Loading...
HomeMy WebLinkAboutAdministrative Order No. 2013-07 Adoption of Water Adequacy Administrative Procedures Manual ADMINISTRATIVE ORDER. 2013 07 Adoption of Water Adequacy Administrative Procedures Manual Pursuant to Bozeman. Municipal Code §38.23.180.D, the attached Administrative Procedures Manual is hereby adopted. DATED this clay of November, 2013. Chris A. Kukulski, City Manager WATER ADEQUACY REQUIREMENTS ADMINISTRATIVE PROCEDURES MANUAL CITY OF BOZEMAN, MONTANA November 19, 2013 Admin Order 2013-07 Page i of 9 WATER.ADEQUACY REQUIREMENTS ADMINISTRATIVE PROCEDURES MANUAL CIIT OF BOO MAN, MON7A1VA I. PURPOSE 11. DEFINITIONS 111. DEMAND CALCULATION METHODOLOGIES IV. WATER RIGHT TRANSFERS V. CASH IN LIEU OF WATER RIGHT TRANSFERS VI, USE OF FUNDS VII. COLLECTION OF FEES VIII. APPEALS Admin Order 2013-07 Page ii of 9 WATER ADEQUACY REQUIREMENTS ADMINISTRATIVE PROCEDURES MANUAL CITY OF BOZEMAN, MONTANA 1. PURPOSE This document shall be referred to as the Administrative Procedures Manual, hereinafter known as the "Manual." The following administrative procedures contained in this Manual are intended to provide guidance to staff in administering the Water Rights Ordinance, codified in Chapter 38, Article 23 of the Bozeman Municipal Code, hereinafter known as the "Ordinance" as it may be amended from time to time. This Manual shall be adopted by administrative order by the City Manager, and updated periodically to reflect administrative changes or upgrades to demand calculations. The standards of this Manual shall be reviewed at least every two years. The purpose of the Water Rights Ordinance is to obtain water rights to support new development within the City's urban growth area (includes areas within the existing City limits and areas outside the City limits and within the City's approved urban growth area). This purpose shall be achieved through the transfer of water rights to the City or the payment of fees to the City to be used to acquire additional water rights. The purpose for requiting a transfer of water rights or payment in lieu thereof is to enhance the public health, safety, and welfare through a provision designed to enable the City to meet the future water supply needs of property within the City's urban growth area. 11. DEFINITIONS In addition to the above and to terms and phrases defined in the Ordinance, the following terms or phrases are defined for use in this Manual: A. "adequacy" and/or"adequate for City purposes"as used in this Manual means water of sufficient quality and quantity that is legally and physically available to serve water demands of City development. B. "average annual water demand" as used in this Manual means the amount of water sufficient to serve the estimated equivalent units of anticipated water usage for the development. C. "fully developed"as used in this Manual means completed development based upon the City's regulations applicable to the developed property. D. "redevelopment" as used in this Manual means reuse, change in use or further development of property resulting in an increase in water demand. E. "water right" as used in this Manual means the right to use water as documented by a claim to an existing right, a pen-nit, a certificate of water right, or other legally authorized diversion of water for beneficial use. Admin Order 2013-07 Page 1 of 9 111. DEMAND CALCULATION METHODOLOGIES Water rights and/or cash-in-lieu thereof shall be provided to the City at an amount equal to the anticipated average annual water demand of time fully developed property. A. Residential Uses. Water demand and cash in lieu of water rights for residential uses are calculated on the basis of an average residential unit. Average residential water demand values are derived from detailed analysis of City water billing records covering the period 2.000 — 2010 in conjunction with analysis of the City's GIS database and MT Dept of Revenue building database. 1. Average Single-Household Residential Unit Basis: Single- household residential includes any living unit situated upon its own individual parcel (detached single-household structures, and attached townhouse structures). Single-household residential demand = 0.234 AFlyrISH unit 2. Average Multi-Household Residential Unit Basis: Multi-unit residential includes multiple living units situated upon a parcel held in common ownership or shared use (condominium structures, and apartment structures). Multi-household residential demand = 0.124 AF,y)-IMH unit B. Commercial, Industrial and Institutional CII) Uses. Water demand and cash in lieu of water rights for CII uses will be calculated on the basis of comparable account water usage from City billing records, or on the basis of a detailed accounting of water-using fixtures and devices. The City and developer shall agree on the appropriate methodology prior to the developer providing water rights or cash in lieu. I. Comparable Water Usage Basis: The City and developer will cooperate to determine a mutually agreeable list of at least five comparable water accounts from City billing records. The list will be considered final. The City will then query these billing records for a minimum period of three years and for each account will determine an annual average water demand per square foot of commercial building space, or other appropriate demand unit. The high and low unit demand values will be dropped and the remaining values averaged and applied to the proposed/existing building area to calculate the annual average water demand in units of acre-feet. In the event less than five comparable accounts exist with at least three years of billing records then the average of these accounts will be used without dropping the high and low values. Cash in lieu payment shall be provided or guaranteed prior to final development approval. 2. Detailed Accounting Method. The developer may provide a detailed report documenting anticipated annual average water demand in acre-feet for review by the City. The report shall be certified by a professional engineer or registered architect. All sources referenced in the report shall be cited appropriately and provided as attachments to the report. The developer will provide water rights or cash in lieu only Admin Order 2013-07 Page 2 of'9 after the City has accepted the report and prior to final development approval. The City may require as a condition of report acceptance that the developer enter into an agreement wherein actual water use will be monitored for a specified period of time in order to determine if additional water or cash in lieu is necessary. In the event the volume or flow rate of water represented by the water right transfer or payment of cash in lieu is less than the anticipated annual average water demand required to serve the fully- developed property, the applicant will transfer adequate supplemental water rights or cash in lieu thereof to the City to provide for the deficiency. The Developer shall execute all necessary documentation to allow an assessment to be placed against the property such that the balance of the cash in lieu amount owed shall be a lien upon the property and invoiced and paid through the Gallatin County offices in the same manner as other municipal assessments against the property. This documentation will be forwarded to the City Treasurer for annual assessment pursuant to 7-13-4309, MCA. C. Non-Potable Water. A development may propose the installation of non- potable water systems for irrigation or other approved uses. The installation of a non- potable water system may result in a reduction in the arnival average water demand calculation equal to the amount of water provided by the non-potable water system over the period in which it is used. To receive credit against the annual average water demand calculation the development must: 1. Establish ownership or sufficient interest in the water right to be used for the system. 3. Obtain prior approval from the City of the proposed system. 3. Design and install the system in accordance with the requirements of the City and any other agency with applicable jurisdiction. IV. WATER. RIGHT TRANSFERS A. Types of Water Rights. The various types of water rights subject to the Ordinance and this Manual include, but are not necessarily limited to, the following: Provisional Permits, Groundwater Certificates, Exempt Rights, Shares of irrigation companies or water user associations, Statements of Claim., Reserved Claims, and Water Reservations issued by or on file with the Montana Department of Natural Resources and Conservation (DNRC).. Prior to transferring any water right into City ownership for purposes of satisfying the Ordinance, the Public Works Director shall deter ine if the water right is adequate for City purposes based on written analysis of the City Engineer and City Attorney. The Public Works Director's decision shall be final unless a timely appeal is filed pursuant to Section VIII of this Manual. The Public Works Director may, and at their discretion, accept a fee simple transfer of the water right directly as is; or, prior to fee simple transfer, inay require a water right to complete a change application process with the DNRC pursuant to this Section. The determination of whether the water right is adequate for City purposes shall be based upon.,but not necessarily limited to, the below-listed factors. 1. Maximum flow rate,maximum volume, and maximum area of use; Adnin Order 2013-07 Page;3 of 2. Type of source, means of diversion, means of conveyance; 3. Priority date, purpose of use, point of diversion, place of use, period of use, and period of diversion; 4. Legal status of the water right, including documentation of all adjudication proceedings concerning the water right and status of any issue remarks of the water court[e.g. status in Preliminary Temporary Decree for the Gallatin River Basin (Basin 41 H)]; 5. History of any calls made on the water right by senior appropriators, and identification of whether the right is subservient to other rights at the place of use; 6. Physical availability of water at the water right's point of diversion and place of use; 7. Evidence of historic use including, but not necessarily limited to: most recent year the water right was used; flow rate, total volume, and consumptive volume of historic diversions; 8. Feasibility of changing the water right to City's existing point(s) of diversion, for use in the City's water service area, for municipal water supply purposes including analysis of adverse effect to existing water rights by changing the point of diversion.; and 9. Clear ownership of the water right and ability to convey clear title and ownership to the City. B. Form of transfer and conveyance of water right. The transfer of water rights pursuant to the Ordinance and this Manual shall be in such forms as may be approved by the City. The Public Works Director, at their discretion, may require a direct transfer of the water right as is, or may require a DNRC change application be completed before accepting the transfer. The applicant shall execute all documents required by the City and/or any other governmental entity that may be necessary to achieve the purposes of the Ordinance and this Manual. The applicant will diligently pursue approval of the water right transfer and shall, at its sole expense, be responsible for preparing applications and documents to complete the transfer. Those documents may include, but are not limited to, DNRC change applications, deeds to transfer fee simple title of the water rights, DNRC water rights ownership update forms, and any other documents or forrns determined necessary. I. In the event the volurne or flow rate of water represented by the water right transfer, or resulting volume or flow rate of the water right after completion of a DNRC change application, is less than the anticipated annual average water demand required to serve the fully-developed property, the applicant will transfer adequate supplemental water rights or cash in lieu thereof to the City to provide for the deficiency prior to final development approval. C. Changed Water Right Transfer Option. If the Public Works Director requires the completion of a DNRC change application prior to accepting the transfer, the applicant shall have eighteen months from the date of preliminary development approval to file a correct and complete change application(s) with the DNRC, and 3 years to complete the transfer of water to the City. The applicant shall cause the legal transfer of the water to the City including the execution of any necessary document(s), forrn(s), or Admin Order 2013-07 Page 4 of 4 request(s) in accordance with any applicable and governing docurnents or laws. In the event the transfer has not been completed within the three year term provided, the applicant will provide cash in lieu unless a contested case hearing has been initiated, I Change Applrcation. Prior to filing any change application with the DN.RC, the applicant shall provide written notice and a copy of the proposed application to the City, which shall have no less than ten full working days prior to the application being filed to provide written comments concerning the content and sufficiency of the proposed change application. The City agrees to execute and deliver, without additional consideration, any instruments and documents, and to take such further actions as applicant or the DNRC may request and as may be necessary in order to complete the change application. Under no circumstance, including failure by the City to submit comments as provided for herein, shall the act of filing change application(s) be construed as satisfying the transfer requirement for development approval. 2. Prior to final development approval, and if the DNRC change application process for the water right has not been completed within the 3-year tern provided, the applicant shall execute all necessary documentation to allow an assessment to be placed against the property such that the balance of the cash in lieu arnount owed shall be a lien upon the property and invoiced and paid through the Gallatin County ,offices in the same manner as other municipal assessments against the property. This documentation will be forwarded to the City Treasurer for annual assessment pursuant to 7-13-4309, MCA. D. Direct Water Rig_ht ,Transfer Option. The applicant must convey fee simple title of the water right to the City by appropriate conveyance instrument, as determined by the City. If required, cash in lieu shall be provided to cover any volume or flow rate deficit prior to final acceptance of the transfer. E. Excess Water Rights, To the extent the water rights associated with the subject property exceed the anticipated annual average water demand for the fully developed property as determined pursuant to Section III, the City and the applicant may agree as follows with respect to any such excess water rights: (1) to transfer any amount of the excess water rights to the City and, in exchange, the City may pay the applicant for the excess water rights to be transferred to the City an amount of money agreed upon by the City and the applicant; or (2) to transfer the excess water rights to the City in exchange for unit credits associated with water provided through the City's domestic water system to be applied to other property owned by the applicant within the City's approved urban growth area, subject to the provisions of this Manual; or(3) to donate the excess water rights to the City, in exchange for evidence of the donated value. In the event the excess water rights are transferred to the City, the transfer will be processed simultaneously with, and as a part of, the transfer process outlined in this Section. The intent of this subsection is to provide the City means to acquire excess water rights that are no longer needed by the applicant. F. Payment of Costs. The applicant shall pay the City for all costs associated with (1) the City's determination and evaluation of the anticipated water demand and Admin Order 2013-07 Page 5 of 9 usage for the subject property, and (2) completing the transfer of the water rights to the City consistent with this Section. The term "costs" as used in this subsection shall include, but is not limited to, City staff time, engineering; fees, consultant fees, attorneys' fees, application fees, publication fees, and any other fees or charges associated with processing and recording the transfer of water rights. V. CASH IN LIEU OF WATER RIGHTS A. Cash in Lieu. In the event: (1) no water rights are associated with the property; or (2) the Public Works Director determines the water rights associated with the property are not adequate for transfer; or (3) the Public Works Director determines the water rights to be transferred to the City are unable to supply the entire anticipated average annual water demand for the fully developed property, or (4) in the case of redevelopment, where anticipated average annual water demand is one acre-foot or more greater than historic demand, then the City shall require the owner(s) of the subject property pay to the City cash in lieu of water rights based on the demand methodologies set forth in Section 111. B. Water Demand and Cash in Lieu Unit Cost. The calculation of average annual water demand shall be expressed in units of acre-feet per year. The calculation of the cash in lieu fee shall be the annual average water demand multiplied by a unit cost value established by City Commission Resolution. Cash in lieu must be paid at the rate established at the time of conditional development approval. VI.. USE OF FUNDS A. Any water rights obtained pursuant to the Ordinance and this Manual shall become assets of the City domestic water utility and part of the City's water system. B. All money paid to the City pursuant to the Ordinance and this Manual shall be paid to the City water fund and designated for: (i) purchase of water rights and to process applications for new water rights for the City to be added to the City domestic water utility system; and (ii) alternatively, to the extent permitted by the laws of the State of Montana, the City may, but is not required to, use the money deposited into the City water fund pursuant to this chapter to finance water conservation measures that enhance the efficiency of the City's municipal water system. VII. COLLECTION OF FEES A. Payment of cash in lieu is required prior to final development approval unless a deferral is authorized pursuant to §38.23.180.C., BMC. B. A redevelopment is exempt from the adequacy requirement of the Ordinance if a prior transfer of water rights or cash in lieu was accepted for the development and the anticipated annual water demand of the redevelopment is one acre foot or less than that which the prior transfer or cash in lieu was provided. Admin Order 2013-07 Page 6 of 9 C. A development is exempt from the Ordinance if the anticipated annual demand is one acre foot or less and is proposed for lands annexed to the City prior to May 29, 1984. VIII. APPEALS Any determination committed to the Public Works Director will be reviewed by the City Manager; provided the affected applicant serves a written notice to the City requesting the review within fourteen business days of the issuance of the written detennination of the Public Works Director. If a written notice requesting review is not timely served upon the City, then the Public Works Director's determination shall be the filial decision of the City. If a written notice requesting review is timely served on the City, the City Manager shall review the deterniffiation of the Public Works Director and issue a final decision within twenty calendar days of the service of the notice requesting review on the City. Any final decision within the limited scope of this subsection may be appealed for abuse of discretion by filing all appeal in the Eighteenth Judicial District Court, Gallatin County, Montana within twenty-one calendar days of the date of the filial decision. Admin Order 2013-07 Page 7 of 9