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HomeMy WebLinkAbout11-24-25 Public Comment - K. Berry - UDC Public Comment from the Open Channels Working GroupFrom:Katherine Berry To:Bozeman Public Comment Subject:[EXTERNAL]UDC Public Comment from the Open Channels Working Group Date:Monday, November 24, 2025 2:28:33 PM Attachments:25.11.24 Open Channels Public Comment- UDC.pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Thank you for your consideration, please see the attached from the Open Channels WorkingGroup. Best, Katherine -- Katherine Berry, Water Policy Manager Gallatin Watershed Councilwww.gallatinwatershedcouncil.org | katherine@gallatinwatershedcouncil.org Cell: 860-558-3323 To: Bozeman City Commission From: Open Channels Working Group Date: November 24th, 2025 Re: The City of Bozeman Unified Development Code Update - Agricultural Water User Facilities Dear Commissioners, Thank you for your continued work updating the Unified Development Code, as this is one of the most consequential opportunities to protect the irrigation ditch infrastructure that passes through Bozeman. The Open Channels Working Group is a collaboration of people with technical expertise and hands-on experience at the intersection of water and agriculture in the Gallatin Valley. Throughout the UDC revision process, our group has provided recommendations to strengthen the City’s regulatory framework so that it supports water users and aligns with state law. Unfortunately, most of these recommendations are not reflected in the latest draft. The rights of irrigators are simple, though our code is nuanced. We are resubmitting our previous recommendations (with one additional recommendation for managing stormwater discharge) to make the development review process more consistent, clear, and enforceable when it comes to protecting irrigation facilities (Appendix A). Additionally, we’ve provided examples of strong subdivision language from other municipalities or counties in Montana (Appendix B). We appreciate the recent meeting we had with City staff and Commissioners so we could understand how our comments were viewed. We understand the need to consider potential overreach, project timelines, case law, property rights, and growth in the development code. But the reality on the ground is clear: the current code is not working the way it’s intended. Applicants don’t always obtain written consent to discharge stormwater or dewatering water into a ditch. Partial abandonments decided through ditch agreements are routinely misinterpreted as abandonment system-wide. Ditch companies and water right holders are absorbing the consequences of development, including water quality impacts, ditch interference and increased maintenance, and blame for downstream flooding. At a time of rapid growth and limited capacity in the agricultural community, weakening and obscuring these protections is a disservice to our neighbors, putting water conveyance, flood control, infrastructure, aquifer recharge, instream flows, and local trust at risk. Thank you for your attention to this, and we urge you to amend the code before adoption to address these discrepancies. Sincerely, The Open Channels Working Group Katherine Berry Water Policy Manager Gallatin Watershed Council Lilly McLane Restoration Director Gallatin Watershed Council Sue Duncan Board Member Association of Gallatin Agricultural Irrigators Kevin Haggerty Secretary Middle Creek Ditch Company Rebecca Kurnick Partnership Coordinator Association of Gallatin Agricultural Irrigators Harley Harris Founding Member Gallatin Water Trust Megan Casey Staff Attorney Trout Unlimited Patrick Byorth Montana Water Director Trout Unlimited APPENDIX A. Recommendations Agricultural water user facilities (Sec. 38.310.010.) RECOMMENDATION 1: Clearly state that Montana State Law prohibits interference with canal or ditch easements without written consent. HOW: Explicitly state that consent from the easement holder is required for any proposed activity, such as realignment, relocation, crossing, diversion, discharge, or other impacts. Relocate A. Purpose. 2. to B. Notice requirements concerning agricultural water user facilities. WHY: Our biggest concern stems from on-the-ground experiences: developers are failing to obtain the proper written consent before moving, abandoning, or discharging water—such as stormwater or dewatering water—into a ditch. City staff note their hesitancy to mandate written consent in the code because state law is constantly evolving, and that making reference to MCA, § 70-17-112 is sufficient. However, our code, both the existing version and present draft, includes written consent requirements for certain impacts in Sec. 38.410.060 - Easements. For applicants, city staff, and irrigators alike, this inconsistency makes the code unclear and confusing to follow. State law makes protection clear: A person may not encroach upon or otherwise impair any easement for a canal or ditch unless the holder of the canal or ditch easement consents in writing. Written consent should be stated clearly in each section of the code that regulates agricultural water user facilities, particularly Sec. 38.310.010 - Agricultural water user facilities, to reduce conflicts and ensure compliance with state law. Many municipalities and counties across Montana explicitly require written consent to interfere with a ditch. Examples have been compiled in Appendix B. Most of the language in A. Purpose. 2. was originally located under Sec. 38.410.060 - Easements. While a purpose statement provides important clarity about intent, it does not function as a procedural requirement. The paragraph explicitly includes the statement that, “Relocation or realignment must be approved by the facility owner.” This language belongs in the section where it can be implemented. Easements (Sec. 38.410.060.) RECOMMENDATION 2: Clarify that all agricultural water user facilities are associated with an existing easement established and maintained by the ditch company or authorized representative. HOW: Strengthen the code with clear, directive terms such as “must provide” or “are required to submit” to further reduce ambiguity and ensure consistent application. Remove the minimum 10-foot easement width and any language implying that developers are responsible for establishing new easements on agricultural water user facilities. WHY: Generally, ditch companies and water right owners hold water rights, a prescriptive easement to convey water through a ditch itself, and a secondary easement for access and maintenance under state law. An easement on a ditch is worked out between the ditch’s authorized representative and the developer based on what is needed and reasonable on-site due to access points, topography, maintenance, conveyance capability, and more. Current language around the establishment or existence of easements is ambiguous, using terms such as “may be required” or “may be subject to,” which imply uncertainty about existing rights. It also suggests that developers are responsible for establishing the ditch easement themself, which is inaccurate and inconsistent with state law. Removing the minimum easement and clarifying ditch users’ rights underscores the importance of coordination with ditch companies and sets expectations for both parties from the get-go. RECOMMENDATION 3: Clearly state that written consent is required from a ditch company if the applicant is proposing to discharge stormwater or dewatering water into a ditch. HOW: In the November 18th City Commission meeting, City staff recommended reverting back to the original language in Sec. 38.410.060 - Easements where written consent is required for a developer to discharge stormwater into a ditch. Extend the same requirement for construction dewatering water. For example, the paragraph could be edited to read, “Stormwater and construction dewatering water must not be discharged to an agricultural water user facility without written approval from the owner of the facility and corresponding stormwater conveyance easements.” WHY: We appreciate the City’s willingness to address concerns about replacing the written consent requirement with a standard that discharge must not “unreasonably impair” a ditch easement. Applying the same written consent requirement to construction dewatering would clearly establish that any discharge must occur in coordination with, and with approval from, authorized ditch users. Irrigators report that developers are increasingly obtaining DEQ permits for stormwater or construction dewatering discharges, but are not obtaining permission from authorized users to discharge into the ditch. Stormwater or groundwater dewatering discharge, especially when not planned for in coordination with a ditch’s authorized user, is an inherent impairment under MCA 70-17-112. The quality of water entering a ditch directly affects downstream users, and added volume can exceed the ditch’s capacity, leading to flooding, erosion, and infrastructure damage. Municipalities and counties across Montana explicitly include written consent requirements for discharging stormwater (Appendix B), and Gallatin County’s language includes stormwater, snowmelt runoff, and water from dewatering activities. Submittal Materials and Requirements. (Division 38.710.) RECOMMENDATION 4: Require written consent from the ditch company or authorized representative when a developer proposes to encroach or impact it in any way. (See #1) RECOMMENDATION 5: Require the submission of written consent to discharge stormwater or dewatering water into a ditch. Include a dewatering permit in Sec. 38.710.020. (See #3) APPENDIX B. Written Consent Requirements: Relocation, alteration, and stormwater discharge in Subdivision Regulations. Location Written Consent Language Stormwater Language Missoula The subdivider shall, unless otherwise provided under a separate written agreement or filed easement, show on the preliminary plat and dedicate on the final plat any required irrigation easements. Subdivisions shall be designed to prevent stormwater runoff from subdivision lots, roads, and lawn watering from draining into agricultural water facilities or onto agricultural land. Gallatin County Before any maintenance, improvements, or modifications are performed on or within any easement(s) in which a Water Conveyance Facility is located, or on any secondary easement set forth in Section 70-17-112(1) MCA, which would encroach upon or otherwise impair such easement(s), written permission must be obtained from the water users and/or Water Conveyance Facility’s authorized representatives or holder of the canal or ditch easement. Unless there is written consent from the appropriate water users and/or Water Conveyance Facility’s authorized representatives, the Subdivision shall be designed and developed so stormwater, snowmelt runoff, water from dewatering activities, or other water originating from within the boundaries of the Subdivision, does not run into or become captured by any Water Conveyance Facility. Billings Explain any modification or relocation of ditches or any easements to be provided with the subdivision. The subdivider shall notify the affected ditch company of the subdivision and shall obtain permission to reroute or alter the ditch in any way. New storm water generated from a subdivision shall not be discharged into an irrigation facility unless the subdivider receives written approval from the appropriate irrigation district and/or water user prior to final plat approval. Yellowstone County Explain any modification or relocation of ditches or any easements to be provided with the subdivision. The subdivider shall notify the affected ditch company of the subdivision and shall obtain permission to reroute or alter the ditch in any way New storm water generated from a subdivision shall not be discharged into an irrigation facility unless the subdivider receives written approval from the appropriate agricultural water user facility prior to final plat approval.