30023119, AND 41H 30023120.
544.86 GPMHistorical Flow Rate:
17.15 AC-FT
12.00 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
*Point of Diversion and Means of Diversion:
July 18, 2019 Page 4 of 16
Change Application #: 41H-30103245 Change Authorization
OWNERSHIP UPDATE TYPE 608 # 41802 RECEIVED 09/05/2006.
OWNERSHIP UPDATE TYPE 641 # 148931 RECEIVED 09/28/2016.
OWNERSHIP UPDATE TYPE 641 # 151302 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 157815 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 155233 RECEIVED 04/19/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 608 # 187844 RECEIVED 06/06/2019.
July 18, 2019 Page 5 of 16
41H 138899-00Water Right Number:
JUNE 1 to OCTOBER 31
9
9
2S
2S
5E
5E
GALLATIN
GALLATIN
NWSENW
NESWNE
*1
*2
Purpose (use):
Period of Use:
Priority Date:SEPTEMBER 15, 1919
Maximum Flow Rate:544.86 GPM
Maximum Volume:
MITIGATION WATER
17.15 AC-FT
MITIGATION WATER
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Volume:12.00 AC-FT
Version Status:
Version:7 -- CHANGE AUTHORIZATION
SEVERED
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Purpose (Use):
*Place of Use:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: SEPTEMBER 15, 1919
OWNERSHIP UPDATE RECEIVED
OWNERSHIP UPDATE TYPE 608 # 41802 RECEIVED 09/05/2006.
OWNERSHIP UPDATE TYPE 641 # 148933 RECEIVED 09/28/2016.
OWNERSHIP UPDATE TYPE 641 # 157817 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 151305 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 155233 RECEIVED 04/19/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 608 # 187844 RECEIVED 06/06/2019.
WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER
CREEK
Source Name:
GROUNDWATERSource Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
*2
*3
9
9
5E
5E
2S
2S
NWSENW
NESWNE
GALLATIN
GALLATIN
INSTREAM
INSTREAM
Diversion Means:
Diversion Means:
JUNE 1 TO OCTOBER 31
JUNE 1 TO OCTOBER 31
Period of Diversion:
Period of Diversion:
ID Govt Lot Qtr Sec Sec Twp Rge CountyAcres
IMPORTANT INFORMATION
UNDER SUPPLEMENTAL GROUNDWATER CLAIMS 41H 138898-00, 41H 138899-00, 41H 138902-00, AND
41H 138903-00, MITIGATION WATER IN THE AMOUNT OF 48 ACRE-FEET AT A CONTINUOUS RATE OF
71.02 GALLONS PER MINUTE SHALL BE LEFT IN THE SUBSURFACE AS GROUNDWATER FROM JUNE 1
TO OCTOBER 31 TO MITIGATE ADVERSE EFFECT FROM THE LOSS OF RETURN FLOWS FROM WATER
RIGHTS 41H 30023118, 41H 30023119, AND 41H 30023120.
544.86 GPMHistorical Flow Rate:
17.15 AC-FT
12.00 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
*Point of Diversion and Means of Diversion:
July 18, 2019 Page 6 of 16
41H 138902-00Water Right Number:
JUNE 1 to OCTOBER 31
9
9
2S
2S
5E
5E
GALLATIN
GALLATIN
NWSENW
NESWNE
*1
*2
Purpose (use):
Period of Use:
Priority Date:SEPTEMBER 15, 1919
Maximum Flow Rate:544.86 GPM
Maximum Volume:
MITIGATION WATER
17.15 AC-FT
MITIGATION WATER
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Volume:12.00 AC-FT
Version Status:
Version:7 -- CHANGE AUTHORIZATION
SEVERED
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Purpose (Use):
*Place of Use:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: SEPTEMBER 15, 1919
OWNERSHIP UPDATE RECEIVED
OWNERSHIP UPDATE TYPE 608 # 41802 RECEIVED 09/05/2006.
OWNERSHIP UPDATE TYPE 641 # 148935 RECEIVED 09/28/2016.
OWNERSHIP UPDATE TYPE 641 # 157819 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 151307 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 155233 RECEIVED 04/19/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 608 # 187844 RECEIVED 06/06/2019.
WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER
CREEK
Source Name:
GROUNDWATERSource Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
*2
*3
9
9
5E
5E
2S
2S
NWSENW
NESWNE
GALLATIN
GALLATIN
INSTREAM
INSTREAM
Diversion Means:
Diversion Means:
JUNE 1 TO OCTOBER 31
JUNE 1 TO OCTOBER 31
Period of Diversion:
Period of Diversion:
ID Govt Lot Qtr Sec Sec Twp Rge CountyAcres
IMPORTANT INFORMATION
UNDER SUPPLEMENTAL GROUNDWATER CLAIMS 41H 138898-00, 41H 138899-00, 41H 138902-00, AND
41H 138903-00, MITIGATION WATER IN THE AMOUNT OF 48 ACRE-FEET AT A CONTINUOUS RATE OF
71.02 GALLONS PER MINUTE SHALL BE LEFT IN THE SUBSURFACE AS GROUNDWATER FROM JUNE 1
TO OCTOBER 31 TO MITIGATE ADVERSE EFFECT FROM THE LOSS OF RETURN FLOWS FROM WATER
RIGHTS 41H 30023118, 41H 30023119, AND 41H 30023120.
544.86 GPMHistorical Flow Rate:
17.15 AC-FT
12.00 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
*Point of Diversion and Means of Diversion:
July 18, 2019 Page 7 of 16
41H 138903-00Water Right Number:
JUNE 1 to OCTOBER 31
9
9
2S
2S
5E
5E
GALLATIN
GALLATIN
NWSENW
NESWNE
*1
*2
Purpose (use):
Period of Use:
Priority Date:SEPTEMBER 15, 1919
Maximum Flow Rate:544.86 GPM
Maximum Volume:
MITIGATION WATER
17.15 AC-FT
MITIGATION WATER
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Volume:12.00 AC-FT
Version Status:
Version:7 -- CHANGE AUTHORIZATION
SEVERED
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Purpose (Use):
*Place of Use:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: SEPTEMBER 15, 1919
OWNERSHIP UPDATE RECEIVED
OWNERSHIP UPDATE TYPE 608 # 41802 RECEIVED 09/05/2006.
OWNERSHIP UPDATE TYPE 641 # 148937 RECEIVED 09/28/2016.
OWNERSHIP UPDATE TYPE 641 # 151309 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 157821 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 155233 RECEIVED 04/19/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 608 # 187844 RECEIVED 06/06/2019.
WASTE & SEEPAGE, UNNAMED TRIBUTARY OF BAXTER
CREEK
Source Name:
GROUNDWATERSource Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
*2
*3
9
9
5E
5E
2S
2S
NWSENW
NESWNE
GALLATIN
GALLATIN
INSTREAM
INSTREAM
Diversion Means:
Diversion Means:
JUNE 1 TO OCTOBER 31
JUNE 1 TO OCTOBER 31
Period of Diversion:
Period of Diversion:
ID Govt Lot Qtr Sec Sec Twp Rge CountyAcres
IMPORTANT INFORMATION
UNDER SUPPLEMENTAL GROUNDWATER CLAIMS 41H 138898-00, 41H 138899-00, 41H 138902-00, AND
41H 138903-00, MITIGATION WATER IN THE AMOUNT OF 48 ACRE-FEET AT A CONTINUOUS RATE OF
71.02 GALLONS PER MINUTE SHALL BE LEFT IN THE SUBSURFACE AS GROUNDWATER FROM JUNE 1
TO OCTOBER 31 TO MITIGATE ADVERSE EFFECT FROM THE LOSS OF RETURN FLOWS FROM WATER
RIGHTS 41H 30023118, 41H 30023119, AND 41H 30023120.
544.86 GPMHistorical Flow Rate:
17.15 AC-FT
12.00 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
*Point of Diversion and Means of Diversion:
July 18, 2019 Page 8 of 16
41H 30023118Water Right Number:
OFF STREAM
5E32S
Govt Lot Qtr Sec Sec Twp Rge County
SESWNW GALLATIN
Purpose (use):
15.00 FEET
2.00 ACRES
14.30 ACRE-FEET
Depth:
Surface Area:
Current Capacity:
Priority Date:OCTOBER 15, 1866
Maximum Flow Rate:370.53 GPM
Maximum Volume:
Maximum Acres:
MITIGATION WATER
IRRIGATION
IRRIGATION
66.81
118.82 AC-FT
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Version Status:
Version:4 -- CHANGE AUTHORIZATION
ACTIVE
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Reservoir:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: OCTOBER 15, 1866
Ditch Name: FARMERS CANAL
WEST GALLATIN RIVERSource Name:
SURFACE WATERSource Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
1
2
11
11
4E
4E
3S
3S
SWNWNW
SWNWNW
GALLATIN
GALLATIN
HEADGATE
INSTREAM
Diversion Means:
Diversion Means:
JUNE 1 TO OCTOBER 1
OCTOBER 2 TO OCTOBER 31
JUNE 1 TO OCTOBER 1
OCTOBER 2 TO OCTOBER 31
Period of Diversion:
Period of Diversion:
Period of Diversion:
Period of Diversion:
Flow Rate:
Flow Rate:
Flow Rate:
Flow Rate:
354.32 GPM
337.52 GPM
16.21 GPM
33.01 GPM
370.53 GPMHistorical Flow Rate:
118.82 AC-FT
68.84 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
Point of Diversion and Means of Diversion:
July 18, 2019 Page 9 of 16
JUNE 1 to OCTOBER 31
JUNE 1 to OCTOBER 31
MAY 1 to NOVEMBER 30
11
2
3
35
34
26
27
23
14
15
10
11
2
3
34
35
27
22
15
16
9
4
5
32
31
30
19
29
9
3
7.95
58.86
3S
3S
3S
2S
2S
2S
2S
2S
2S
2S
2S
2S
2S
2S
1S
1S
1S
1S
1S
1S
1S
1S
1S
1N
1N
1N
1N
1N
2S
2S
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
5E
5E
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
NESW
W2NW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
*1
Period of Use:
Period of Use:
Period of Use:
Purpose (Use):
Purpose (Use):
MITIGATION WATER
IRRIGATION
IRRIGATION
HISTORICAL PLACE OF
USE
CITY OF BOZEMAN
SPORTS COMPLEX
Purpose
Clarification:
Purpose
Clarification:
Total:
Total:
7.95
58.86
Volume:
Volume:
Volume:
13.18 AC-FT
4.96 AC-FT
100.68 AC-FT
Climatic Area:
Climatic Area:
4 - MODERATELY LOW
4 - MODERATELY LOW
SPRINKLER
SPRINKLER
Irrigation Type:
Irrigation Type:
Change Application #: 41H-30103245
*Purpose (Use):
Place of Use:
Place of Use:
*Place of Use:
Change Authorization
ID
ID
ID
Govt Lot
Govt Lot
Govt Lot
Qtr Sec
Qtr Sec
Qtr Sec
Sec
Sec
Sec
Twp
Twp
Twp
Rge
Rge
Rge
County
County
County
Acres
Acres
Acres
July 18, 2019 Page 10 of 16
Change Application #: 41H-30103245 Change Authorization
OWNERSHIP UPDATE RECEIVED
OWNERSHIP UPDATE TYPE 608 # 42301 RECEIVED 10/23/2006.
OWNERSHIP UPDATE TYPE 641 # 126121 RECEIVED 10/16/2014.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 127325 RECEIVED 12/18/2014.
OWNERSHIP UPDATE TYPE 641 # 157823 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 151314 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 152962 RECEIVED 02/07/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 642 # 190204 RECEIVED 06/10/2019.
OWNERSHIP UPDATE TYPE 642 # 190162 RECEIVED 06/10/2019.
IMPORTANT INFORMATION
OPERATION OF MITIGATION-PURPOSE FLOW RATES FOR SUBJECT WATER RIGHTS: IN THE EVENT
THAT THE APPLICANT MAKES A CALL FOR WATER OR A WATER COMMISSIONER IS APPOINTED, THE
FOLLOWING OPERATION REPRESENTING UNDIVIDED, CONTINUOUS FLOW RATES OF THE WATER
RIGHTS SHALL BE FOLLOWED.
WATER RIGHT NO. PERIOD OF USE FLOW RATE (GPM)
41H 30023118 5/1 - 5/31 0.00
6/1 - 10/1 16.21
10/2 - 10/31 33.01
41H 30023119 5/1 - 5/31 0.00
6/1 - 10/1 7.34
10/2 - 10/31 14.95
41H 30023120 5/1 - 5/31 47.96
6/1 - 10/1 24.41
10/2 - 10/31 0.00
TOTAL AT ANY TIME DURING SEASON: 47.96
July 18, 2019 Page 11 of 16
41H 30023119Water Right Number:
OFF STREAM
5E32S
Govt Lot Qtr Sec Sec Twp Rge County
SESWNW GALLATIN
Purpose (use):
15.00 FEET
2.00 ACRES
14.30 ACRE-FEET
Depth:
Surface Area:
Current Capacity:
Priority Date:JUNE 15, 1881
Maximum Flow Rate:167.86 GPM
Maximum Volume:
Maximum Acres:
MITIGATION WATER
IRRIGATION
IRRIGATION
66.81
53.83 AC-FT
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Version Status:
Version:4 -- CHANGE AUTHORIZATION
ACTIVE
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Reservoir:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: JUNE 15, 1881
Ditch Name: FARMERS CANAL
WEST GALLATIN RIVERSource Name:
SURFACE WATERSource Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
1
2
11
11
4E
4E
3S
3S
SWNWNW
SWNWNW
GALLATIN
GALLATIN
HEADGATE
INSTREAM
Diversion Means:
Diversion Means:
JUNE 1 TO OCTOBER 1
OCTOBER 2 TO OCTOBER 31
JUNE 1 TO OCTOBER 1
OCTOBER 2 TO OCTOBER 31
Period of Diversion:
Period of Diversion:
Period of Diversion:
Period of Diversion:
Flow Rate:
Flow Rate:
Flow Rate:
Flow Rate:
160.52 GPM
152.91 GPM
7.34 GPM
14.95 GPM
167.86 GPMHistorical Flow Rate:
53.83 AC-FT
31.18 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
Point of Diversion and Means of Diversion:
July 18, 2019 Page 12 of 16
JUNE 1 to OCTOBER 31
JUNE 1 to OCTOBER 31
MAY 1 to NOVEMBER 30
11
2
3
35
34
26
27
23
14
15
10
11
2
3
34
35
27
22
15
16
9
4
5
32
31
30
19
29
9
3
7.95
58.86
3S
3S
3S
2S
2S
2S
2S
2S
2S
2S
2S
2S
2S
2S
1S
1S
1S
1S
1S
1S
1S
1S
1S
1N
1N
1N
1N
1N
2S
2S
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
5E
5E
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
NESW
W2NW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
*1
Period of Use:
Period of Use:
Period of Use:
Purpose (Use):
Purpose (Use):
MITIGATION WATER
IRRIGATION
IRRIGATION
HISTORICAL PLACE OF
USE
CITY OF BOZEMAN
SPORTS COMPLEX
Purpose
Clarification:
Purpose
Clarification:
Total:
Total:
7.95
58.86
Volume:
Volume:
Volume:
5.97 AC-FT
2.25 AC-FT
45.61 AC-FT
Climatic Area:
Climatic Area:
4 - MODERATELY LOW
4 - MODERATELY LOW
SPRINKLER
SPRINKLER
Irrigation Type:
Irrigation Type:
Change Application #: 41H-30103245
*Purpose (Use):
Place of Use:
Place of Use:
*Place of Use:
Change Authorization
ID
ID
ID
Govt Lot
Govt Lot
Govt Lot
Qtr Sec
Qtr Sec
Qtr Sec
Sec
Sec
Sec
Twp
Twp
Twp
Rge
Rge
Rge
County
County
County
Acres
Acres
Acres
July 18, 2019 Page 13 of 16
Change Application #: 41H-30103245 Change Authorization
OWNERSHIP UPDATE RECEIVED
OWNERSHIP UPDATE TYPE 608 # 42299 RECEIVED 10/23/2006.
OWNERSHIP UPDATE TYPE 641 # 126123 RECEIVED 10/16/2014.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 127325 RECEIVED 12/18/2014.
OWNERSHIP UPDATE TYPE 641 # 151317 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 157825 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 152964 RECEIVED 02/07/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 642 # 190209 RECEIVED 06/10/2019.
OWNERSHIP UPDATE TYPE 642 # 190210 RECEIVED 06/10/2019.
IMPORTANT INFORMATION
OPERATION OF MITIGATION-PURPOSE FLOW RATES FOR SUBJECT WATER RIGHTS: IN THE EVENT
THAT THE APPLICANT MAKES A CALL FOR WATER OR A WATER COMMISSIONER IS APPOINTED, THE
FOLLOWING OPERATION REPRESENTING UNDIVIDED, CONTINUOUS FLOW RATES OF THE WATER
RIGHTS SHALL BE FOLLOWED.
WATER RIGHT NO. PERIOD OF USE FLOW RATE (GPM)
41H 30023118 5/1 - 5/31 0.00
6/1 - 10/1 16.21
10/2 - 10/31 33.01
41H 30023119 5/1 - 5/31 0.00
6/1 - 10/1 7.34
10/2 - 10/31 14.95
41H 30023120 5/1 - 5/31 47.96
6/1 - 10/1 24.41
10/2 - 10/31 0.00
TOTAL AT ANY TIME DURING SEASON: 47.96
July 18, 2019 Page 14 of 16
41H 30023120Water Right Number:
OFF STREAM
5E32S
Govt Lot Qtr Sec Sec Twp Rge County
SESWNW GALLATIN
Purpose (use):
15.00 FEET
2.00 ACRES
14.30 ACRE-FEET
Depth:
Surface Area:
Current Capacity:
Priority Date:JUNE 1, 1867
Maximum Flow Rate:558.04 GPM
Maximum Volume:
Maximum Acres:
MITIGATION WATER
IRRIGATION
IRRIGATION
66.81
178.95 AC-FT
Owners:LAZY J UTILITY ASSN
BOZEMAN, CITY OF
% KNAUB AND COMPANY PC
%TIM COOPER, ATTY
BIG SKY, MT 59716 1030
BOZEMAN, MT 59771 1230
PO BOX 161030
PO BOX 1230
Version Status:
Version:5 -- CHANGE AUTHORIZATION
ACTIVE
THE INFORMATION SHOWN BELOW REFLECTS THE ENTIRE WATER RIGHT.
AN ASTERISK (*) HAS BEEN PLACED NEXT TO EACH ITEM ALTERED BY THIS CHANGE AUTHORIZATION.
Change Application #: 41H-30103245
*Reservoir:
STATEMENT OF CLAIM
Change Authorization
Enforceable Priority Date: JUNE 1, 1867
Ditch Name: FARMERS CANAL
WEST GALLATIN RIVERSource Name:
SURFACE WATERSource Type:
ID Govt Lot Qtr Sec Sec Twp Rge County
1
2
11
11
4E
4E
3S
3S
SWNWNW
SWNWNW
GALLATIN
GALLATIN
HEADGATE
INSTREAM
Diversion Means:
Diversion Means:
MAY 1 TO MAY 31
JUNE 1 TO OCTOBER 1
MAY 1 TO MAY 31
JUNE 1 TO OCTOBER 1
Period of Diversion:
Period of Diversion:
Period of Diversion:
Period of Diversion:
Flow Rate:
Flow Rate:
Flow Rate:
Flow Rate:
510.08 GPM
533.63 GPM
47.96 GPM
24.41 GPM
558.04 GPMHistorical Flow Rate:
178.95 AC-FT
103.67 AC-FT
Historical Diverted
Volume:
Historical Consumptive
Volume:
Point of Diversion and Means of Diversion:
July 18, 2019 Page 15 of 16
MAY 1 to OCTOBER 1
MAY 1 to OCTOBER 1
MAY 1 to NOVEMBER 30
11
2
3
35
34
26
27
23
14
15
10
11
2
3
34
35
27
22
15
16
9
4
5
32
31
30
19
29
9
3
7.95
58.86
3S
3S
3S
2S
2S
2S
2S
2S
2S
2S
2S
2S
2S
2S
1S
1S
1S
1S
1S
1S
1S
1S
1S
1N
1N
1N
1N
1N
2S
2S
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
4E
5E
5E
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
GALLATIN
NESW
W2NW
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
*1
Period of Use:
Period of Use:
Period of Use:
Purpose (Use):
Purpose (Use):
MITIGATION WATER
IRRIGATION
IRRIGATION
HISTORICAL PLACE OF
USE
CITY OF BOZEMAN
SPORTS COMPLEX
Purpose
Clarification:
Purpose
Clarification:
Total:
Total:
7.95
58.86
Volume:
Volume:
Volume:
19.85 AC-FT
7.47 AC-FT
151.63 AC-FT
Climatic Area:
Climatic Area:
4 - MODERATELY LOW
4 - MODERATELY LOW
SPRINKLER
SPRINKLER
Irrigation Type:
Irrigation Type:
Change Application #: 41H-30103245
*Purpose (Use):
Place of Use:
Place of Use:
*Place of Use:
Change Authorization
ID
ID
ID
Govt Lot
Govt Lot
Govt Lot
Qtr Sec
Qtr Sec
Qtr Sec
Sec
Sec
Sec
Twp
Twp
Twp
Rge
Rge
Rge
County
County
County
Acres
Acres
Acres
July 18, 2019 Page 16 of 16
Change Application #: 41H-30103245 Change Authorization
OWNERSHIP UPDATE RECEIVED
OWNERSHIP UPDATE TYPE 608 # 42230 RECEIVED 10/17/2006.
OWNERSHIP UPDATE TYPE 641 # 126125 RECEIVED 10/16/2014.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 127328 RECEIVED 12/18/2014.
OWNERSHIP UPDATE TYPE 641 # 157827 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE 641 # 151319 RECEIVED 12/12/2016.
OWNERSHIP UPDATE TYPE WATER COURT ORDER # 153034 RECEIVED 02/07/2017.
OWNERSHIP UPDATE TYPE 608 # 178292 RECEIVED 10/11/2018.
OWNERSHIP UPDATE TYPE 642 # 190213 RECEIVED 06/10/2019.
OWNERSHIP UPDATE TYPE 642 # 190212 RECEIVED 06/10/2019.
IMPORTANT INFORMATION
OPERATION OF MITIGATION-PURPOSE FLOW RATES FOR SUBJECT WATER RIGHTS: IN THE EVENT
THAT THE APPLICANT MAKES A CALL FOR WATER OR A WATER COMMISSIONER IS APPOINTED, THE
FOLLOWING OPERATION REPRESENTING UNDIVIDED, CONTINUOUS FLOW RATES OF THE WATER
RIGHTS SHALL BE FOLLOWED.
WATER RIGHT NO. PERIOD OF USE FLOW RATE (GPM)
41H 30023118 5/1 - 5/31 0.00
6/1 - 10/1 16.21
10/2 - 10/31 33.01
41H 30023119 5/1 - 5/31 0.00
6/1 - 10/1 7.34
10/2 - 10/31 14.95
41H 30023120 5/1 - 5/31 47.96
6/1 - 10/1 24.41
10/2 - 10/31 0.00
TOTAL AT ANY TIME DURING SEASON: 47.96
Revised 07-2016
Preliminary Determination to Grant Page 1 of 52 Application to Change Water Right No. 41H 30103245
BEFORE THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
OF THE STATE OF MONTANA
* * * * * * *
APPLICATION TO CHANGE WATER RIGHT
NO. 41H 30103245 BY NORTON PROPERTIES LLC, NORTON RANCH HOMES LLC, AND J&D FAMILY LP
)
)))
PRELIMINARY DETERMINATION TO GRANT CHANGE
* * * * * * *
On August 10, 2015, Norton Properties LLC, Norton Ranch Homes LLC, and J&D Family LP
(Applicant) submitted Application to Change an Existing Irrigation Water Right No. 41H 30103245 to
change Water Right Claim Nos. 41H 30023118, 41H 30023119, and 41H 30023120 to the Bozeman
Regional Office of the Department of Natural Resources and Conservation (Department or DNRC). The
Applicant proposes to change the place of use of use of the three Water Right Claims from the Norton
Ranch to the City of Bozeman Sports Complex, add a place of storage, and expand the period of use of
the rights to enable the use of stored water. The Department published receipt of the Application on its
website. A pre-application meeting was held for this Application and the concurrent Norton-Bostwick
Change Application 41H 30102910 on March 19, 2015. The Department sent the Applicant a deficiency
letter under §85-2-302, Montana Code Annotated (MCA), dated December 2, 2016. The Applicant
responded with information dated December 12, 2016. The Application was determined to be correct and
complete as of February 5, 2016.
The Applicant submitted a Waiver of Statutory Timelines on May 20, 2016, extending the
deadline for a Preliminary Determination until 45 days after the Applicant submitted additional
information for consideration. The Applicant submitted additional information in the form of a major
Amendment to the Application, on June 7, 2016, to incorporate Water Right Claim Nos. 41H 138898-00,
41H 138899-00, 41H 138902-00, and 41H 138903-00 into this Change Application. This major
Amendment reset statutory timelines for the Application. The Applicant submitted a minor Amendment
to this application, which reduced the transferable volume, on November 7, 2016.
The Department sent the Applicant a deficiency letter for the Amended Application on December
2, 2016. The Applicant responded with information dated December 12, 2016. The Applicant submitted
another minor Amendment to this Application on January 1, 2017, which again reduced the transferable
Revised 07-2016
Preliminary Determination to Grant Page 2 of 52 Application to Change Water Right No. 41H 30103245
volume. The Amended Application was determined to be correct and complete as of January 12, 2018.
An Environmental Assessment for this Application was completed on May 8, 2018.
INFORMATION
The Department considered the following information submitted by the Applicant, which is
contained in the administrative record.
Application as Filed:
• Application to Change Water Right, Form 606 IR
• Change in Place of Storage Addendum
• Exhibits 1 through 25; 27 through 51; and 53 through 55
Information Received after Application Filed
• Exhibit 26, “City of Bozeman’s Farmer’s Canal Company Share Certificates,” received May 27,
2016.
• Exhibit 52, “City of Bozeman and Maynard Border Pipeline Group Conveyance Agreement,”
received November 4, 2016.
• “Norton Change Applications – Replacement Exhibit,” October 5, 2015, email from Deborah
Stephenson (DMS) to Troy Benn (Department) containing Farmer’s Canal ditch rider notes to replace
the originally submitted notes, Exhibit 24.
• “Bylaws of the Farmer’s Canal Company of Gallatin County,” received via email on April 15, 2016,
from Deborah Stephenson (DMS) to Brent Zundel (Department).
• Motion to Amend, submitted by the Applicant to the Montana Water Court on April 29, 2016,
clarifying the historical place of use of both the subject water rights and the groundwater claims.
• Amendment to the Application; email from Deborah Stephenson (DMS) to Brent Zundel
(Department) received June 7, 2016, and signed hard copy received June 15, 2016; proposing to
incorporate the retirement of the groundwater claims into the current Application.
• Appendices A, B, and C for June 7, 2016, Amendment.
• Waiver of Statutory Timelines, included with Amendment to the Application, received June 7, 2016,
extending the statutory timelines for an additional 45 days from the receipt of the letter (until July 22,
2016).
• “Revised Table 10 – Diversion Volume Calculations,” received July 12, 2016, calculating historical
diverted volume for the subject water rights.
Revised 07-2016
Preliminary Determination to Grant Page 3 of 52 Application to Change Water Right No. 41H 30103245
• Amendment to Application; email from Deborah Stephenson (DMS) to Brent Zundel and Kerri
Strasheim (Department) received November 1, 2016; modifying the transferable volumes and the
proposed new use at the City Sports Complex.
• Amendment to Application; email from Deborah Stephenson (DMS) to Brent Zundel and Kerri
Strasheim (Department) received January 18, 2017; modifying the transferable volumes and the
proposed new use at the City Sports Complex.
• Phone call between Brian Heaston (City of Bozeman) and Kerri Strasheim (Department), dated May
7, 2018, confirming irrigation pond design and operation.
• Emails and phone calls between Brian Heaston (City of Bozeman) and Brent Zundel (Department),
dated May 7 – 8, 2018, confirming measurements, period of use, and project completion timeline.
Information within the Department’s Possession/Knowledge
• 1953 Gallatin County Water Resources Survey (Aerial Photographs from 1947, Field Mapping, Field
Notes, and Published Survey).
• USDA Aerial Photos (1979, 1995, 2005).
• Farmer’s Canal Company Articles of Incorporation.
• “Flow Rates to Accomplish Mitigation,” notes from Troy Benn (Department), dated November 11,
2015, meeting with Deborah Stephenson (DMS), indicating mitigation flow rates and periods of
diversion.
• Analysis of existing water rights on Aajker and Baxter Creeks, spreadsheet by Troy Benn
(Department).
• February 5, 2016, Irrigation Change Application Technical Report by Brent Zundel (Department).
• Revised January 12, 2018, Irrigation Change Application Technical Report by Brent Zundel
(Department).
• The Department also routinely considers the following information. The following information is not
included in the administrative file for this Application, but is available upon request. Please contact
the Bozeman Regional Office at 406-586-3136 to request copies of the following documents.
o “Policy Memo – Return Flows”
o “DNRC Consumptive Use Methodology” Memorandum
o “Development of standardized methodologies to determine Historic Diverted Volume”
Memorandum
Revised 07-2016
Preliminary Determination to Grant Page 4 of 52 Application to Change Water Right No. 41H 30103245
The Department has fully reviewed and considered the evidence and argument submitted in this
Application and preliminarily determines the following pursuant to the Montana Water Use Act (Title 85,
chapter 2, part 3, part 4, MCA).
PRELIMINARY MATTERS
This Application is the second of two recent change applications for the three surface water and
the four groundwater rights involved. The original application, 41H 30102910 (“Norton-Bostwick”), was
received June 4, 2015; the present application (“Norton-Bozeman”) was received August 10, 2015. The
intent was to process both applications concurrently, since they proposed to change the full volume
available under all rights in two steps. Given high development pressures and multiple amendments to the
applications, the first application was prioritized. A Preliminary Determination to Grant for Norton-
Bostwick was issued July 14, 2017.
Processing of the present Application was affected by three Amendments submitted. The first
Amendment incorporated the groundwater claims into the application, and the latter two Amendments
reduced the transferable volume of water due to ownership issues. These Amendments are discussed at
length in the Preliminary Determination below.
WATER RIGHTS TO BE CHANGED
FINDINGS OF FACT
Subject Water Rights
1. The Applicant seeks to change Water Right Claims 41H 30023118, 41H 30023119, and 41H
30023120. Table 1, below, summarizes the rights proposed for change as currently reflected in the
Department’s water rights database. All three water rights (the “subject rights”) are fully supplemental,
claiming irrigation on the same 137.90 acres. Water is diverted from the West Gallatin River at the
Farmer’s Canal headgate and conveyed to the place of use through the Farmer’s Canal and the E. Minder
Lateral. Each right has a unique priority date, and the combined flow rate of all three claims is 1,096.43
GPM (2.44 CFS). Claims 41H 30023118 and 30023119 have the same period of use and period of
diversion from 6/1 – 10/31, while 41H 30023120 is from 5/1 – 10/1.
Revised 07-2016
Preliminary Determination to Grant Page 5 of 52 Application to Change Water Right No. 41H 30103245
Table 1: Subject Rights Proposed for Change
Water
Right No. Purpose Source Flow
Rate
Period
of Use
Point of
Diversion1
Place of
Use
Priority
Date Acres
(41H) ( – ) ( – ) (GPM) ( – ) ( – ) ( – ) ( – ) (ac)
30023118
Irrigation West Gallatin
River
370.53 6/1 –
10/31 SWNWNW,
Sec. 11,
T03 S,
R04 E
E½SW, W½SE, SENW,
SWNE,
Sec. 9,
T02 S,
R05 E
10/15/1866 137.90
30023119 167.86 6/1 – 10/31 6/15/1881 137.90
30023120 558.04 5/1 –
10/1 6/1/1867 137.90
Notes: 1Farmer’s Canal headgate.
This table reflects the water rights after the Water Court proceedings described in the Historical Use Section of this document, but the figures above include the portions of the water rights changed under related Change
Authorization 41H 30102910 (Norton-Bostwick).
2. The three subject water rights; 41H 30023118, 41H 30023119, and 41H 30023120; derive from
2006 splits of parent claims 41H 138901-00, 41H 138900-00, and 41H 9295-00, respectively. The place
of use of 41H 9295-00 was changed to the Norton Ranch in 1988. Three child rights; 41H 30069703, 41H
30069704, and 41H 30069705; were created from the subject water rights in a 2015 split. The Applicant
submitted Divided Interest Ownership Update Forms on December 12, 2016, to split off an additional
0.73 acres. The 1988 place of use change, 2006 split, 2015 split, and 2016 split are addressed in greater
detail in the Historical Use Section.
Groundwater Claims
3. The original Application as filed by the Applicant included the retirement of four water rights
(the “groundwater claims”) as part of the plan to prevent adverse effect from the proposed change. While
the four groundwater claims were part of the correct and complete change application and analysis
contained therein, the Applicant proposed to withdraw the associated groundwater rights rather than
obtain a change authorization for those rights. The Applicant submitted a June 7, 2016, Amendment to
this Application. The Amended Application proposes to obtain a change authorization for the
groundwater claims 41H 138898-00, 41H 138899-00, 41H 138902-00, and 41H 138903-00 in order to
prevent adverse effect to other appropriators due to a loss of return flows. Although a separate change
application would usually be required for the four groundwater claims pursuant to Rule 36.12.1901(7),
ARM, under the limited procedural circumstances of this case, where the original application included
Revised 07-2016
Preliminary Determination to Grant Page 6 of 52 Application to Change Water Right No. 41H 30103245
analysis of these groundwater rights as part of the proposed change and was accepted as correct and
complete, the proposed change of the groundwater rights will be analyzed as part of the Amended
Application.
4. These four claims were filed for controlled subirrigation of groundwater and waste and seepage
from an unnamed tributary of Baxter Creek. Their originally claimed place of use overlapped with that of
the subject water rights. The Applicant provided substantial and credible evidence that these claims were
exercised independently on a separate place of use located in the SWNE and portions of the N½NWSE of
Section 9, T02 S, R05 E. Furthermore, the Applicant filed a Motion to Amend with the Montana Water
Court on April 29, 2016, to clarify the above-described place of use of the groundwater claims, the place
of use of the subject water rights, and the lack of a supplemental relationship between the subject water
rights and the groundwater claims. The Motion to Amend was adopted in two different Master’s Reports
dated November 16, 2016, and December 21, 2016. The place of use and independent operation of the
groundwater claims is analyzed in greater detail in the Historical Use Section. The June 7, 2016,
Amendment to the Application proposed to include these groundwater claims as part of the current
Application. Table 2, below, reflects the elements of groundwater claims proposed for change.
Table 2: Groundwater Claims Proposed for Change
Water Right No. Purpose Source of Water Flow Rate Period of Use
Point of
Divers.1
Place of Use1 Priority Date Acres
(41H) ( – ) ( – ) (CFS) ( – ) ( – ) ( – ) ( – ) (ac)
138898
Irrigation
Unnamed Tributary of
Baxter Creek; Waste &
Seepage, Unnamed
Tributary of Baxter Creek
1.21 6/1 – 10/31
SWNWSE SWNE,
SENW,
NWSE
9/15/1919 43.22
138899 Waste & Seepage,
Unnamed Tributary of
Baxter Creek
1.21 6/1 –
10/31 9/15/1919 43.22
138902 1.21 6/1 – 10/31 9/15/1919 43.22
138903 1.21 6/1 – 10/31 SESWNE 9/15/1919 43.22
Notes: 1All Section 9, T02 S, R05 E, Gallatin County.
Revised 07-2016
Preliminary Determination to Grant Page 7 of 52 Application to Change Water Right No. 41H 30103245
5. The place of use was also served by Farmer’s Canal shares. The Applicant addressed how the
subject water rights, Farmer’s shares, and groundwater claims were operated in a discussion of historical
use. See the Historical Use Section.
6. The place of use of right 41H 9295-00 was moved in Change Application 41H 929502, which
was completed in 1988. Right 41H 30023120 was subsequently split from parent right 41H 9295-00 in
2006. The verification process was begun when the Notice of Completion was received but never
finalized, so this change authorization was certified on March 1, 2016, using a February 24, 2000, Report
of Findings; information in the file; and aerial imagery available to the Department. None of the other
subject water rights or groundwater claims has been subject to a change authorization, except for the
concurrently processed Norton-Bostwick Change Application 41H 30102910, discussed in the
Preliminary Matters section. The Farmer’s Canal water rights have been subject to a previous change, but
that change does not directly affect the historical use discussion for this Application.
CHANGE PROPOSAL
FINDINGS OF FACT
7. The Applicant proposes to change the place of use of, add a place of storage to, and expand the
period of use of the subject water rights: 41H 30023118, 41H 30023119, and 41H 30023120. They
propose to change the place of use of 103.55 acres of historical irrigation at the Norton Ranch to 58.86
acres of new irrigation at the proposed City of Bozeman Sports Complex. The Norton Ranch was
historically irrigated in Section 9, T02 S, R05 E, Gallatin County; the City of Bozeman Sports Complex is
located in Section 3, T02 S, R05 E. See Figure 1, on the next page, for an overview of the proposed
changes.
Revised 07-2016
Preliminary Determination to Grant Page 8 of 52 Application to Change Water Right No. 41H 30103245
Figure 1: Overview map showing the proposed changes. Application Exhibit 40.
8. The point of diversion will remain the Farmer’s Canal headgate in the SWNWNW of Section 11,
T03 S, R04 E. Water will continue to be diverted into Farmer’s Canal, but instead of being diverted into
the E. Minder Lateral, it will now be diverted into the Maynard Border Ditch, which is located
approximately one mile down-ditch in the Farmer’s Canal relative to the E. Minder. Water will then be
conveyed approximately 1.5 miles down the Maynard Border Ditch to the Maynard Border Pipeline.
From there, a valve will direct water to the proposed irrigation reservoir, and water will be applied to the
new Sports Complex place of use via a pumping facility.
9. A place of storage is proposed at the Sports Complex. Submitted designs for the irrigation
reservoir indicate that it would have a surface area of 2 acres, a maximum depth of 15 feet, and a capacity
of 14.3 AF. The operation of the reservoir includes pumping directly from the reservoir to irrigate the
Revised 07-2016
Preliminary Determination to Grant Page 9 of 52 Application to Change Water Right No. 41H 30103245
Sports Complex, and the water stored in the reservoir is part of the City’s irrigation demand. The only
additional water consumed by the pond is the surface evaporation of 6.30 AF. In a May 7, 2018, phone
call between the City of Bozeman and the Department, the City clarified that the irrigation reservoir will
be unlined.
10. The Application originally proposed to expand the period of use of the subject water rights to
March 1 through November 30. The period of diversion for each right would remain unchanged. In May 7
– 8, 2018, emails and phone calls, the City of Bozeman confirmed that they will begin diversion of water
under the subject water rights on May 1, the earliest date at which direct flow delivery of the subject
water rights could begin. The City owns shares in Middle Creek Reservoir, which supplies a significant
portion of their municipal demand. These shares have year-round periods of use and diversion and could
be used in the early season if needed. The end date for the period of use will be November 30. The
expanded period of use would allow the City of Bozeman to apply stored water to the Sports Complex as
climatic conditions and irrigation requirements warrant and allow them additional flexibility in their
irrigation of the Sports Complex. In the same conversation, the City requested a 20-year period to
complete this project, as opposed to the 15 years originally requested.
11. The water associated with 26.4 acres of the subject water rights and 8.78 acres of the groundwater
claims was changed under related Change Application No. 41H 30102910 (Norton-Bostwick).
12. On June 7, 2016, the Department received an Amendment to the Application that proposed to
modify the Application to include the four groundwater claims as a part of the change. The Application,
as originally received, proposed to retire the groundwater claims in order to mitigate any adverse effect
caused by the loss of return flows to Aajker and Baxter Creeks due to the retirement of the historical
irrigation under the subject water rights. The Amendment proposes to include the groundwater claims as
part of the change. Their purpose, point of diversion, and place of use would be changed. The new
purpose is mitigation. The new point of diversion and place of use for these rights will be the same; they
will be two points, one on Aajker Creek and one on Baxter Creek, at the downstream end of Norton
Properties, at a likely point of connection between groundwater and surface water. These points are
located in the NWSENW and NESWNE of Section 9, T02 S, R05 E, for Aajker and Baxter Creeks,
respectively. Instead of being diverted for irrigation, water from the groundwater claims will be left
undiverted in the ground and available to downstream users.
Revised 07-2016
Preliminary Determination to Grant Page 10 of 52 Application to Change Water Right No. 41H 30103245
CHANGE CRITERIA
13. The Department is authorized to approve a change if the applicant meets its burden to prove the
applicable § 85-2-402, MCA, criteria by a preponderance of the evidence. Matter of Royston, 249 Mont.
425, 429, 816 P.2d 1054, 1057 (1991); Hohenlohe v. DNRC, 2010 MT 203, ¶¶ 33, 35, and 75, 357 Mont.
438, 240 P.3d 628 (an applicant’s burden to prove change criteria by a preponderance of evidence is
“more probably than not.”); Town of Manhattan v. DNRC, 2012 MT 81, ¶8, 364 Mont. 450, 276 P.3d
920. Under this Preliminary Determination, the relevant change criteria in §85-2-402(2), MCA, are:
(2) Except as provided in subsections (4) through (6), (15), (16), and (18) and, if applicable, subject to subsection (17), the department shall approve a change in
appropriation right if the appropriator proves by a preponderance of evidence that the following criteria are met: (a) The proposed change in appropriation right will not adversely affect the use of the
existing water rights of other persons or other perfected or planned uses or developments for which a permit or certificate has been issued or for which a state water reservation has
been issued under part 3.
(b) The proposed means of diversion, construction, and operation of the appropriation works are adequate, except for: (i) a change in appropriation right for instream flow
pursuant to 85-2-320 or 85-2-436; (ii) a temporary change in appropriation right for
instream flow pursuant to 85-2-408; or (iii) a change in appropriation right pursuant to 85-2-420 for mitigation or marketing for mitigation.
(c) The proposed use of water is a beneficial use.
(d) The applicant has a possessory interest, or the written consent of the person with the possessory interest, in the property where the water is to be put to beneficial use or, if the
proposed change involves a point of diversion, conveyance, or place of use on national forest system lands, the applicant has any written special use authorization required by federal law to occupy, use, or traverse national forest system lands for the purpose of
diversion, impoundment, storage, transportation, withdrawal, use, or distribution of water. This subsection (2)(d) does not apply to: (i) a change in appropriation right for instream flow pursuant to 85-2-320 or 85-2-436; (ii) a temporary change in appropriation
right for instream flow pursuant to 85-2-408; or (iii) a change in appropriation right pursuant to 85-2-420 for mitigation or marketing for mitigation.
14. The evaluation of a proposed change in appropriation does not adjudicate the underlying right(s).
The Department’s change process only addresses the water right holder’s ability to make a different use
of that existing right. E.g., Hohenlohe, at ¶¶ 29-31; Town of Manhattan, at ¶8; In the Matter of
Application to Change Appropriation Water Right No.41F-31227 by T-L Irrigation Company (DNRC
Final Order 1991).
Revised 07-2016
Preliminary Determination to Grant Page 11 of 52 Application to Change Water Right No. 41H 30103245
HISTORICAL USE AND ADVERSE EFFECT
FINDINGS OF FACT – Historical Use
Background
Subject Water Rights
15. The place of use in this change has a fairly complex history with water. Prior to July 1, 1973, use
involved two claims and shares from the Farmer’s Canal. An opportunity to buy an additional senior
water right to ensure full-season irrigation arose in the 1980s. A change to move the place of use of this
senior right to the Norton field was completed in 1988, at which point all three of the subject water rights
were being exercised on the Norton place of use. This significantly changed the water use on the field:
The shares were no longer necessary, though the Applicant and the Applicant’s predecessors retained the
shares after completing this change until the year 2006. Due to this change, a decision has been made to
focus the historical use analysis and to calculate historical use from the completion of the change to
present day. Because all three rights were comingled and operated as part of the same system, historical
consumptive use is calculated as of the 1988 completion of the change. Full historical use, going back to
pre-July 1, 1973, is briefly analyzed to confirm that no expansion occurred.
Groundwater Claims
16. The four groundwater claims included in this change were exercised on a separate place of use of
43.22 acres and operated with an independent irrigation system composed of tile drains, sunken concrete
headgates, and drain ditches, which allowed for control of the groundwater. Because these rights
represent historical claims that have not been subject to any previous changes – except for the
concurrently processed Norton-Bostwick Change Application 41H 30102910, discussed in the
Preliminary Matters section – and because their irrigation system was operated independently from that of
the subject water rights, historical use is analyzed prior to July 1, 1973.
Point of Diversion and Means of Conveyance
Subject Water Rights
17. The source of water for the subject place of use has always been the West Gallatin River. Rights
41H 30023118 and 41H 30023119 have always historically been diverted into the Farmer’s Canal and
conveyed to this place of use. Water right 41H 30023120 served a different place of use and was
conveyed through the West Gallatin (Kleinschmidt) Canal until a 1988 change. The goal of this change
was to procure more senior water for full season irrigation. This water was conveyed through the
Revised 07-2016
Preliminary Determination to Grant Page 12 of 52 Application to Change Water Right No. 41H 30103245
Farmer’s Canal to the current place of use after the 1988 change authorization approval and subsequent
notice of completion.
18. Water was conveyed 7.9 miles in the Farmer’s Canal. The Farmer’s Canal headgate is located in
the SWNWNW of Section 11, T03 S, R04 E. The West Gallatin River is a major source of irrigation
water in the Gallatin Valley; typically, the district court appoints a water commissioner every year to
administer water rights. Likewise, the Farmer’s Canal is a major irrigation canal in the Valley and
employs a ditch rider. Water entering the Farmer’s Canal is measured by two 10-foot Parshall flumes,
located approximately 300 feet down the ditch from the headgate. In a clarification submitted with the
June 7, 2016, Amendment, George Alberda, the current West Gallatin Water Commissioner, and Bill
Tatarka, President of the Farmer’s Canal Company, estimate the capacity of the Farmer’s Canal at
approximately 250 CFS. The Department’s historical records (Water Resource Survey notes) also indicate
a capacity of up to 250 CFS. Records provided by Mr. Alberda and submitted with the Application
showed measurements for 2005, 2006, 2007, 2009, 2010, 2012, 2013, and 2014 (more records are
available upon request, but these last 10 years are sufficiently representative for historical water use
analysis, encompassing both wet and dry years). According to those records, Farmer’s Canal diversion
water was measured at a maximum of 103.425 CFS during those eight years. According to the
Department’s records, 50 rights are conveyed in the Farmer’s Canal. Farmer’s Canal conveys
approximately 37 CFS of privately held, recorded water rights with a more senior priority date to
Farmer’s Canal water rights (pre-1883). Farmer’s Canal also carries 275 AF of Middle Creek storage
water. Farmer’s Canal recorded water rights, ranging in priority from 1883 through 1892, account for
approximately 234.5 CFS.
19. Water was conveyed through the Farmer’s Canal to the E. Minder Lateral. At this secondary
point of diversion, water was diverted into the lateral via a headgate in the NWNESW of Section 16, T02
S, R05 E. Water was conveyed approximately 3,600 feet through the lateral and then applied to the field.
According to 2014 measurements and modeling conducted by Spanish Peaks Engineering & Consulting
LLC, the E. Minder Lateral has a capacity of 6.3 CFS and was flowing at full capacity on August 7, 2014.
A Parshall flume and staff gage measure flow in E. Minder. According to the Department’s records and
information provided in the Application, the E. Minder conveys the subject water rights (2.45 CFS),
Norton’s Farmer’s shares (7.81 CFS), and Kamp’s Farmer’s shares (3 2/3 shares at 89 2/7 MI each = 8.18
CFS). Aerial imagery and materials related to the 1988 change application indicate that the capacity of the
E. Minder Lateral did not change between 1973 and 2006. Beginning in 2006, the Applicant began to
Revised 07-2016
Preliminary Determination to Grant Page 13 of 52 Application to Change Water Right No. 41H 30103245
subdivide portions of the Norton Ranch. When describing the adequacy of the proposed means of
diversion and conveyance in 1988, the Applicant stated that the change would only “lengthen the period
of use of existing facilities, without increasing the maximum amount they are required to handle.”
Therefore, the measurements conducted in 2014 accurately reflect the historical capacity of the E. Minder
Lateral and demonstrate that it was capable of conveying the full flow rate of the subject water rights.
Groundwater Claims
20. The sources of water for the groundwater claims are an unnamed tributary of Baxter Creek and
waste and seepage, unnamed tributary of Baxter Creek, all considered groundwater. The points of
diversion are two sunken concrete box headgates used to control the tile drain system. The means of
diversion and conveyance for these claims are a tile drain system, sunken concrete headgates, and drain
ditches. The Applicant provided a photograph of a concrete headgate used to control the drain ditch
system, Farm Service Administration (FSA) maps, and maps of the historical place of use showing the
location of infrastructure associated with the groundwater claims.
21. The diversion and conveyance system consists of the drain tiles, headgates, and drain ditches.
According to the Applicant, the underground concrete headgates are approximately 4 feet wide by 6 feet
long and are buried 5 to 6 feet below the ground surface. This is supported by two notarized Notices of
Water Right, one from 1920 and the other from 1934, that are included in the claim files. Water was
collected in the drain tile and drain ditch system and the headgates were closed to back up groundwater in
order to irrigate portions of the property. The 1934 Notice of Water Right further claims that; in addition
to the drain tiles, headgates, and drain ditches; a pump “sufficient in size to carry” the claimed flow rate
was also used to divert groundwater. The means of diversion and conveyance allowed the Applicant to
exercise control over the groundwater for the purpose of irrigation.
Priority Date
Subject Water Rights
22. Water right 41H 30023118 is based upon a water right previously decreed to A.D. Weaver for
467 miner’s inches (MI) with an October 15, 1866, priority date in the West Gallatin River Decree, Bell
v. Armstrong, Case No. 3850, Gallatin County, dated October 7, 1909. Water right 41H 30023119 is
based upon a water right previously decreed to D.P. Stone for 80 MI with a June 15, 1881, priority date
also in the 1909 West Gallatin River Decree. Water right 41H 30023120 is based upon a water right
previously decreed to O.T. Crawford for 101 MI with a June 1, 1867, priority date, again in the 1909
West Gallatin River Decree.
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23. Provided by West Gallatin Water Commissioner George Alberda, Exhibit 24 in the Application
materials is a list of calls from 2005 to 2014 that indicates the date at which water rights with varying
priority dates were cut off. The subject rights are of sufficient seniority such that they were not subject to
a call at any time during those 10 years. Furthermore, the Applicant stated that these three rights provide
full-service irrigation and have never been subject to a call for water. The Department has no knowledge
of a call for water being made against these rights.
Groundwater Claims
24. The four groundwater claims are filed historical rights with a claimed priority date of September
15, 1919. The Application states that “[i]n 1919, drain tile was installed to control the groundwater on the
property.” The priority date claimed on the Statement of Claims when they were filed was September 15,
1919, and the files include copies of a notarized Notice of Water Right indicating that water was first put
to use under these rights on September 15, 1919. The Gallatin County Water Resources Survey confirm
historical use of the groundwater claims as of the March 4, 1953, date that the Norton place of use was
surveyed. The survey includes notes regarding an appropriation of “Drainage and Waste Water” by John
E. Norton and an appropriation of “Drainage” by Roger Huffine. The Montana Water Court decreed a
priority date for these claims of September 15, 1919.
Place of Use
Subject Water Rights
25. Prior to 1988, claims 41H 138900-00 and 41H 138901-00 were used to irrigate the Norton Ranch
in Sections 8 and 9, T02 S, R05 E. In 1988, 41H 9295-00 was moved from its place of use on the Sime
Ranch in Sections 25, 30, and 36 of T02 S, R04 E, to the current place of use in Sections 8 and 9 via
change application 41H 929502, which was completed in 1988. The verification process was begun at
that time but never finalized, so this change authorization was certified on March 1, 2016, using a
February 24, 2000, Report of Findings; information in the file; and aerial imagery available to the
Department. Portions of the Norton Ranch were sold off, so the Montana Water Court split the claims in
Case 41H-412. The three rights proposed for change are 41H 30023118, 41H 30023119, and 41H
30023120, which have a claimed a place of use of 237.27 acres.
26. Figure 2, on page 16, shows a map of the historical irrigated acres under the subject rights. Of the
claimed place of use, only 140 acres were actually historically irrigated with the subject water rights after
completion of the 1988 change. The Applicant asserts that the rest of the claimed place of use was not
irrigated under the subject rights. This assertion is supported by FSA maps from 2002 – 2014 and an
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affidavit from longtime neighbor, farmer, and former Montana State University Agricultural Experiment
Station employee Al Lien, who is knowledgeable of irrigation practices on the Norton Ranch and in the
greater Gallatin Valley. The FSA maps delineate field boundaries that align with the Applicant’s map of
which fields were irrigated with Big Gun sprinkler systems and wheel line sprinkler systems.
Furthermore, some of the FSA maps call out portions of the SENW of Section 9 as being “to [sic] wet to
seed” or being “wet!!!”. In his affidavit, Mr. Lien claims that the “northern and southeastern portions of
the property located approximately in the SENW, SWNE, NWNWSE and SESWSE of section 9 … was
[sic] historically not irrigated with water from Farmer’s Canal due to subirrigation.” Four groundwater
claims, discussed in more detail later in this document, were historically used for irrigation on much of
the acreage in the northern portion of the place of use but were operated independently and did not
overlap with the actual, 140-acre place of use of the subject rights. The groundwater claims were operated
with a system of drain tiles, underground concrete box headgates, and drain ditches. The Applicant filed a
Motion to Amend with the Montana Water Court on April 29, 2016, to reflect this information. The
Motion to Amend was adopted in two different Master’s Reports dated November 16, 2016, and
December 21, 2016.
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Figure 2: Map of the claimed place of use and the place of use that was actually historically irrigated under the subject water rights. Application Exhibit 5.
27. Between 2006 and 2014, portions of the Norton Ranch were subdivided, and the appurtenant
water rights were inadvertently conveyed to individual owners. Not all of these rights were re-acquired,
so three child rights; 41H 30069703, 41H 30069704, and 41H 30069705; were created to represent the
2.73 acres of the claimed place of use that were conveyed to multiple individual owners. Of the 140 acres
that were historically irrigated, 1.37 actual irrigated acres (of the claimed 2.73 acres) were conveyed to
the three child rights. Therefore, 138.63 historically irrigated acres remained with the subject water rights.
After this process was completed, the Applicant failed to file a number of the deeds involved. The
proportionate share of the water rights was conveyed to the lot owners by operation of law. The Applicant
submitted Form 641: Divided Interest Ownership Update to the Department on December 12, 2016, to
split off another 0.73 acres from the subject water rights. Thus, the remaining acreage under these water
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rights is 140 – 1.37 – 0.73 = 137.90 acres. Of this acreage, the water corresponding to 26.40 acres was
changed in the related Norton-Bostwick Change Application. No groundwater claims are available to
mitigate the lost return flows associated with 7.95 acres, so the acreage remaining for the City of
Bozeman Sports Complex is 103.55 acres (137.90 – 26.40 – 7.95 = 103.55 acres). The 137.90 acres are
located within the E½SW, W½SE, SENW, and SWNE of Section 9. On April 29, 2016, the Applicant
filed a Motion to Amend with the Montana Water Court, clarifying the place of use of the subject water
rights as the 138.63 acres described previously. This was reduced, as stated, by a further 0.73 acres. For
further discussion, see the Supplemental Rights and Non-Use Sub-Section in this Historical Use Section.
28. The Gallatin County Water Resources Survey (1953) and USDA aerial photos (1979, 1995, and
2005) confirm irrigation on the historical 137.90 acres. Rights 41H 30023118 and 41H 30023119 have
historically been exercised on the acreage since appropriation. The Water Resources Survey provides
evidence that the field was irrigated under these rights prior to July 1, 1973. Right 41H 30023120 was
used on the place of use after being changed in 1988 to supplement the existing rights and extend the
irrigation period for low-water years, as described elsewhere in this document. USDA aerial photos,
additional aerial photos available to the Department, FSA maps, an affidavit from long-time neighbor Al
Lien, and interviews of the previous two farmers of the property (from 1996 – 2011) clearly indicate that
the place of use has been irrigated up until the present.
Groundwater Claims
29. As originally filed, the groundwater claims each listed different acreages and were supplemental
to the subject water rights. The Applicant provided substantial and credible evidence that these claims
were exercised independently on a separate place of use of 44.50 acres located in the SWNE and portions
of the N½NWSE of Section 9, T02 S, R05 E. The Applicant provided a map of the infrastructure,
showing the location of the Big Gun sprinkler system; the wheel line sprinkler system; and the tile drain,
sunken headgate, and drainage ditch system – and the areas that were irrigated under each. Interviews
conducted by the Applicant’s consultant with two previous farmers of the property, Pat Ward (1996 –
2002) and Josh Jones (2003 – 2011) indicated that the groundwater system was operated on the northern
third of the property (the SWNE and N½NWSE of Section 9). Longtime neighbor and former MSU
Agricultural Experiment Research Station employee Al Lien submitted an affidavit supporting the
historical use of the groundwater claims in this area. The Gallatin County Water Resources Survey and
associated field notes confirm that a groundwater appropriation by John E. Norton was in use at the time
of the 1953 field inspection. Historical aerial imagery; as well as later imagery from 1981, 1995, and
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Preliminary Determination to Grant Page 18 of 52 Application to Change Water Right No. 41H 30103245
2001; also supports historical use of the groundwater claims on 43.22 acres. The Applicant filed a Motion
to Amend with the Montana Water Court on April 29, 2016, to clarify the place of use of the groundwater
claims. The Motion to Amend was adopted in two different Master’s Reports dated November 16, 2016,
and December 21, 2016.
30. As the Norton Ranch was subdivided and sold, the Applicant inadvertently conveyed portions of
the groundwater claims to individual lot owners, as was done with the subject water rights. See Finding of
Fact 27 for a full discussion. After the 2015 and 2016 splits, the acreage remaining under the groundwater
claims is 43.22 acres. Of this acreage, the water corresponding to 8.78 acres was changed in the related
Norton-Bostwick Change Application. The remaining acreage is 43.22 – 8.78 = 34.44 acres.
Periods of Diversion and Use
Subject Water Rights
31. The period of diversion and use for 41H 30023118 and 41H 30023119 is June 1 – October 31, as
decreed in Bell v. Armstrong, Case No. 3850, Gallatin County, dated October 7, 1909. The period of
diversion and use for 41H 30023120 is May 1 – October 1, as decreed in Bell v. Armstrong, Case No.
3850, Gallatin County, dated October 7, 1909. These same periods of diversion and use are reflected in
the 1985 Temporary Preliminary Decree issued by the Montana Water Court for the Gallatin River Basin
and in the Priority Date Indices published as part of the West Gallatin Enforcement Project. The
Application materials included interviews with the previous two farmers of the property (from 1996 –
2011) and long-time neighbor Al Lien, which confirmed that these rights have historically been exercised
across their periods of use and diversion from May to October.
32. Prior to 2006, the entire place of use (claimed 480 acres) was associated with 3.5 Farmer’s Canal
shares. According to information in the Application and the Bylaws of the Farmer’s Canal Company,
each share is worth 89 2/7 MI, for a total of 7.81 CFS. The property split in 2006, gave the Applicant
approximately 3.91 CFS. Farmer’s shares have 1890, 1891, and 1892 priority dates and are usually
curtailed by early July, according to call records from Water Commissioner George Alberda. Therefore,
these shares were historically exercised in the early season, until approximately the middle of July. Once
the change took place in 1988, the shares were not required for any portion of the irrigation. See the
Historical Consumptive Use Sub-Section below for further discussion.
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Groundwater Claims
33. The periods of diversion and use for the four groundwater claims are from June 1 – October 31.
These periods of diversion and use are the same as that for subject water rights 41H 30023118 and 41H
30023119.
34. While the irrigation systems for the subject water rights and the groundwater claims were
operated independently, Pat Ward and Josh Jones, previous farmers of the property from 1996 – 2011,
indicated in the Application materials that the groundwater irrigation system was operated during the
same time periods as the surface water rights were being exercised. The Application materials included
interviews with Pat Ward, Josh Jones, and long-time neighbor Al Lien, which confirmed that these rights
have historically been exercised across their periods of use and diversion.
Flow Rate
Subject Water Rights
35. Water was historically diverted from the West Gallatin River into the Farmer’s Canal and
conveyed 7.9 miles to the E. Minder lateral (see Figure 3, on the next page). Once in the lateral, water
was conveyed 3,600 feet to the Applicant’s pump, which supplied the sprinkler system. As discussed,
Farmer’s shares were held by the Applicant until 2006, but the shares did not substantively contribute to
irrigation after the change authorization in 1988. See the Historical Consumptive Use Sub-Section for
further discussion of the role of the shares. Pre-2006 data and post-2006 data show that the ditch rider
delivered the full flow rate of the private water rights to the secondary diversion point (E. Minder
Lateral). In this Application, the subject water rights are not credited with any conveyance losses along
Farmer’s Canal. The Applicant chose to attribute only late-season losses in the E. Minder Lateral to the
subject water rights because the shares provided carriage water in the early season. Using the
Department’s 2012 Historical Diverted Volume memorandum, the Applicant calculated a value of 9.8 AF
for the subject rights’ late-season conveyance losses in E. Minder. Travel distance in the lateral was 3,600
feet. The Montana Bureau of Mines and Geology (MBMG) calculates average ditch loss in the Gallatin
Valley as approximately 1.1 CFS/mile. Spreading the 9.8 AF of E. Minder conveyance loss across the
3,600-foot lateral over the 36-days of late season irrigation results in a loss rate of 0.20 CFS/mi, which is
reasonable when compared with the Valley-wide MBMG estimate above. The pump has a capacity of 800
GPM, which is based on a 75-HP Cornell pump (model 5WB75-2). The total combined flow rate under
these rights is 1,096.43 GPM. With the flow rate of the rights minus the flow rate lost to conveyance in
the lateral being available at the pump station, the excess water was discharged to Aajker Creek on the
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west edge of the property. In order to function properly, sprinkler irrigation systems typically require
water to be available at least in the amount of their operating flow rate, if not more. In this instance,
where the Applicant was pumping out of a ditch lateral, it is reasonable that a greater flow rate was
required in the ditch than the capacity of the sprinkler system itself in order to ensure that the system
functioned properly and that no air was introduced due to a lack of water. The excess water that was not
diverted by the pump was then spilled to Aajker Creek. Therefore, the full claimed flow rate of 1,096.43
GPM between the three subject rights is reasonable and required for the beneficial use of irrigation.
Figure 3: Map of historical place of use and conveyance system for the subject water rights. Water is diverted from the West Gallatin into Farmer’s Canal and thence into the E. Minder Lateral. Water is applied to the field from the
lateral, and excess water is discharged to Aajker Creek. Application Exhibit 30.
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Groundwater Claims
36. The Montana Water Court does not decree flow rates for natural subirrigation claims; however,
water in this system has always been controlled by a system of drain tiles, sunken concrete headgates, and
drain ditches, as indicated by the evidence in the file and the information submitted in this Application.
Based on this information, the Water Court decreed the claimed 1.25 CFS for each of these claims prior to
the splits received. (The flow rate for the remaining 43.22 acres is 1.21 CFS.) According to information
and evidence submitted in the Application, the four groundwater claims are supplemental and employ the
same infrastructure to divert water. The claim files for 41H 138902-00 and 41H 138903-00 indicate that a
500 GPM (1.11 CFS) pump was used to divert water. Pumps typically require water to be available at
least in amount of their operating flow rate, if not more. In this instance, it is reasonable that the
appropriator required water to be available slightly in excess of the pump’s operating flow rate so as to
ensure the system functioned properly and to avoid introducing air into the pump. Therefore, a flow rate
of 1.21 CFS is reasonable. Based on the available information, these four rights have an undivided
interest in the remaining 1.21 CFS flow rate. Applying the Department’s adjudication guideline of 17
GPM per acre to the 43.22 acres that were historically irrigated with the groundwater claims results in
1.64 CFS. The claimed flow rates are below the Department’s guideline. The Application materials state
that the sunken concrete headgates are approximately 4 feet by 6 feet, which would be sufficient to back
up the claimed flow rate. Groundwater in the project vicinity is shallow (less than 6 feet) and abundant –
the place of use is currently being subdivided for housing development and requires dewatering. The
claimed flow rate of 1.21 CFS is reasonable for the beneficial use of irrigating 43.22 acres.
Historical Consumptive Use
Subject Water Rights
37. 41H 30023120 was subject to Change Application 41H 929502, which moved the place of use for
its parent right from the Sime Ranch in Sections 25, 30, and 36 of T02 S, R04 E, to the current place of
use on the Norton Ranch in Section 9, T02 S, R05 E. This change was completed in 1988, and the goal
was to “supplement existing rights on the described land” and “extend the period of time this land will be
irrigated,” as described by the Applicant in Change Application 41H 929502. Historical use is calculated
for all three rights as of the date of completion of change 41H 929502 in 1988 because all three rights
were historically exercised in conjunction on the same place of use and are therefore completely
supplemental. The 1988 change did not constitute an enlargement of the parent right for 41H 30023120;
rather, it allowed for full-season irrigation of the same historically irrigated acreage. Water rights 41H
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30023118 and 41H 30023119 have been exercised on the place of use since appropriation (prior to the
1988 change and prior to the July 1, 1973, effective date of the Montana Water Use Act) as evidenced by
aerial photos from 1947 and 1979.
38. The three subject water rights were historically used on the same acreage. As such, historical use
has been quantified based on the total irrigated acreage. Each water right has been assigned historical use
based on its flow rate proportional to the total flow rate of all three rights: 1,096.43 GPM.
39. These rights were historically used in conjunction with shares from the Farmer’s Canal Company.
Prior to 1988, canal shares were more important in the operation of the irrigation system and likely
provided substantial conveyance water. The explicit goal of the 1988 change was to extend the irrigation
season. Farmer’s shares, as discussed previously, are typically cut off by early to mid-July, depending on
the year. Based on the monthly breakdown of the crop Irrigation Water Requirements, the two rights that
have always been exercised on the Norton Ranch (41H 30023118 and 41H 30023119) are capable of
providing sufficient consumptive use for the historically irrigated acreage until mid- to late July.
However, the shares likely played an important role in providing carriage water. The parent right for 41H
30023120 was added to the place of use in the 1988 change to extend the irrigation season. The Applicant
owned shares until 2006, but the shares did not provide any substantive water to the irrigation use after
the 1988 change. The shares were typically curtailed in mid-July and are being credited in this
Application with only early season conveyance losses. It is important to note that the shares were for both
the place of use involved in this Application and the nearby place of use in Section 8 (the originally
claimed place of use for the parent rights for the three subject rights is 480 acres in Sections 8 and 9).
Furthermore, the ditch rider’s notes submitted with the Application show that management practices of
the Farmer’s Canal were such that the full flow rate of the private water rights was delivered to the E.
Minder Lateral even after the Applicant stopped purchasing shares in 2006. Therefore, all historical
consumptive use can be attributed to the subject rights, but no conveyance loss for the Farmer’s Canal is
credited to them.
40. The Applicant used the historical consumptive use rules in ARM 36.12.1902 to calculate
historical consumptive use. The Bozeman Experiment Farm station irrigation water requirements for
alfalfa were used, in addition to the 1973 – 2006 Gallatin County Management Factor and 10%
irrecoverable loss for sprinklers. For the 137.90 acres that were historically irrigated, crop consumptive
use was 178.23 AF. With 70% efficiency for a sprinkler system, 254.62 AF was applied to the field, so
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the irrecoverable loss was 25.46 AF. The total historical consumed volume was therefore 203.69 AF.
These values were confirmed by Department hydrologist/specialist Brent Zundel in the Technical Report.
41. The typical irrigation pattern was four 10-day sets to irrigate the entire place of use. A second
irrigation of the field was conducted when alfalfa was grown. According to a description of the pattern of
use provided by Pat Ward and Josh Jones, the E. Minder Lateral headgate was typically opened in May
and water was applied until September and October. Given the pump capacity of 800 GPM and the
volume applied to the field of approximately 255 AF, irrigation took place over approximately 72 days.
Groundwater Claims
42. The Applicant provided substantial and credible evidence that the four groundwater claims were
exercised on the same 43.22 acres as part of the same irrigation system. As these rights were exercised
independently of the subject water rights and have not been subject to a change authorization, their
historical use is evaluated prior to July 1, 1973. The historical consumptive use rules in ARM 36.12.1902
were employed with the Bozeman Experiment Farm station irrigation water requirements for alfalfa were
used, the 1964 – 1973 Gallatin County Management Factor, and 5% irrecoverable loss for flood systems.
With 65% efficiency for graded border flood irrigation, the field applied volume was 68.60 AF. The total
volume consumed by 43.22 acres of crops was therefore 44.58 AF, with an additional 3.42 AF of
irrecoverable loss, for a total of 48.00 AF of consumed volume. These values were calculated by
Department hydrologist/specialist Brent Zundel in the Technical Report.
43. The four groundwater claims were historically used on the same acreage. As such, historical use
has been quantified based on the total irrigated acreage. Each water right has been assigned an equivalent
one-fourth portion of the historical use because the Applicant provided substantial, credible evidence that
these rights were fully supplemental, comingled, dependent upon the same infrastructure, and exercised
on the same 43.22 acres.
Diverted Volume
Subject Water Rights
44. The Applicant provided calculations for the diverted volume in Exhibit 10 of the Application and
in an updated version of Exhibit 10. These calculations were analyzed in the Technical Report. The
Applicant calculated the diverted volume using three components: (1) conveyance losses over the 72-day
irrigation period, (2) excess water spilled to Aajker Creek, and (3) the volume applied to the field.
Conveyance losses were calculated for two 36-day periods: (a) an early season when all rights are in
priority (June – July 17) and Farmer’s shares were used for conveyance water and (b) a late season (July
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18 – October) when only the Applicant’s subject water rights were still in priority. The Applicant
calculated conveyance losses in the Farmer’s Canal and the E. Minder Lateral according to the
Department’s 2012 historical diverted volume memo and attributed the losses to the subject water rights
in proportion to the other rights and shares in the ditch. However, additional information presented in the
Application indicates that the subject water rights did not contribute to ditch losses in the Farmer’s Canal.
45. While conveyance loss calculations represent a standard scenario, the Applicant has shown that,
under the Farmer’s Canal management practices, the full flow rate of the subject rights is delivered at the
E. Minder Lateral. This full flow rate was delivered both when shares were purchased prior to 2006 and
after that year, when shares were no longer purchased. While the Farmer’s Canal might generously be
delivering full flow now, future management has no guarantees. In this Application, the subject rights are
not credited with any conveyance losses in Farmer’s Canal, either early or late season. In the early season,
the shares provided all of the carriage water. By the late season, shares were no longer in priority, so the
private water rights being conveyed through Farmer’s had to provide carriage water. However, records
show that the ditch rider delivered the full flow rate of the subject rights to the E. Minder Lateral even in
the late season, so the subject rights are not credited with any conveyance losses in this Application. With
respect to conveyance losses in the E. Minder Lateral, shares provided early season carriage water, but the
subject rights are credited with late season conveyance water along the E. Minder (9.8 AF). The
Technical Report shows updated calculations for diverted volume. The diverted volume is calculated as
the volume of water applied to the field plus the volume of water spilled to Aajker Creek plus the volume
of water lost to conveyance in the E. Minder Lateral or, respectively, 254.62 AF + 87.18 AF + 9.8 AF =
351.60 AF. On July 12, 2016, the Applicant submitted “Revised Table 10 – Diversion Volume
Calculations” to the Department, updating the diverted volume calculations.
Groundwater Claims
46. For graded border systems with 0.75 – 1.5% slope, a standard scenario is 65% application
efficiency. Therefore, the diverted volume is calculated as 68.60 AF using the Department’s standard
methodology.
Return Flows
47. The Technical Report found that the historical practices of irrigation on 137.90 acres under the
subject rights would have resulted in the accrual of 50.95 AF to Aajker and Baxter Creeks. Under the
retirement of 103.55 acres as proposed in this Application, 12.70 AF of return flows would continue to
accrue. Therefore, 38.25 AF of return flows would no longer accrue as a result of this Application. The
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additional acreage of 26.40 acres was retired in the concurrent Norton-Bostwick Change Application.
7.95 acres are not bing changed. The June 7, 2016, Amendment proposes to change the groundwater
claims to mitigate any adverse effect from the loss of these return flows. See the Adverse Effect Section
for further discussion.
Supplemental Rights, Parent Rights, and Non-Use
48. See Figure 4, on the next page, for a map of the historical place of use and diversion and
conveyance systems for the groundwater claims. Figure 5, on page 27, contrasts the claimed place of use
for the groundwater rights and the place of use that was historically irrigated by the subject water rights.
Groundwater claims 41H 138898-00, 41H 138899-00, 41H 138902-00, and 41H 138903-00 were
originally supplemental to the subject water rights because their claimed places of use overlapped.
However, the Applicant provided evidence that the groundwater claims were historically exercised
independently on 43.22 acres in the SWNE and portions of the N½NWSE of Section 9. The Applicant
filed a Motion to Amend with the Water Court on April 29, 2016, to clarify the above-described place of
use of the groundwater claims and to remove the supplemental remarks. The Motion to Amend was
adopted in two different Master’s Reports dated November 16, 2016, and December 21, 2016. Thus, the
three subject water rights are supplemental to each other, and the four groundwater claims are
supplemental to each other, but the subject rights are not supplemental to the groundwater claims. No
overlap occurred between acreage irrigated under the groundwater claims and acreage irrigated under the
subject water rights. Figure 6, on page 28, shows the location of the Big Gun sprinkler and the wheel line
sprinkler systems that were used to irrigate the acreage under the subject water rights. Drain tiles were
installed in 1919, and the Applicant provided photographs of underground concrete headgates used to
control groundwater for irrigation. Interviews conducted by the Applicant’s consultant with two previous
farmers of the property, Pat Ward (1996 – 2002) and Josh Jones (2003 – 2011) indicated that the
groundwater system was operated independently on the northern third of the property (the SWNE and
N½NWSE of Section 9). Furthermore, longtime neighbor and former MSU Agricultural Experiment
Research Station employee Al Lien submitted an affidavit supporting the historical use of the
groundwater claims in this area. FSA maps from 2002 – 2014 indicate high groundwater levels in this
area. Finally, the Gallatin County Water Resources Survey and the associated field notes confirm
historical use as of 1953, mentioning an appropriation of “Seepage and Waste Water” by John E. Norton
and an appropriation of “Drainage [water]” by Roger Huffine. The field map produced by the Water
Resources Survey indicates that private irrigation water, not water supplied by Farmer’s Canal, was used
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on the groundwater claims’ place of use. Later aerial imagery from 1981, 1995, and 2001 further supports
historical use on 43.22 acres.
Figure 4: Map of historical place of use and system of tile drain ditches and headgates for the groundwater claims.
Application Exhibit 48.
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Figure 5: Map of claimed groundwater place of use and the place of use that was actually historically irrigated
under the subject rights. Application Exhibit 11.
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Figure 6: Location of Big Gun sprinklers and wheel line sprinklers, and the location of acreage irrigated under both
systems. Application Exhibit 29.
49. Between 2006 and 2014, as portions of the place of use were subdivided and sold, the Applicant
did not reserve the appurtenant water rights and, by operation of Montana law, inadvertently conveyed a
proportionate share of the water rights to the lot owners. The Applicant sought reconveyance of the water
rights from the lot owners; most agreed, but some did not respond, could not be located, or refused. The
Applicant submitted Form 641: Divided Interest Ownership Update, and three separate child rights were
created for those property owners: 41H 30069703, 41H 30069704, and 41H 30069705. The claimed place
of use of these child rights is 2.73 acres, but of the place of use that was actually historically irrigated
under these rights, only 1.37 acres were conveyed to the child rights, leaving a remainder of 138.63 acres.
After this process, the Applicant failed to file a number of deeds, so the proportionate share was conveyed
to these lot owners by operation of law. The Applicant again submitted Form 641: Divided Interest
Revised 07-2016
Preliminary Determination to Grant Page 29 of 52 Application to Change Water Right No. 41H 30103245
Ownership Update to the Department on December 12, 2016, to split off another 0.73 acres from the
subject water rights. The remaining acreage actually irrigated under the subject water rights is 140 – 1.37
– 0.73 = 137.90 acres.
50. The property was last fully irrigated nine years ago in 2006. Since this period is less than 10 years
from the date of submission of this Change Application, non-use is not evaluated.
Overview
51. Based on the findings above, historical use for the subject water rights is quantified in Table 3,
below.
Table 3: Historical Use of Subject Water Rights
Water Right No. Purpose (Acres) Flow
Rate
Div.
Volume
Cons. Use Period of
Use
Point of
Diversion
Place of
Use
Priority
Date
(41H) ( – ) (GPM) (AF) (AF) ( – ) ( – ) ( – ) ( – )
30023118
Parent 138901-00
Irrigation
(137.90) 370.53 118.82 68.84 6/1 –
10/31 SWNWNW Sec. 11, T0 3S,
R04 E
(Farmer’s Canal
headgate)
E½SW, W½SE, SENW,
SWNE,
Sec. 9, T02 S,
R05 E
10/15/1866
30023119
Parent
138900-00
Irrigation
(137.90) 167.86 53.83 31.18 6/1 – 10/31 6/15/1881
30023120
Parent
9295-00
Irrigation
(137.90) 558.04 178.95 103.67 5/1 – 10/1 6/1/1867
Total = 137.90 1,096.43 351.60 203.69
184 days
(5/1 –
10/31)
-- -- --
52. Based on the findings above, historical use for the groundwater claims is quantified in Table 4, on
the next page.
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Preliminary Determination to Grant Page 30 of 52 Application to Change Water Right No. 41H 30103245
Table 4: Historical Use of Groundwater Claims
Water Right No. Purpose (Acres)
Flow Rate1 Div. Volume Cons. Use
Period of Use Point of Diversion Place of Use Priority Date
(41H) ( – ) (CFS) (AF) (AF) ( – ) ( – ) ( – ) ( – )
138898-00 Irrigation
(43.22) 1.21 17.15 12.00 6/1 –
10/31
SWNWSE, Sec. 9,
T02 S, R05 E
SWNE,
SENW, NWSE, Sec. 9,
T02 S, R05 E
9/15/1919
138899-00
Irrigation
(43.22) 1.21 17.15 12.00 6/1 – 10/31 SWNWSE, Sec. 9, T02 S, R05 E 9/15/1919
138902-00
Irrigation
(43.22) 1.21 17.15 12.00 6/1 –
10/31
SWNWSE, Sec. 9,
T02 S, R05 E 9/15/1919
138903-00 Irrigation
(43.22) 1.21 17.15 12.00 6/1 –
10/31
SESWNE, Sec. 9,
T02 S, R05 E 9/15/1919
Total = 43.22 1.21 68.60 48.00
184 days
(5/1 – 10/31)
-- -- --
Notes: 1Undivided interest in the total flow rate of 1.21 CFS.
FINDINGS OF FACT – Adverse Effect
53. The Applicant proposes to change the place of use of 103.55 of the 137.90 acres that were
historically irrigated under the subject water rights in order to irrigate 58.86 new acres at the Sports
Complex. Water will be pumped out of an irrigation reservoir with a capacity of 14.3 AF and a surface
area of 2 acres. The irrigation demand includes the capacity of the reservoir. The only additional volume
consumed by the reservoir will be evaporation of 6.30 AF. The purpose will remain irrigation. An
additional 26.40 acres were changed in a concurrent application, 41H 30102910 (Norton-Bostwick).
According to the Department’s Technical Report, return flows historically accrued approximately evenly
to Aajker and Baxter Creeks, which are located on the western and eastern property boundaries,
respectively. Groundwater in the project vicinity is shallow (less than 6 feet) and is hydraulically
connected to Aajker and Baxter Creeks.
54. Return flows accrue within the same month as they were applied to the field because of the close
proximity to and hydraulic connection with Aajker and Baxter Creeks and the need for tile drains in the
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Preliminary Determination to Grant Page 31 of 52 Application to Change Water Right No. 41H 30103245
downflow field. Department hydrologist/specialist Brent Zundel performed the calculations and analysis
for these return flows using Department methods. The following table, Table 5, summarizes the return
flow analysis.
Table 5: Return Flow Analysis
Month
( – )
Return Flows under Historical Conditions on 137.90 acres
(AF)
Return Flows under Proposed Conditions on 34.35 acres
(AF)
Loss of Return Flows from Historical Conditions
(AF)
Loss of Return Flows from
Historical Conditions
(GPM)
Jan 0.00 0.00 0.00 0.00
Feb 0.00 0.00 0.00 0.00
Mar 0.00 0.00 0.00 0.00
Apr 0.00 0.00 0.00 0.00
May 0.97 0.24 0.73 5.33
Jun 12.61 3.14 9.47 71.43
Jul 18.57 4.62 13.94 101.76
Aug 15.91 3.96 11.94 87.16
Sep 2.90 0.72 2.18 16.44
Oct 0.00 0.00 0.00 0.00
Nov 0.00 0.00 0.00 0.00
Dec 0.00 0.00 0.00 0.00
TOTAL
=
50.95 12.70
38.25
--
55. The retirement of 103.55 acres will result in the loss of 38.25 AF of return flows associated with
the historical irrigation. Because return flows accrued evenly, 19.12 AF would be lost from Aajker Creek,
and 19.12 AF would be lost from Baxter Creek – this equates to an average rate of approximately 24
GPM over the course of the historical periods of use and diversion. Recorded water rights on Aajker and
Baxter Creeks downstream of the subject property total 15.94 CFS and 43.55 CFS, respectively. Aajker
and Baxter Creeks are located within the Upper Missouri River Basin, which was legislatively closed to
new appropriations with an effective date of April 16, 1993. DNRC does not have any measurement
information on Aajker and Baxter Creeks. In the Application as originally filed, the Applicant did not
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Preliminary Determination to Grant Page 32 of 52 Application to Change Water Right No. 41H 30103245
provide any further evidence to show that the lack of return flows accruing to these sources will not cause
an adverse effect. However, in the Amendment, received on June 7, 2016, the Applicant proposed to
incorporate the groundwater claims into the present Application in order to mitigate potential adverse
effect from the loss of return flows.
56. The Applicant did provide a plan to prevent adverse effect from return flows. The Applicant owns
four groundwater Statements of Claim (41H 138898-00, 41H 138899-00, 41H 138902-00, and 41H
138903-00) that were historically used on 43.22 acres. In the Application as originally filed, the Applicant
proposed that these water rights would be retired or no longer used and that the continuing dewatering of
this ground into the spring creek sources would be sufficient to prevent adverse effect. The Department
issued an April 29, 2016, Draft Preliminary Determination to Deny related Norton-Bostwick Change
Application 41H 30102910, which had used the same proposal. In that Determination, the Department
held that, without a change application, it could not make a determination regarding the adequacy of the
groundwater claims to mitigate the loss of return flows and neither could the Applicant provide assurance
that these rights would be used continuously into the future in this manner. Mitigation is a beneficial use
of water that would require reflection in the water right for a right to use the water in that manner. In their
June 7, 2016, Amendment, the Applicant proposed to incorporate a change to the groundwater claims into
the present Application.
57. Other appropriators may already rely on return flows from the groundwater claims, so only the
historically consumed volume may be changed to mitigate the loss of return flows from the retirement of
the subject water rights. As described in the Historical Use Section of this document, the groundwater
claims have a historical consumed volume of 48.00 AF and a diverted volume of 68.60 AF.
58. The groundwater claims are for groundwater, which will no longer be diverted from the
subsurface via the historical system of drain tiles, sunken concrete headgates, and drain ditches. As
discussed elsewhere in this document, groundwater in the area is shallow (less than 6 feet below ground
surface) and hydraulically connected to Aajker and Baxter Creeks. The historical groundwater place of
use and associated diversion infrastructure are located immediately adjacent to the place of use of the
subject water rights. Because of the hydraulic connection and the physical proximity, if a volume of water
from the groundwater claims were not diverted and were instead left in the subsurface, that volume of
water would be able to effectively mitigate an equivalent volume of return flows, lost due to the subject
water rights’ retirement, during the same time period in which those return flows would have accrued.
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Preliminary Determination to Grant Page 33 of 52 Application to Change Water Right No. 41H 30103245
59. In this Application, the Applicant proposes to retire a consumptive volume of 38.25 AF from the
groundwater claims in order to mitigate the loss of return flows associated with the 103.55 acres that are
being retired under the subject rights. The groundwater claims historically irrigated 43.22 acres with a
consumed volume of 48.00 AF total (1.11 AF consumed volume per acre). Therefore, 34.44 acres must be
retired in order to provide 38.25 AF of consumed volume to prevent any adverse effect from the loss of
return flows. Averaged out over the 153-day period of diversion and use (June 1 – October 31), this
equates to an average consumed flow rate of 56.60 GPM. The retirement of 34.44 acres from the
groundwater claims will be sufficient to prevent any adverse effect from the loss of return flows due to
the retirement of 103.55 acres from irrigation under the subject rights. This change will not adversely
affect other appropriators on Aajker or Baxter Creeks.
60. Changing the place of use of 103.55 acres will not have an adverse effect on owners of private
water rights or ditch shares in the Farmer’s Canal. The volume of water historically diverted to irrigate
those 103.55 acres will continue to be diverted into the Farmer’s Canal. No conveyance water in the
Farmer’s Canal is being changed. From the Farmer’s Canal, the water will be diverted into the Maynard-
Border ditch, which is a lateral located approximately 1 mile farther down ditch, as compared to the E.
Minder. According to information in the Application, the City of Bozeman obtained one Farmer’s Canal
share with the purchase of the Sports Complex and owns an additional 4.25 shares from previous
purchases. The combined 5.25 shares will be used to help convey the subject water rights to the new place
of use at the Sports Complex. Therefore, other rights and shares in the Farmer’s Canal that relied on
conveyance water from these rights will not be affected.
61. Changing the place of use of 103.55 acres will not have an adverse effect on owners of private
water rights or ditch shares in the E. Minder Lateral. There is only one other user on the E. Minder
Lateral: Kamp Enterprises. According to information provided by the president of the Farmer’s Canal to
the Applicant’s consultant and included in the Application materials, Kamp currently owns 3 2/3
Farmer’s shares. Water is diverted from the E. Minder Lateral to the Kamp place of use well before
reaching the Norton field. According to aerial imagery, the E. Minder Lateral traverses approximately 880
feet from the headgate on the Farmer’s Canal to the Kamp place of use. The effect of the loss of any
conveyance water associated with the Norton rights on Kamp’s ability to continue to convey their shares
through the E. Minder Lateral over such a short distance will not interfere with Kamp’s ability to
reasonably exercise its water rights.
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62. The Applicant has requested that the volume that was diverted but not applied to the field for the
7.95 acres for which no return flow mitigation is available also transfer to the City of Bozeman. The
consumed volume and the field-applied volume for these 7.95 acres cannot be changed because no
mitigation water is available to offset the loss of return flows. This leaves those 7.95 acres with no
conveyance water associated with them. See Finding of Fact 70 for further discussion.
63. The Applicant has also requested to expand the period of use of the subject water rights as part of
this Application. They propose to expand the period of use to May 1 through November 30 to allow
irrigation as required for local climatic conditions and irrigation requirements, using stored water. Water
stored in the irrigation reservoir will be used for this purpose, and no water will be diverted outside of the
historical periods of diversion. The historical use of the subject rights has been determined, and no
expansion of the consumed volume, diverted volume, or flow rate is occurring as a result of this change.
The source of water, the West Gallatin River, will not experience any additional demand as a result of this
change. The City of Bozeman also owns shares in Middle Creek Reservoir. These shares are marketed
and then used for municipal purposes by the City; as such, they would not require that a change
authorization account for subsequent storage in the Sports Complex irrigation reservoir. These shares
have a year-round period of use and period of diversion and could be used by the City as needed for early-
or late-season irrigation. As the reservoir is unlined, the City will account for any groundwater intercepted
by the reservoir by filing a Notice of Completion of Groundwater Development. A Notice of Completion
can be filed only after the groundwater development has been completed and the water put to use. The
expansion of the period of use will not adversely affect any other water users.
64. This change application does not require measurement or reporting conditions. The West Gallatin
River is an over-appropriated source with known issues – typically the district court appoints a water
commissioner every year. The water commissioner admeasures and distributes water to water right
holders based on priority and maintains records of the daily distribution of water. The commissioner will
distribute water to the Farmer’s Canal headgate, where it leaves the source of supply. The Farmer’s Canal
is an incorporated canal company and hires a ditch rider to distribute water to down-ditch users. After the
West Gallatin River water commissioner turns water into the Farmer’s Canal, the ditch rider will measure
and distribute water as it is conveyed to the Maynard-Border Ditch and Pipeline. The Maynard-Border
Group will likewise measure and distribute water until it reaches its new place of use at the City of
Bozeman Sports Complex. In May 7 – 8, 2018, emails and phone conversations, the City of Bozeman
confirmed that they will measure all water pumped from the irrigation reservoir. They plan to utilize
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Preliminary Determination to Grant Page 35 of 52 Application to Change Water Right No. 41H 30103245
SCADA (supervisory control and data acquisition) technology with a flowmeter and totalizer. The City is
a public entity, so these measurement records will be available upon request.
65. The historical use for the subject water rights and the groundwater claims involved in this change
has been determined and no expansion in use is occurring as a result of this change.
66. The Applicant has adequately shown the proposed change in appropriation right will not
adversely affect the use of the existing water rights of other persons or other perfected or planned uses or
developments for which a permit or certificate has been issued or for which a state water reservation has
been issued. §85-2-402(2)(a), MCA.
BENEFICIAL USE
FINDINGS OF FACT
Subject Water Rights
67. The Applicant proposes to use water for irrigation under the subject water rights. Irrigation is a
beneficial use of water in the State of Montana.
68. The Applicant proposes to change the irrigation place of use of the subject water rights, add a
place of storage, and expand the periods of use to enable them to use stored water from the irrigation
reservoir. They propose to irrigate 58.86 acres of turf grass at the City of Bozeman Sports Complex. The
City of Bozeman Sports Complex is located in Section 3, T03 S, R04 E, and will be bounded by Baxter
Lane, Flanders Mill Road, Oak Street, and Cottonwood Road. The City of Bozeman’s landscape architect
calculated irrigation demand at 159.37 AF of applied volume and, given the nature of the irrigation,
assumed that the full volume will be consumed. The City of Bozeman’s landscape architect calculated
irrigation demand at 159.37 AF of applied volume and, given the nature of turf grass irrigation, assumed
that the full volume will be consumed. The landscape architect used evapotranspiration estimates from
1994 – 2004 AgriMet data, which is compiled by the U.S. Bureau of Reclamation. Assuming six days of
watering per week, they computed daily evapotranspiration rates from April through October and then
computed daily and monthly total consumption numbers. In addition, they computed 8-, 10-, 16-, and 24-
hour daily flow rate demands. They repeated this exercise for the three types of irrigation proposed:
irrigated turf, irrigated planters, and supplemental irrigation of native grasses. The full calculations were
submitted as Appendix C of the November 1, 2016, Amendment. The reservoir capacity is included as
part of the irrigation demand. In addition, 6.30 AF will be lost to evaporation from the irrigation reservoir.
The total consumed volume for the new Sports Complex is the sum: 165.67 AF.
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Preliminary Determination to Grant Page 36 of 52 Application to Change Water Right No. 41H 30103245
69. The consumed volume remaining for change is 152.95 AF, which corresponds to the 103.55 acres
of the subject water rights. The Applicant has proposed to change the entire consumed volume to the new
Sports Complex. With the purchase of the Sports Complex property, the City also acquired water right
41H 30108500 and one Farmer’s Canal share. Through previous property purchases and annexations, the
City has additional Farmer’s shares. These additional water rights are analyzed in detail in subsequent
Findings of Fact in this section.
70. The remaining diverted volume that corresponds to the 103.55 acres is 292.33 AF. The Applicant
has proposed to change this entire diverted volume. In addition, they have proposed to change the
diverted but not applied volume associated with the 7.95 acres for which no return flow mitigation is
available. The consumed volume and the field-applied volume for these 7.95 acres cannot be changed
because no mitigation water is available to offset the loss of return flows. The Technical Report
calculated the difference between the diverted and the field-applied ratios for this acreage, with a result of
5.59 AF. The total diverted volume requested for change is 292.33 + 5.59 = 297.92 AF. The full diverted
volume is needed for the use of irrigation at the Sports Complex and to convey the water an additional
one mile down the Farmer’s Canal to the Maynard Border headgate and an additional 1.5 miles down the
Maynard Border Ditch. The additional flow rate from 41H 30108500 and the Farmer’s Shares will
provide sufficient conveyance through the additional length of the Farmer’s Canal and the Maynard
Border Ditch. Conveyance losses through the Maynard Border Pipeline will be negligible because it is a
closed system.
71. With the purchase of the Sports Complex property, the City acquired water right 41H 30108500,
which has 60.57 AF of diverted volume at a flow rate of 74.50 GPM for irrigation of 80 acres, and one
Farmer’s Canal share. The place of use of 41H 30108500 is the Sports Complex. The City has an
additional 4.25 Farmer’s shares, acquired through previous purchases and annexations. Each Farmer’s
share has a flow rate of 89 2/7 MI (2.23 CFS), so the total flow rate of Farmer’s shares available for use at
the Sports Complex is 11.72 CFS. The Farmer’s shares will help provide conveyance water and applied
and consumed water while the shares are in priority earlier in the irrigation season until they are cut off,
typically around July 10. A portion of the applied and consumptive use will also come from the City’s
water right 41H 30108500. Later in the season when the Farmer’s shares are no longer in priority, the
additional historically diverted but not consumed volume from the subject water rights will provide
conveyance water. The full historical diverted volume is necessary for the beneficial use of irrigation at
the Sports Complex and for conveyance to the new place of use.
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Preliminary Determination to Grant Page 37 of 52 Application to Change Water Right No. 41H 30103245
72. The City of Bozeman owns shares in Middle Creek Reservoir. These shares are marketed and
then used for municipal purposes by the City; as such, they would not require that a change authorization
account for subsequent storage in the Sports Complex irrigation reservoir. These shares have a year-round
period of use and period of diversion and could be used by the City as needed for early-season irrigation
at the Sports Complex before the May 1 start date for the earliest of the subject water rights or for late-
season irrigation. The shares give the City flexibility in irrigating at either end of the season, as local
climatic conditions and plant type warrant. As the irrigation reservoir is unlined, the City will account for
any groundwater intercepted by the reservoir by filing a Notice of Completion of Groundwater
Development. A Notice of Completion can be filed only after the groundwater development has been
completed and the water put to use.
73. As part of the November 1, 2016, Amendment to the Application, the Applicant’s consultant used
flow rate demands from the City of Bozeman’s landscape architect and compared them to the current
water supplies available to the City for this project. The City’s flow rate deficit ranges across the
irrigation season, but peaks in late July, with an estimated deficit of 2.55 CFS. The landscape architect
calculated flow rate demand at the Sports Complex. The consultant then estimated flow rate demand at
the Farmer’s Canal headgate, the main point of diversion for the subject water rights. The landscape
architect calculated daily demands, and the consultant used the 16-hour per day flow rate demands to
estimate use for each month. Each month was then broken up into quarters. The consultant further
estimated the reliability of the Farmer’s shares and water right 41H 30108500. The reservoir will provide
storage to buffer surges in demand as compared to supply. Farmer’s shares are typically cut off by early
to mid-July. The subject water rights will provide 1.83 CFS, so the full flow rate from the subject water
rights is needed. See the November 1, 2016, Amendment and the revised Exhibit 55 for further
discussion.
74. The capacity of the reservoir is 14.3 AF with a surface area of 2 acres. The water stored in the
reservoir is included as part of the irrigation demand. The expansion of the period of use to May 1
through November 30 will allow the Applicant additional flexibility in the irrigation of the City Sports
Complex. Water stored in the irrigation reservoir will be applied as appropriate, given local climatic
conditions and plant demands. An expanded period of use to maintain healthy turf grass fits within the
beneficial use of water for irrigation purposes.
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Preliminary Determination to Grant Page 38 of 52 Application to Change Water Right No. 41H 30103245
Groundwater Claims
75. The Applicant proposes to use water for mitigation under the groundwater claims. Mitigation is a
beneficial use of water in the State of Montana.
76. The purpose will be changed from irrigation to water left instream (i.e., not diverted from the
subsurface) for mitigation of the loss of 38.25 AF of return flows associated with the change of 103.55
acres of the subject water rights. In order to provide 38.25 AF of historical consumptive use, 34.44 acres
need to be retired under the groundwater claims. Averaging the 38.25 AF volume out across the 153-day
(June 1 to October 31) period of diversion and use equates to a mitigation flow rate of 56.60 GPM.
Because the groundwater claims are fully supplemental, consumed volume and consumed flow rate are
assigned to all four in equal proportions. See Table 7 below.
Table 7: Groundwater Claims Mitigation Volume and Flow Rate by Application
Water Right Number
Acres Retired1 Consumed Volume Consumed Flow Rate
(41H) (ac) (AF) (GPM)
138898-00
34.44
9.57 14.15
138899-00 9.56 14.15
138902-00 9.56 14.15
138903-00 9.56 14.15
TOTAL = 34.44 38.25 56.60
Notes: 1These claims are fully supplemental, so 34.44
acres will be retired from all of them.
ADEQUATE DIVERSION
FINDINGS OF FACT
Subject Water Rights
77. The Farmer’s Canal is an important irrigation canal in the Gallatin Valley, and the West Gallatin
is also an important source of irrigation water in the Valley. Two 10-foot Parshall flumes located
approximately 300 feet down ditch of the Farmer’s Canal headgate measure flow into the canal. Water
entering the canal is measured by the West Gallatin Water Commissioner. The West Gallatin is an over-
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Preliminary Determination to Grant Page 39 of 52 Application to Change Water Right No. 41H 30103245
appropriated source with known issues – typically, the district court appoints a water commissioner every
year. The findings in this document will be incorporated into the Department’s database and reflected in
the water right abstracts. The Water Commissioner will be provided with an updated water right index in
order to effectively distribute water to the Farmer’s Canal. Once water is diverted into the Farmer’s Canal
headgate, the Canal also employs a ditch rider to distribute water deliveries to owners of private water
rights conveyed in the canal and to shareholders. The ditch rider will likewise be able to employ updated
records to distribute water. As discussed previously in this document, the Farmer’s Canal has an
estimated maximum capacity of 250 CFS. The Farmer’s Canal is an adequate means of diversion and
conveyance for the proposed project.
78. After being conveyed through the Farmer’s Canal, water under the subject rights will be
conveyed approximately 1.5 miles down the Maynard Border Ditch to the Maynard Border Pipeline.
From there, a valve will direct water to the proposed irrigation reservoir at the Sports Complex place of
use. The Maynard Border Ditch begins at a headgate off the Farmer’s Canal in the NWSENW of Section
15, T02 S, R05 E. From there, it travels generally north, crosses Huffine Lane/U.S. Highway 191, and
terminates into a pipeline in the N½N½NW of Section 10. The pipeline was constructed in 1993 as part of
a cost-share program sponsored by the NRCS to improve irrigation water management. The Applicant
provided copies of “Valley West Subvidision – Phase #3, Supplement to Maynard Border Ditch Intake
Plans,” “Drainage Plan, Valley West Subdivision, Planned Unit Development,” and related design
calculations and design drawings. All of these submittals and designs were prepared by licensed
professional engineers at Morrison-Maierle Inc. and submitted to the City of Bozeman Engineering
Department. The “Drainage Plan” document indicated the capacities of the Maynard Border Ditch at
various points along its length: 39 CS at the Farmer’s headgate, 50 CFS at the Huffine Lane/U.S.
Highway 191 crossing, and 99 CFS at the Babcock Street Crossing. The “Valley West Subdivision”
supplement document indicated that the pipeline’s capacity was 33.4 CFS, but that it typically carried
16.1 CFS of irrigation water. Both the Maynard Border Ditch and the Maynard Border Pipeline are
adequate means of diversion and conveyance and have the capacity to convey the additional flow rate
proposed in this Application.
79. The Applicant submitted preliminary plans for the Sports Complex and the associated irrigation
system. Water will be directed through a valve on the Maynard Border Pipeline to the irrigation reservoir.
The reservoir’s storage will provide a continuous flow of water to the sprinkler system. From the
reservoir, water will be pumped out into a sprinkler system for irrigation of approximately 58.86 acres of
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Preliminary Determination to Grant Page 40 of 52 Application to Change Water Right No. 41H 30103245
turf grass. The irrigation system is being designed by Steiner-Thuesen PLLC, a landscape architecture
firm whose principals are licensed landscape architects in the State of Montana. The system is being
designed to apply the portion of the subject water rights being changed in this application and the
additional water rights that are appurtenant to the Sports Complex. These are the water sources that are
available to the City for use. The City of Bozeman maintains an Engineering Department with licensed
professional engineers who will oversee the design and construction of the irrigation works described in
this document and in the Application.
Groundwater Claims
80. This Application proposes to change the groundwater claims to the purpose of mitigation.
Pursuant to §85-2-402 (2)(b)(iii), MCA, changes for mitigation are not required to prove by a
preponderance of the evidence that the proposed means of diversion, construction, and operation of the
appropriation works are adequate.
POSSESSORY INTEREST
FINDINGS OF FACT
Subject Water Rights
81. The Applicant signed the affidavit on the application form affirming the applicant has possessory
interest, or the written consent of the person with the possessory interest, in the property where the water
is to be put to beneficial use.
82. The City of Bozeman owns the ultimate place of use for the subject water rights. Exhibit 1 of the
Application is a “Memorandum of Agreement for Norton Ranch Subdivision Water Adequacy
Requirements” in which the City agrees to purchase the portion of the subject water rights identified in
this document upon successful completion of a change of use application from the Department. It is clear
that the ultimate user will not accept the supply without consenting to the use of water.
Groundwater Claims
83. This Application proposes to change the subject water rights to the purpose of mitigation.
Pursuant to §85-2-402 (2)(d)(iii), MCA, changes for mitigation are not required to prove by a
preponderance of the evidence that they have a possessory interest in the property where the water is to be
put to beneficial use.
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CONCLUSIONS OF LAW
HISTORIC USE AND ADVERSE EFFECT
84. Montana’s change statute codifies the fundamental principles of the Prior Appropriation Doctrine.
Sections 85-2-401 and -402(1)(a), MCA, authorize changes to existing water rights, permits, and water
reservations subject to the fundamental tenet of Montana water law that one may change only that to
which he or she has the right based upon beneficial use. A change to an existing water right may not
expand the consumptive use of the underlying right or remove the well-established limit of the
appropriator’s right to water actually taken and beneficially used. An increase in consumptive use
constitutes a new appropriation and is subject to the new water use permit requirements of the MWUA.
McDonald v. State, 220 Mont. 519, 530, 722 P.2d 598, 605 (1986)(beneficial use constitutes the basis,
measure, and limit of a water right); Featherman v. Hennessy, 43 Mont. 310, 316-17, 115 P. 983, 986
(1911)(increased consumption associated with expanded use of underlying right amounted to new
appropriation rather than change in use); Quigley v. McIntosh, 110 Mont. 495, 103 P.2d 1067, 1072-74
(1940)(appropriator may not expand a water right through the guise of a change – expanded use
constitutes a new use with a new priority date junior to intervening water uses); Allen v. Petrick, 69 Mont.
373, 222 P. 451(1924)(“quantity of water which may be claimed lawfully under a prior appropriation is
limited to that quantity within the amount claimed which the appropriator has needed, and which within a
reasonable time he has actually and economically applied to a beneficial use. . . . it may be said that the
principle of beneficial use is the one of paramount importance . . . The appropriator does not own the
water. He has a right of ownership in its use only”); Town of Manhattan, at ¶ 10 (an appropriator’s right
only attaches to the amount of water actually taken and beneficially applied); Town of Manhattan v.
DNRC, Cause No. DV-09-872C, Montana Eighteenth Judicial District Court, Order Re Petition for
Judicial Review, Pg. 9 (2011)(the rule that one may change only that to which it has a right is a
fundamental tenet of Montana water law and imperative to MWUA change provisions); In the Matter of
Application to Change a Water Right No. 41I 30002512 by Brewer Land Co, LLC, DNRC Proposal For
Decision and Final Order (2004).1
85. Sections 85-2-401(1) and -402(2)(a), MCA, codify the prior appropriation principles that
Montana appropriators have a vested right to maintain surface and ground water conditions substantially
as they existed at the time of their appropriation; subsequent appropriators may insist that prior
1 DNRC decisions are available at:
http://www.dnrc.mt.gov/wrd/water_rts/hearing_info/hearing_orders/hearingorders.asp
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appropriators confine their use to what was actually appropriated or necessary for their originally intended
purpose of use; and, an appropriator may not change or alter its use in a manner that adversely affects
another water user. Spokane Ranch & Water Co. v. Beatty, 37 Mont. 342, 96 P. 727, 731 (1908);
Quigley, 110 Mont. at 505-11,103 P.2d at 1072-74; Matter of Royston, 249 Mont. at 429, 816 P.2d at
1057; Hohenlohe, at ¶¶43-45.2
86. The cornerstone of evaluating potential adverse effect to other appropriators is the determination
of the “historic use” of the water right being changed. Town of Manhattan, at ¶10 (recognizing that the
Department’s obligation to ensure that change will not adversely affect other water rights requires
analysis of the actual historic amount, pattern, and means of water use). A change applicant must prove
the extent and pattern of use for the underlying right proposed for change through evidence of the historic
diverted amount, consumed amount, place of use, pattern of use, and return flow because a statement of
claim, permit, or decree may not include the beneficial use information necessary to evaluate the amount
of water available for change or potential for adverse effect.3 A comparative analysis of the historic use
of the water right to the proposed change in use is necessary to prove the change will not result in
expansion of the original right, or adversely affect water users who are entitled to rely upon maintenance
of conditions on the source of supply for their water rights. Quigley, 103 P.2d at 1072-75 (it is necessary
to ascertain historic use of a decreed water right to determine whether a change in use expands the
underlying right to the detriment of other water user because a decree only provides a limited description
of the right); Royston, 249 Mont. at 431-32, 816 P.2d at 1059-60 (record could not sustain a conclusion of
no adverse effect because the applicant failed to provide the Department with evidence of the historic
diverted volume, consumption, and return flow); Hohenlohe, at ¶44-45; Town of Manhattan v. DNRC,
Cause No. DV-09-872C, Montana Eighteenth Judicial District Court, Order Re Petition for Judicial
2 See also Holmstrom Land Co., Inc., v. Newlan Creek Water District,185 Mont. 409, 605 P.2d 1060 (1979);
Lokowich v. Helena, 46 Mont. 575, 129 P. 1063(1913); Thompson v. Harvey, 164 Mont. 133, 519 P.2d 963 (1974)(plaintiff could not change his diversion to a point upstream of the defendants because of the injury resulting
to the defendants); McIntosh v. Graveley, 159 Mont. 72, 495 P.2d 186 (1972)(appropriator was entitled to move his point of diversion downstream, so long as he installed measuring devices to ensure that he took no more than would
have been available at his original point of diversion); Head v. Hale, 38 Mont. 302, 100 P. 222 (1909)(successors of the appropriator of water appropriated for placer mining purposes cannot so change its use as to deprive lower
appropriators of their rights, already acquired, in the use of it for irrigating purposes); and, Gassert v. Noyes, 18 Mont. 216, 44 P. 959(1896)(change in place of use was unlawful where reduced the amount of water in the source of
supply available which was subject to plaintiff’s subsequent right). 3A claim only constitutes prima facie evidence for the purposes of the adjudication under § 85-2-221, MCA. The
claim does not constitute prima facie evidence of historical use in a change proceeding under §85-2-402, MCA. For example, most water rights decreed for irrigation are not decreed with a volume and provide limited evidence of
actual historic beneficial use. §85-2-234, MCA
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Review, Pgs. 11-12 (proof of historic use is required even when the right has been decreed because the
decreed flow rate or volume establishes the maximum appropriation that may be diverted, and may
exceed the historical pattern of use, amount diverted or amount consumed through actual use); Matter of
Application For Beneficial Water Use Permit By City of Bozeman, Memorandum, Pgs. 8-22 (Adopted by
DNRC Final Order January 9,1985)(evidence of historic use must be compared to the proposed change in
use to give effect to the implied limitations read into every decreed right that an appropriator has no right
to expand his appropriation or change his use to the detriment of juniors).4
87. An applicant must also analyze the extent to which a proposed change may alter historic return
flows for purposes of establishing that the proposed change will not result in adverse effect. The requisite
return flow analysis reflects the fundamental tenant of Montana water law that once water leaves the
control of the original appropriator, the original appropriator has no right to its use and the water is
subject to appropriation by others. E.g., Hohenlohe, at ¶44; Rock Creek Ditch & Flume Co. v. Miller, 93
Mont. 248, 17 P.2d 1074, 1077 (1933); Newton v. Weiler, 87 Mont. 164, 286 P. 133(1930); Popham v.
Holloron, 84 Mont. 442, 275 P. 1099, 1102 (1929); Galiger v. McNulty, 80 Mont. 339, 260 P. 401
(1927); Head v. Hale, 38 Mont. 302, 100 P. 222 (1909); Spokane Ranch & Water Co., 37 Mont. at 351-
52, 96 P. at 731; Hidden Hollow Ranch v. Fields, 2004 MT 153, 321 Mont. 505, 92 P.3d 1185; In the
Matter of Application for Change Authorization No. G (W)028708-411 by Hedrich/Straugh/Ringer,
4 Other western states likewise rely upon the doctrine of historic use as a critical component in evaluating changes
in appropriation rights for expansion and adverse effect: Pueblo West Metropolitan District v. Southeastern Colorado Water Conservancy District, 717 P.2d 955, 959 (Colo. 1986)(“[O]nce an appropriator exercises his or her
privilege to change a water right … the appropriator runs a real risk of requantification of the water right based on actual historical consumptive use. In such a change proceeding a junior water right … which had been strictly
administered throughout its existence would, in all probability, be reduced to a lesser quantity because of the relatively limited actual historic use of the right.”); Santa Fe Trail Ranches Property Owners Ass'n v. Simpson, 990
P.2d 46, 55 -57 (Colo.,1999); Farmers Reservoir and Irr. Co. v. City of Golden, 44 P.3d 241, 245 (Colo. 2002)(“We [Colorado Supreme Court] have stated time and again that the need for security and predictability in the prior
appropriation system dictates that holders of vested water rights are entitled to the continuation of stream conditions as they existed at the time they first made their appropriation); Application for Water Rights in Rio Grande
County, 53 P.3d 1165, 1170 (Colo. 2002); Wyo. Stat. § 41-3-104 (When an owner of a water right wishes to change a water right … he shall file a petition requesting permission to make such a change …. The change … may be
allowed provided that the quantity of water transferred … shall not exceed the amount of water historically diverted under the existing use, nor increase the historic rate of diversion under the existing use, nor increase the historic
amount consumptively used under the existing use, nor decrease the historic amount of return flow, nor in any manner injure other existing lawful appropriators.); Basin Elec. Power Co-op. v. State Bd. of Control, 578 P.2d 557,
564 -566 (Wyo,1978) (a water right holder may not effect a change of use transferring more water than he had historically consumptively used; regardless of the lack of injury to other appropriators, the amount of water
historically diverted under the existing use, the historic rate of diversion under the existing use, the historic amount consumptively used under the existing use, and the historic amount of return flow must be considered.)
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DNRC Final Order (Dec. 13, 1991); In the Matter of Application for Change Authorization No.
G(W)008323-G76l By Starkel/Koester, DNRC Final Order (Apr. 1, 1992); In the Matter of Application to
Change a Water Right No. 41I 30002512 by Brewer Land Co, LLC, DNRC Proposal For Decision and
Final Order (2004); Admin. R.M. 36.12.101(56)(Return flow - that part of a diverted flow which is not
consumed by the appropriator and returns underground to its original source or another source of water -
is not part of a water right and is subject to appropriation by subsequent water users).5
88. Although the level of analysis may vary, analysis of the extent to which a proposed change may
alter the amount, location, or timing return flows is critical in order to prove that the proposed change will
not adversely affect other appropriators who rely on those return flows as part of the source of supply for
their water rights. Royston, 249 Mont. at 431, 816 P.2d at 1059-60; Hohenlohe, at ¶¶ 45-6 and 55-6;
Spokane Ranch & Water Co., 37 Mont. at 351-52, 96 P. at 731. Noted Montana Water Law scholar Al
Stone explained that the water right holder who seeks to change a water right is unlikely to receive the
full amount claimed or historically used at the original place of use due to reliance upon return flows by
other water users. Montana Water Law, Albert W. Stone, Pgs. 112-17 (State Bar of Montana 1994).
89. In Royston, the Montana Supreme Court confirmed that an applicant is required to prove lack of
adverse effect through comparison of the proposed change to the historic use, historic consumption, and
historic return flows of the original right. 249 Mont. at 431, 816 P.2d at 1059-60. More recently, the
Montana Supreme Court explained the relationship between the fundamental principles of historic
beneficial use, return flow, and the rights of subsequent appropriators as they relate to the adverse effect
analysis in a change proceeding in the following manner:
The question of adverse effect under §§ 85-2-402(2) and -408(3), MCA, implicates return
flows. A change in the amount of return flow, or to the hydrogeologic pattern of return flow, has the potential to affect adversely downstream water rights. There consequently exists an inextricable link between the “amount historically consumed” and the water that
re-enters the stream as return flow. . . . An appropriator historically has been entitled to the greatest quantity of water he can put
to use. The requirement that the use be both beneficial and reasonable, however,
proscribes this tenet. This limitation springs from a fundamental tenet of western water law-that an appropriator has a right only to that amount of water historically put to
beneficial use-developed in concert with the rationale that each subsequent appropriator
5 The Montana Supreme Court recently recognized the fundamental nature of return flows to Montana’s water
sources in addressing whether the Mitchell Slough was a perennial flowing stream, given the large amount of irrigation return flow which feeds the stream. The Court acknowledged that the Mitchell’s flows are fed by
irrigation return flows available for appropriation. Bitterroot River Protective Ass'n, Inc. v. Bitterroot Conservation Dist. 2008 MT 377, ¶¶ 22, 31, 43, 346 Mont. 508, ¶¶ 22, 31,43, 198 P.3d 219, ¶¶ 22, 31,43(citing Hidden Hollow
Ranch v. Fields, 2004 MT 153, 321 Mont. 505, 92 P.3d 1185).
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“is entitled to have the water flow in the same manner as when he located,” and the appropriator may insist that prior appropriators do not affect adversely his rights.
This fundamental rule of Montana water law has dictated the Department’s
determinations in numerous prior change proceedings. The Department claims that historic consumptive use, as quantified in part by return flow analysis, represents a key
element of proving historic beneficial use.
We do not dispute this interrelationship between historic consumptive use, return flow, and the amount of water to which an appropriator is entitled as limited by his past
beneficial use.
Hohenlohe, at ¶¶ 42-45 (internal citations omitted).
90. The Department’s rules reflect the above fundamental principles of Montana water law and are
designed to itemize the type evidence and analysis required for an applicant to meet its burden of proof.
Admin.R.M. 36.12.1901 through 1903. These rules forth specific evidence and analysis required to
establish the parameters of historic use of the water right being changed. Admin.R.M. 36.12.1901 and
1902. The rules also outline the analysis required to establish a lack of adverse effect based upon a
comparison of historic use of the water rights being changed to the proposed use under the changed
conditions along with evaluation of the potential impacts of the change on other water users caused by
changes in the amount, timing, or location of historic diversions and return flows. Admin.R.M.
36.12.1901 and 1903.
91. Applicant seeks to change existing water rights represented by its Water Right Claims. The
“existing water rights” in this case are those as they existed prior to July 1, 1973, because with limited
exception, no changes could have been made to those rights after that date without the Department’s
approval. Analysis of adverse effect in a change to an “existing water right” requires evaluation of what
the water right looked like and how it was exercised prior to July 1, 1973. In McDonald v. State, the
Montana Supreme Court explained:
The foregoing cases and many others serve to illustrate that what is preserved to owners of appropriated or decreed water rights by the provision of the 1972 Constitution is what
the law has always contemplated in this state as the extent of a water right: such amount
of water as, by pattern of use and means of use, the owners or their predecessors put to beneficial use. . . . the Water Use Act contemplates that all water rights, regardless of
prior statements or claims as to amount, must nevertheless, to be recognized, pass the test
of historical, unabandoned beneficial use. . . . To that extent only the 1972 constitutional recognition of water rights is effective and will be sustained.
220 Mont. at 529, 722 P.2d at 604; see also Matter of Clark Fork River Drainage Area, 254 Mont. 11, 17,
833 P.2d 1120 (1992).
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92. Water Resources Surveys were authorized by the 1939 legislature. 1939 Mont. Laws Ch. 185, §
5. Since their completion, Water Resources Surveys have been invaluable evidence in water right
disputes and have long been relied on by Montana courts. In re Adjudication of Existing Rights to Use of
All Water in North End Subbasin of Bitterroot River Drainage Area in Ravalli and Missoula Counties,
295 Mont. 447, 453, 984 P.2d 151, 155 (1999)(Water Resources Survey used as evidence in adjudicating
of water rights); Wareing v. Schreckendgust, 280 Mont. 196, 213, 930 P.2d 37, 47 (1996)(Water
Resources Survey used as evidence in a prescriptive ditch easement case); Olsen v. McQueary, 212 Mont.
173, 180, 687 P.2d 712, 716 (1984) (judicial notice taken of Water Resources Survey in water right
dispute concerning branches of a creek).
93. While evidence may be provided that a particular parcel was irrigated, the actual amount of water
historically diverted and consumed is critical. E.g., In the Matter of Application to Change Water Right
No. 41H 1223599 by MGRR #1, LLC., DNRC Proposal for Decision adopted by Final Order (2005). The
Department cannot assume that a parcel received the full duty of water or that it received sufficient water
to constitute full service irrigation for optimum plant growth. Even when it seems clear that no other
rights could be affected solely by a particular change in the location of diversion, it is essential that the
change also not enlarge an existing right. See MacDonald, 220 Mont. at 529, 722 P.2d at 604;
Featherman, 43 Mont. at 316-17, 115 P. at 986; Trail's End Ranch, L.L.C. v. Colorado Div. of Water
Resources 91 P.3d 1058, 1063 (Colo., 2004).
94. The Department has adopted a rule providing for the calculation of historic consumptive use
where the applicant proves by a preponderance of the evidence that the acreage was historically irrigated.
Admin. R. M. 36.12.1902 (16). In the alternative an applicant may present its own evidence of historic
beneficial use. In this case Applicant has elected to proceed under Admin. R.M. 36.12.1902. (FOF Nos.
37 – 43).
95. If an applicant seeks more than the historic consumptive use as calculated by Admin.R.M
.36.12.1902 (16), the applicant bears the burden of proof to demonstrate the amount of historic
consumptive use by a preponderance of the evidence. The actual historic use of water could be less than
the optimum utilization represented by the calculated duty of water in any particular case. E.g.,
Application for Water Rights in Rio Grande County 53 P.3d 1165 (Colo., 2002) (historical use must be
quantified to ensure no enlargement); In the Matter of Application to Change Water Right No. 41H
1223599 by MGRR #1, LLC., supra; Orr v. Arapahoe Water and Sanitation Dist. 753 P.2d 1217, 1223 -
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1224 (Colo., 1988)(historical use of a water right could very well be less than the duty of water); Weibert
v. Rothe Bros., Inc., 200 Colo. 310, 317, 618 P.2d 1367, 1371 - 1372 (Colo. 1980) (historical use could
be less than the optimum utilization “duty of water”).
96. Based upon the Applicant’s evidence of historic use, the Applicant has proven by a
preponderance of the evidence that the historical use of Water Right Claim Nos. 41H 30023118, 41H
30023119, and 41H 30023120 (the subject water rights) is a diverted volume of 351.60 AF, a consumed
volume of 203.69 AF, and a flow rate of 1,096.43 GPM. (FOF Nos. 15 – 52)
97. Based upon the Applicant’s evidence of historic use, the Applicant has proven by a
preponderance of the evidence that the historical use of Water Right Claim Nos. 41H 138898-00, 41H
138899-00, 41H 138902-00, and 41H 138903-00 (the groundwater claims) is a diverted volume of 68.60
AF, a consumed volume of 48.00 AF, and a flow rate of 1.21 CFS. (FOF Nos. 15 – 52)
98. The Applicant has proven that the proposed change in appropriation right will not adversely
affect the use of the existing water rights of other persons or other perfected or planned uses or
developments for which a permit or certificate has been issued or for which a state water reservation has
been issued. §85-2-402(2)(b), MCA. (FOF Nos. 53 – 66).
BENEFICIAL USE
99. A change applicant must prove by a preponderance of the evidence the proposed use is a
beneficial use. §§85-2-102(4) and -402(2)(c), MCA. Beneficial use is and has always been the hallmark
of a valid Montana water right: “[T]he amount actually needed for beneficial use within the appropriation
will be the basis, measure, and the limit of all water rights in Montana . . .” McDonald, 220 Mont. at 532,
722 P.2d at 606. The analysis of the beneficial use criterion is the same for change authorizations under
§85-2-402, MCA, and new beneficial permits under §85-2-311, MCA. Admin.R.M. 36.12.1801. The
amount of water that may be authorized for change is limited to the amount of water necessary to sustain
the beneficial use. E.g., Bitterroot River Protective Association v. Siebel, Order on Petition for Judicial
Review, Cause No. BDV-2002-519, Montana First Judicial District Court (2003) (affirmed on other
grounds, 2005 MT 60, 326 Mont. 241, 108 P.3d 518); Worden v. Alexander, 108 Mont. 208, 90 P.2d 160
(1939); Allen v. Petrick, 69 Mont. 373, 222 P. 451(1924); Sitz Ranch v. DNRC, DV-10-13390, Montana
Fifth Judicial District Court, Order Affirming DNRC Decision, Pg. 3 (2011)(citing BRPA v. Siebel, 2005
MT 60, and rejecting applicant’s argument that it be allowed to appropriate 800 acre-feet when a typical
year would require 200-300 acre-feet); Toohey v. Campbell, 24 Mont. 13, 60 P. 396 (1900)(“The policy
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of the law is to prevent a person from acquiring exclusive control of a stream, or any part thereof, not for
present and actual beneficial use, but for mere future speculative profit or advantage, without regard to
existing or contemplated beneficial uses. He is restricted in the amount that he can appropriate to the
quantity needed for such beneficial purposes.”); §85-2-312(1)(a), MCA (DNRC is statutorily prohibited
from issuing a permit for more water than can be beneficially used).
100. The Department may issue a change authorization for less than the amount of water requested,
but may not issue a change authorization for more water than is requested or more water than can be
beneficially used without waste for the purpose stated in the application. §85-2-312, MCA; see also,
McDonald v. State, 220 Mont. 519, 722 P.2d 598 (1986); Toohey v. Campbell, 24 Mont. 13, 60 P. 396
(1900).
101. The Applicant proposes to use the subject water rights for irrigation and the groundwater claims
for mitigation, which are recognized beneficial uses §85-2-102(4), and -420 MCA. The Applicant has
proven by a preponderance of the evidence that, under the subject water rights, a diverted volume of
297.92 AF, a consumed volume of 152.95 AF, and a flow rate of 1.83 CFS (1,096.43 GPM) are the
amounts needed to sustain the beneficial use of irrigation from May 1 to October 31 at the City of
Bozeman Sports Complex. The Applicant has proven by a preponderance of the evidence that, under the
groundwater claims, a consumed volume of 38.25 AF at a rate of 59.60 GPM from June 1 to October 31
is the amount needed to mitigate the loss of return flows caused by the change of 103.55 acres under the
subject water rights and to sustain the beneficial use of mitigation. §85-2-402(2)(c), MCA (FOF Nos. 67 –
76).
ADEQUATE MEANS OF DIVERSION
Subject Water Rights
102. Pursuant to §85-2-402 (2)(b), MCA, the Applicant must prove by a preponderance of the
evidence that the proposed means of diversion, construction, and operation of the appropriation works are
adequate. This codifies the prior appropriation principle that the means of diversion must be reasonably
effective for the contemplated use and may not result in a waste of the resource. Crowley v. 6th Judicial
District Court, 108 Mont. 89, 88 P.2d 23 (1939); In the Matter of Application for Beneficial Water Use
Permit No. 41C-11339900 by Three Creeks Ranch of Wyoming LLC (DNRC Final Order
2002)(information needed to prove that proposed means of diversion, construction, and operation of the
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appropriation works are adequate varies based upon project complexity; design by licensed engineer
adequate).
103. Pursuant to §85-2-402 (2)(b), MCA, applicant has proven by a preponderance of the evidence that
the proposed means of diversion, construction, and operation of the appropriation works are adequate for
the proposed beneficial use. (FOF Nos. 77 – 80)
Groundwater Claims
104. Pursuant to §85-2-402 (2)(b), MCA, the Applicant is not required to prove that the proposed
means of diversion, construction, and operation of the appropriation works are adequate because this
application involves a (iii) a change in appropriation right pursuant to 85-2-420 for mitigation or
marketing for mitigation.
POSSESSORY INTEREST
Subject Water Rights
105. Pursuant to §85-2-402(2)(d), MCA, the Applicant must prove by a preponderance of the evidence
that it has a possessory interest, or the written consent of the person with the possessory interest, in the
property where the water is to be put to beneficial use. See also Admin.R.M. 36.12.1802
106. The Applicant has proven by a preponderance of the evidence that it has a possessory interest, or
the written consent of the person with the possessory interest, in the property where the water is to be put
to beneficial use. (FOF Nos. 81 – 83)
Groundwater Claims
107. Pursuant to §85-2-402(2)(d), MCA, the applicant is not required to prove that it has a possessory
interest, or the written consent of the person with the possessory interest, in the property where the water
is to be put to beneficial use because this application involves a (iii) a change in appropriation right
pursuant to §85-2-420 MCA for mitigation or marketing for mitigation.
Salvage Water
108. This Application does not involve salvage water.
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PRELIMINARY DETERMINATION
Subject to the terms and analysis in this Preliminary Determination Order, the Department
preliminarily determines that this Application to Change Water Right No. 41H 30103245 should be
granted subject to the following.
The Applicant is authorized to change the place of use of, add a place of storage to, and expand
the period of use of the subject water rights: 41H 30023118, 41H 30023119, and 41H 30023120. Under
these three water rights, up to 297.92 AF of water at a combined flow rate of 1.83 CFS may be diverted
from the West Gallatin River at the Farmer’s Canal headgate in the SWNWNW of Section 11, T03 S,
R04 E, Gallatin County, for irrigation of 58.86 acres at the City of Bozeman Sports Complex, located in
the W½NW of Section 3, T02 S, R05 E. The Applicant is authorized to add a place storage: an irrigation
reservoir located in the SESWNW of Section 3. The period of diversion remains unchanged, but the
Applicant may pump water stored under the subject water rights from the reservoir for the purpose of
irrigation during an expanded period of use from May 1 to November 30.
The Applicant is further authorized to change partially the purpose, place of use, and point of
diversion of groundwater claims: 41H 138898-00, 41H 138899-00, 41H 138902-00, and 41H 138903-00.
Under these four rights 34.44 acres of irrigation will be retired in order to leave 38.25 AF of groundwater
at a rate of 56.60 GPM in the subsurface from June 1 through October 31 at points in the NWSENW and
NESWNE of Section 9, T02 S, R05 E, Gallatin County. These two points constitute the new place of use
and point of diversion.